REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2122     OF 2012 (Arising out of SLP(C)No.16734 of 2011)

KAPIL MUNI KARWARIYA … APPELLANT                Vs.

CHANDRA NARAIN TRIPATHI  … RESPONDENT

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. On  2nd March,  2009,  a  Notification  under  

Section 14 of the Representation of the People Act,  

1951, hereinafter referred to as the “1951 Act”,  

was issued by the Election Commission of India to  

constitute  the  15th Lok  Sabha  by  calling  upon  

Parliamentary  Constituencies  of  India  to  elect  

Members of the House of the People (Lok Sabha).   

3. District  Allahabad  consists  of  two  

Parliamentary  Constituencies,  namely,  51-Phulpur  

Parliamentary  Constituency  and  52-Allahabad  

Parliamentary  Constituency.   The  District  

Magistrate,  Allahabad,  was  appointed  by  the  

Election  Commission  of  India  as  the  Returning  

Officer for 51-Phulpur Parliamentary Constituency.  

The Returning Officer notified the date of filing  

of nomination papers from 28th March, 2009, to 4th  

April, 2009, from 11.00 a.m. to 3.00 p.m.  Separate  

dates  were  given  for  the  other  stages  of  the  

election.  The date of polling was fixed on 16th  

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April, 2009 and the date of counting was fixed on  

16th May, 2009, a month later, when the results were  

to be declared.   

4. The Special Leave Petition is directed against  

the judgment and order dated 5th May, 2011, passed  

by the Allahabad High Court (Election Tribunal) in  

Election  Petition  No.1  of  2009,  filed  by  the  

Respondent herein, Shri Chandra Narayan Tripathi @  

Chandu  Tripathi,  in  connection  with  the  said  

election,  under  Sections  80,  80A/81  of  the  

Representation  of  the  People  Act,  1951,  for  a  

declaration that the election of Shri Kapil Muni  

Karwaria as a Member of Parliament from 51-Phulpur  

Parliamentary Constituency of District Allahabad be  

set aside and be declared null and void.  The said  

prayer was made in the background of the rejection  

of his nomination paper for election to the said  

Constituency  by  the  Returning  Officer.  The  said  

Chandra  Narain  Tripathi,  who  is  the  Respondent  

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herein, filed his nomination paper for election to  

the said Lok Sabha constituency as a candidate of  

Krantikari  Jai  Hind  Sena.   He  challenged  the  

Appellant’s  election  on  the  ground  that  the  

nomination papers which he had filed to contest the  

election had been wrongly rejected.   

5. There is no dispute that the Appellant filed  

his nomination paper as a candidate of the Bahujan  

Samaj Party and the Respondent filed his nomination  

paper for contesting the election to the aforesaid  

51-Phulpur  Parliamentary  Constituency  as  a  

candidate of Krantikari Jai Hind Sena, which is an  

unrecognized  political  party.  Accordingly,  under  

Section 33 of the Representation of the People Act,  

1951,  his  nomination  paper  was  required  to  be  

subscribed by ten (10) proposers.  His nomination  

paper was found to be defective, inasmuch as, the  

name of the second proposer, Pramod Kumar was found  

to  have  been  deleted  from  the  electoral  roll.  

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According to the Appellant herein, Pramod Kumar,  

who was not a voter from 1st January, 2009, and had  

been  declared  “Vilopit”,  had  subscribed  to  the  

nomination paper of the Respondent, though he was  

not  a  voter  from  the  aforesaid  constituency.  

According to the Appellant, the name of the said  

proposer No.2 was deleted from the electoral roll  

and, hence, the Respondent’s nomination fell short  

of the reasonable number of proposers in terms of  

the first proviso to Section 33 of the 1951 Act.   

6. After scrutinizing the nomination papers, the  

Returning Officer found that the nomination paper  

filed by the Election Petitioner, the Respondent  

herein,  was  invalid  and  defective  and  he,  

accordingly,  rejected  the  said  nomination  paper.  

After the votes were counted, on 16th May, 2009, the  

Returning  Officer  declared  the  Appellant  elected  

from the 51-Phulpur Parliamentary Constituency, as  

having secured the highest number of votes polled  

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for the said Lok Sabha seat.  It is the said order  

of  the  Returning  Officer  which  was  challenged  

before  the  Election  Tribunal  by  the  Respondent  

herein by way of an Election Petition, being No.1  

of 2009, on the ground that his nomination paper  

had been improperly rejected.   

7. On 5th October, 2009, the Appellant filed an  

application under Section 86(1) of the 1951 Act, in  

Election  Petition  No.1  of  2009,  praying  for  

dismissal of the Election Petition on the ground of  

non-compliance of the provisions of Section 81(1)  

of the 1951 Act.  One of the grounds taken by the  

Appellant  in  the  application  was  that  the  

Respondent  was  not  an  elector  of  51-Phulpur  

Parliamentary  Constituency  within  the  meaning  of  

Section 2(e) of the 1951 Act. It was urged that  

since  the  Respondent  was  not  a  duly  elected  

candidate and did not also claim to be so, he was  

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not entitled to file the Election Petition under  

Section 81(1) of the 1951 Act.

8. The  Appellant  also  filed  another  application  

under  Order  VII  Rule  11  of  the  Code  of  Civil  

Procedure in the said Election Petition before the  

Election  Tribunal  on  5th November,  2009,  for  

dismissal  of  the  Election  Petition  for  non-

disclosure  of  the  cause  of  action.  In  this  

application it was categorically indicated that the  

name of the proposer No.2, Mr. Pramod Kumar, had  

been struck off from the electoral roll and he was  

no more an elector from the said place and was not,  

therefore,  entitled  to  propose  the  name  of  the  

Respondent  for  election  to  the  51-Phulpur  

Parliamentary Constituency.

9. The applications filed by the Appellant, the  

one under Section 86(1) of the 1951 Act and the  

other under Order VII Rule 11 of the Code of Civil  

Procedure, were heard together and were dismissed  

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by the Election Tribunal on 5th May, 2011.  The  

Election Petition was, thereafter, directed to be  

listed for disposal of the amendment applications  

moved  on  behalf  of  the  Appellant  and  also  for  

settlement of issues.

10. It is the said interim order of the Election  

Tribunal, based on the two applications filed by  

the Appellant herein, against which this Special  

Leave Petition has been filed.             

11. Appearing for the Appellant herein, Mr. Ranjit  

Kumar, learned Senior Advocate, submitted that the  

Respondent had filed his nomination for contesting  

the  election  as  an  independent  candidate.  His  

nomination  paper  was,  however,  rejected  by  the  

Returning Officer on the ground that the nomination  

paper had not been subscribed by 10 proposers. The  

Respondent, thereafter, filed an Election Petition  

in the Election Tribunal challenging the election  

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of  the  Appellant  herein  on  the  ground  that  his  

nomination paper had been wrongly rejected and that  

he had been prevented from contesting the polls. In  

the said Election Petition, the Appellant herein  

filed two separate applications, one for setting  

aside  the  order  passed  by  the  Returning  Officer  

holding  that  the  Election  Petition  filed  by  the  

Respondent was not maintainable and the other for  

dismissal of the Election Petition under Order VII  

Rule 11 of the Code of Civil Procedure since the  

name of one of the proposers, Pramod Kumar, had  

been  deleted  from  the  voters’  list  and  he  was,  

therefore, not an elector on the date of nomination  

in  the  electoral  roll  relating  to  261  Allahabad  

West Assembly Constituency.   Accordingly, since he  

was not an elector of the said Constituency on the  

date of filing of the nomination papers, he was not  

eligible to subscribe the nomination paper of the  

Election Petitioner.   

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12. Both  the  objections  taken  by  the  Appellant  

herein were rejected by the Election Tribunal and  

the  Election  Petition  filed  by  the  Respondent  

herein, was held to be maintainable.  

13. It was further submitted that Pramod Kumar’s  

name having been deleted from the electoral roll,  

it would be clear from the electoral roll, which  

had  been  made  an  integral  part  of  the  Election  

Petition, that on the date of filing of nomination  

papers Pramod Kumar could not have been one of the  

10  proposers  of  the  Election  Petitioner.   Mr.  

Ranjit Kumar submitted that in the absence of the  

required  number  of  proposers  for  the  nomination  

paper of the Election Petitioner, as required under  

Section 33 of the 1951 Act, the Election Petitioner  

was  not  a  duly  nominated  candidate  and  his  

nomination  had  been  rightly  rejected  by  the  

Returning Officer.   

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14. In support of his submissions, learned counsel  

referred to and relied upon the judgment of this  

Court in Charan Lal Sahu Vs. K.R. Narayanan [(1998)  

1 SCC 56] and the decision in the case of  Charan  

Lal Sahu Vs. Giani Zail Singh[(1984) 1 SCC 390] and  

a couple of other cases which do not say anything  

different  from  the  other  decisions.   Mr.  Ranjit  

Kumar urged that since the Election Petitions were  

original  proceedings  and  not  appealable,  the  

Election Tribunal’s jurisdiction cannot be confined  

to  the  grounds  on  which  the  Returning  Officer  

rejected the nomination paper.  In fact, it is not  

precluded  from  considering  any  other  ground  or  

fresh  material  having  any  relevance  to  the  

rejection  of  the  Respondent’s  nomination  paper.  

In  this  regard,  reference  was  also  made  to  the  

decision of this Court in  J.H. Patel Vs.  Subhan  

Khan [(1996) 5 SCC 312] and in the case of Uttamrao  

Shivdas  Jankar Vs.  Ranjitsinh  Vijaysinh  Mohite  

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Patil [(2009)  13  SCC  131].   Urging  that  his  

interlocutory  applications  had  been  wrongly  

rejected, the Appellant prayed for setting aside  

the order passed by the Election Tribunal and to  

hold  that  the  Election  Petition  was  not  

maintainable.  

15. The Respondent herein, whose nomination paper  

had been rejected, appeared and with the permission  

of the Court, was allowed to advance submissions in  

support of his case that the applications filed by  

the  Appellant  (the  returned  candidate)  had  been  

rightly  rejected  by  the  Election  Tribunal.   The  

Respondent urged that it has been wrongly held by  

the  Returning  Officer  that  the  Respondent’s  

nomination paper was not in order, since the name  

of Pramod Kumar was very much there in the voters’  

list,  but  may  have  been  removed  therefrom  at  a  

later  stage.  It  was  submitted  that  the  said  

question  is  yet  to  be  decided  by  the  Election  

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Tribunal  in  the  pending  Election  Petition  and,  

accordingly, no order is called for in the present  

Appeal. As far as the decisions cited by Mr. Ranjit  

Kumar are concerned, it was submitted that the same  

did not help the Appellant’s case, inasmuch as, the  

same  related  to  the  question  that  as  Election  

Petitions  were  original  proceedings,  the  Court’s  

jurisdiction to consider the matter could not be  

confined only to the grounds on which the Returning  

Officer had rejected the nomination paper.  In the  

said decisions it was also held that the Returning  

Officer  was  not  precluded  from  considering  any  

other ground or fresh material having bearing on  

the question of rejection of the nomination paper.  

It  was  further  held  that  it  is  not  only  the  

decision  making  process  but  the  merit  of  the  

decision of the Returning Officer which has to be  

seen while trying an Election Petition.    

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16. Having  carefully  considered  the  submissions  

made on behalf of the respective parties and having  

considered the fact that the Election Petition is  

yet to be disposed of by the Election Tribunal, we  

are of the view that making any observations in  

this proceedings would certainly have an effect on  

the  pending  proceedings  before  the  Election  

Tribunal.  We are, however, inclined to agree with  

the view taken by the Election Tribunal that the  

Election Petition filed by the Respondent herein  

was  required  to  be  considered  on  evidence  on  

account of the allegations made therein.   

17. The  question  regarding  the  right  of  Pramod  

Kumar to be a subscriber to the nomination paper  

filed by the Respondent herein is the fundamental  

question which is required to be considered in this  

case. Being the central question involved in the  

pending  Election  Petition,  in  our  view,  the  

allegations contained therein have to be decided  

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before  a  decision  can  be  rendered  regarding  the  

validity  of  the  Respondent’s  Election  Petition.  

Whether  the  above-mentioned  Pramod  Kumar  was  

eligible to subscribe to the nomination paper of  

the  Respondent  is  a  question  which  can  only  be  

decided on evidence.  The Election Tribunal, in our  

view, did not commit any error in dismissing the  

applications  filed  by  the  Appellant  herein  for  

rejection  of  the  Election  Petition  filed  by  the  

Respondent herein.  In our view, no interference is  

called for with the order of the Election Tribunal  

and  the  Appeal  is,  therefore,  liable  to  be  

dismissed.  It is for the Election Tribunal to take  

up the matter and decide the same at an early date.  

18. The Appeal is, therefore, dismissed in view of  

the observations made hereinabove.  We, however,  

make  it  clear  that  the  views  expressed  in  this  

judgment are only confined to the disposal of the  

two  objections  which  have  been  filed  by  the  

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Appellant herein before the Election Tribunal and  

the same should not influence the outcome of the  

pending Election Petition filed by the Respondent  

herein.   

19. There shall, however, be no order as to costs.  

…………………………………………………………J.  (ALTAMAS KABIR)

New Delhi                  …………………………………………………………J. Dated:15.02.2012       (SURINDER SINGH NIJJAR)  

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