High Court · 2006

6. The petitioner has challenged the election of the respondent No 1 alleging that he has not made due declaration in his nomination paper as requi red under the law and stipulated in Part III and IIIA of the nomination paper fr amed under Form- 2A of the Conduct of Elections Rules, 1961 and accordingly, his nomination paper was illegally and improperly accepted by the Returning Officer which has materially affected the results of the election and, therefore, the s ame is liable to be declared void.

7. It is also pleaded that although respondent No 2 is not a member of the Scheduled Caste community recognized in the State under the Constitution ( Scheduled Caste ) Order, 1950, he being a member of the (cid:28)Matak (cid:29) community and falls within the category of Other Backward Classes and the said constituency b eing reserved for the Scheduled Caste candidate only, the acceptance of his nomi nation paper by the Returning Officer, is illegal which has materially affected the result of the election. It is further alleged that the respondent No 2 being a member of the Kathiatoli Anchalik Panchayat of Nagaon district held an office of profit within the meaning of law and, as such, acceptance of his nomination paper was liable to be rejected on this count also and the margin of difference between the election petitioner and the returned candidate being only 387 votes and the respondent No 2 having polled 1957 votes, the acceptance of nomination o f respondent No 2 has materially affected the result of the election.

8. Pleading in the aforesaid manner, the election petitioner has pr ayed for setting aside the election of the respondent No 1 from the said constit uency declaring the same to be void under section 98(b) of the Representation of Peoples Act, 1951, by awarding costs in his favour.

9. The notice of the election petition having been served upon the respondents, they entered appearance and contested the petition by filing writt en statements categorically denying the allegations made against them in the ele ction petition.

10. The respondent No 1 has denied the allegation that he has not ma de declaration in his nomination paper as stipulated in Part III and IIIA thereo f. He further pleaded that the election petition lacks material particulars as t o how and on what manner and in which column the respondent No 1 has not made su ch declaration in the nomination paper. Similarly, the respondent No 2 has also stoutly denied that he i 11. s not a member of Scheduled Caste community not being eligible to contest the el ection from No 82 Raha (SC) Legislative Assembly Constituency and asserted that he belongs to Scheduled Caste community. He also denied the allegation that he h as been holding the office of profit within the meaning of law disentitling him from contesting the election.

12. es were framed. On the basis of the pleadings of the parties, the following issu (cid:28)1). Whether the Election petition is maintainable ? Whether there is any cause of action for the election petitioner ? 2) Whether the nomination paper of Respondent No.1 was improperly and i 3) llegally accepted and if so, whether such acceptance has materially affected the result of his election rendering the same liable to be declared void ? Whether the Respondent No.2 is a necessary party in the election proceed 4) ing ? Whether the nomination paper of Respondent No.2 was i 5) mproperly accepted and if so, whether such acceptance has materially affected th e result of the election so far it relates to the election of the returning cand idate ? 6). Whether the Respondent No.2 as a member of Kathiatali Anchalik Panchayat at the time of filing of the nomination was disqualified from being chosen as a me mber of the Assam Legislative Assembly as per the mandate of Article 191 (1)(a) of the Constitution of India and if so, whether such acceptance of the nominatio n paper of the Respondent No.2 has materially affected the result of the electio n ? 7) what extent ? (cid:29). Whether the Election petitioner is entitled to any relief and if so, to

13. During the course of hearing the election petitioner examined as many as seven witnesses and exhibited eight numbers of documents. The responden t No 1 examined only himself on his behalf and exhibited one document whereas th e respondent No 2 examined three witnesses including himself and exhibited eight numbers of documents.

14. Heard Mr N Dutta, learned senior Advocate assisted by Mr SS Dey, learned counsel for the election petitioner, Mr AB Choudhury, learned senior Ad vocate assisted by Mr JP Sarma, learned counsel for the respondent No 1 and Mr B C Das, learned senior Advocate assisted by Mr A Dasgupta and Ms P Barman, learne d counsel for the respondent No 2.

15. Upon hearing the learned counsel for the parties, I on the basis of the pleadings of the parties, evidence- both oral and documentary and the re levant laws, decide the issues as follows. Issue No 1: This issue relates to maintainability of the election petition. The respondents have not made any argument against the maintainability of the el ection petition. The election petition has been filed under section 80 read with section 81 of the Representation of Peoples Act, 1951, within the statutory per iod of limitation in accordance with the provisions as contained in the Represen tation of Peoples Act, 1951 and duly following the relevant provisions of the Ga uhati High Court Rules. Accordingly, in the absence of any material or ground to hold otherwise, I decide this issue in affirmative. Issue No 2: The petitioner has challenged the election of the returned candi date from No 82 Raha (SC) Legislative Assembly Constituency held on 10.4.2006. I n the said election, the election petitioner contested the election. The electio n petitioner has alleged that the nomination paper of the respondent No 1 was im properly accepted as he did not make due declaration in Part III and IIIA of the nomination paper as framed in Form No 2A under the Conduct of Elections Rules, 1961. It is also alleged that for such violation, the nomination of the responde nt No 1 ought not to have been accepted and the same should have been rejected a s per the provisions of section 36(2)(b) of the Act. It is also alleged that the respondent No 2 is not a member of recognized Scheduled Caste Community of the State. Accordingly, the acceptance of the nomination paper of the respondent No 1 was not proper and for such improper acceptance of his nomination paper the r esults of the election has been materially affected. That apart, it also alleged that the respondent No 2 has been holding the office of profit he being a membe r of the Kathiatoli Anchalik Panchayat elected from the Debnarikoli Gaon Panchay at, and hence acceptance of his nomination paper is illegal on this count also. The respondents have contested this issue and denied the allegat ions in their written statements. Consequently, I find that the assertion of fac ts made by the petitioner, if goes unrebutted, the petitioner would get the nece ssary relief and hence I find that there is cause of action for trial of the el ection petition. Accordingly, this issue is answered in affirmative. Issue No 3: This issue is one of the major issues to be decided in this elec tion petition. The election petitioner has pleaded that the respondent No 1 has not made due declaration as required under the election law as stipulated in Par t III and IIIA of the nomination paper in Form No 2A under the Conduct of Electi ons Rules, 1961. It is correct that in the election petition it has not specific ally mentioned which portion or column of Part III and IIIA of the nomination p aper has not been filled up the respondent No 1. The petitioner also has not spe cified this in his examination in chief, as PW- 1. In his cross-examination, he stated that the respondent No 1 has not signed all the required pages of the nom ination paper and he raised objection about the validity of the nomination paper of the respondent No 1 before the Returning Officer at the time of scrutiny. Bu t this fact of raising objection before the Returning Officer has not been plead ed in the petition nor stated in his examination in chief. PW- 4 is the Returning Officer. In his examination in chief he proved th e nomination of respondent No 1 as Ext- R(1) and the list of validly nominated c andidates, as Ext- P/7, where the names of the respondents also contains. In cro ss-examination, this witness stated that after the scrutiny of the nomination pa per of the respondent No 1, the same was found to be correct and proper. Accordi ngly, the same was accepted and to that effect he made an endorsement at page- 5 of the nomination paper, the Ext- R/1. He further specifically stated that no o bjection was raised before him challenging the validity of the 9nomination paper of the respondent No 1 at the time of scrutiny. The respondent No 1, RW- 1, in his evidence in chief stated that the statement that he did not make necessary declaration in Part III and IIIA i n Form No 2A is totally baseless. He further stated that no objection was raised by any of the contesting candidates or their agents regarding the validity of h is nomination paper at the time of scrutiny. He duly filled up all columns of th e nomination paper and signed in each and every page of the same. In cross- exam ination by the election petitioner, RW- 1 stated that he was a candidate from AU DF and the said party was not recognized political party at the time of submissi on of his nomination paper and this was within his knowledge. On being shown the Ext- R/1, he admitted that he has not deleted any portion of Sl No Kha(2) (unde r objection) of Ext- R/1. He denied the suggestion that he has not made due decl aration as alleged in the election petition. He also denied the suggestion that the election petition raised objection before the Returning Officer regarding th e validity of his nomination paper. These are the materials in support of the election petitioner so far the oral evidence led by him to prove this issue. In order to prove this is sue, the election petitioner has only relied on the statements of the PW- 1, PW- 4(Returning Officer ) and RW- 1 and Ext- R/1. On scrutiny of the Ext- R/1, the nomination paper (in Assamese) filed by the respondent No 1, it is evident that at Column - Kha (2) of Part III and IIIA of the nomination paper, the respond ent No 1 has not deleted / cut the unnecessary portion as instructed in the sa id column. The English version of Column - Kha (2) of Part III and IIIA of th e nomination paper reads as follows: (cid:28)That I am being set up in this election by the . . . . . . . . . . .party which is a registered - unrecognized political party. That I am contesting this elect ion as an independent candidate (strike out which is not applicable) and the sym bol I have chosen in order of preference are - (a) (b) (cid:29). On scrutiny of the nomination paper of the respondent No 1, R/1 , I find that the candidate has put the name of the political party who has set up him in the election as AUDF and his election symbol was put on. Mr Dutta submits that the respondent No 1 not having deleted the unnecessary portion in the aforesaid portion of Part III and IIIA of the nomina tion paper as required by law, on that count alone his nomination paper was lia ble to be rejected under the provisions of section 36(2)(b) of the Act. It is su bmitted that under section 33(1) of the Act, it is the legal obligation of a can didate to present a nomination paper completed in prescribed form and the respon dent No 1 not having completed the said prescribed form by striking out the unne cessary portion, acceptance of his nomination paper was improper. Learned counse l further submits that even without raising any objection by any of the candidat es, it was the legal obligation of the Returning Officer to examine this aspect of the nomination paper regarding its validity as per section 36(2) of the Act a nd the said lapse on the part of the respondent No 1 is a defect of substantial character within the meaning of section 36(4) of the Act and hence, the same oug ht not to have been ignored by the Returning Officer. Referring to Tenth Schedul e of the Constitution leading to disqualification of a candidate for being chose n as a member of Legislative Assembly under Article 191 of the Constitution of I ndia, it is submitted that such striking out of inapplicable portion from Column - Kha (2) of Part III and IIIA of the nomination paper is a necessary factor for disqualification on the ground of defection. On such analogy, it is submitted t hat the said defect is of substantial character. Mr AB Choudhury, learned senior counsel for the respondent No 2, on the other hand, submits that a bare reading of the aforesaid Column Kha (2) would disclose that for not striking out the inapplicable portion would not mate rially alter the situation, inasmuch as, the respondent No 2 has specifically st ated that he has been set up in the election by the AUDF which is a registered - unrecognized political party and has not contested as an independent candidate . He further submits that the Assamese version of the nomination paper is slight ly deviated from the English version it is submitted that writing the name of th e party who has set up his candidature, itself excludes that he has contested th e election not as an independent candidate but on the support of an unrecognized political party mentioned in the said column. In order to categorize it as a valid nomination paper a candidat e has to submit his nomination paper as per section 33 of the Act which should b e completed in the prescribe form and signed by the candidate and by an electora te of the constituency. The nomination paper presented under section 33 of the A ct shall be completed as per the From 2A to 2E as prescribed in rule 4 of the Co nduct of Elections Rules, 1961. Admittedly, the respondent No 1 has not deleted the inapplicable portion from the said clause Kha(2) of Part III and IIIA of the nomination paper. However, in order to invalidate a nomination paper for non-co mpliance of section 33 of the Act, the defect is to be of a substantial characte r in terms of section 36(4) of the Act. Although it is submitted by Mr Dutta ref erring to proviso to Rule 4 of the Conduct of Elections Rules, 1961, that by mak ing a provision therein that failure to complete or defect in completing, the de claration as to symbols in a nomination paper in Form 2A shall not be deemed to be a defect would be of a substantial character, would certainly mean other defe cts to be of substantial character, but such a meaning is not attracted by the s aid proviso. By inserting the said proviso to rule 4 it cannot be held that the re can not be any other defect which are not substantial in nature or otherwise all defects other than that of symbol are of substantial character. There may be some other defects / defect which are also not of substantial character. The sa id proviso speaks defect relating to the election symbol only. Such an interpre tation of rules is on the face of it is not attracted. On a close scrutiny of th e said column Kha (2) of Part III and IIIA of Ext- R/1, I find that for not stri king out the inapplicable portion will not materially alter the position for whi ch the clause has been inserted. Mentioning of the name of the party which has s et up the candidate for the election would be indicative of the necessary infor mation and intention as required to be furnished by the candidate. Accordingly, I hold that the alleged defect is not of substantial character and for that co unt the nomination of the respondent No 1 was not liable to be rejected. The oth er allegation of not signing the nomination paper in each pages, etc. as alleged in the pleadings could not be proved at all and the Ext- R/1 belies such allega tion. The learned counsel has also not agitated those allegations. In view of th e aforesaid discussions, the Issue No 3 is answered in negative and against the election petitioner. Issue No 4: The respondent No 2 is a contesting but defeated candidate in th e election. The challenge to the election of a returned candidate can be made on ly by filing an election petition in the High Court as provided under Chapter II Part VI of the Act and no election can be called in question except by filing s uch an election petition in the High Court in accordance with the provisions of Part VI of the Act. Section 82 of the Act mandates that an election petitioner i s to join as respondents to his petition ¾ (a) where the petitioner, in additio n to claiming declaration that he himself or any other candidate has been duly e lected, all the contesting candidates other than the petitioner, and where no su ch further declaration is claimed, all the returned candidates and (b) any other candidate against whom allegations of any corrupt practice are made in the peti tion. The necessary requirement as to what should contain in the petit ion, relief that may be claimed and the procedure for trial of such election pet ition has also been provided in the Act. In the instant election petition there is no allegation of any c orrupt practice against anybody. Further the election petitioner has also not cl aimed for a declaration that he himself or any other candidate have been duly el ected. Consequently, in the absence of the aforesaid allegation, declaration, ex cept the returned candidate, ie, the respondent No 1, any other contesting candi date including the respondent No 2 is not statutorily required to be impleaded a s party respondent. Hence the respondent No 2 is not at all a necessary party to the election proceeding and he has been wrongly impleaded. The submission of Mr Dutta that since the respondent No 2 on receipt of the notice appeared in the p roceeding and contested the same by filing written statements, this issue has be come redundant cannot be accepted in view of the statutory requirements as provi ded under section 82 of the Act. Accordingly, this issue is answered in negative and against the election petitioner. In arriving at the aforesaid decision, I a m fortified with the law laid down by the Apex Court reported in AIR 1982 SC 383 : 1991 (2) (supp) SCC 624 and AIR 1964 SC 1545. Issue No 5: The election petitioner pleaded at paragraph- 13 of the petition , inter alia, that the respondent No 2 was illegally allowed to contest the elec tion, inasmuch as, he is not a member of the Scheduled Caste community as mentio ned in Part II of the Constitution (Scheduled Caste ) Order, 1950 (an amended ) on the face of the constituency in question being a reserved constituency for t he Scheduled Caste candidates. It is pleaded that the respondent No 2 is a membe r of (cid:28)Matak (cid:29) community and is a disciple of Sri Sri Mayamara Gorhpara Satra, Dib rugarh and Shri Padma Kanta Das, PW- 6 who is a member of the Sub-Divisional Sch eduled Caste Development Board, Nagaon, certified that the respondent No 2, is n ot a member of the Scheduled Caste community but a member of (cid:28)Matak (cid:29) community. It is also pleaded that the concerned Government Gaonburah has certified the re spondent No 2 to be a member of (cid:28)Matak (cid:29) community and a similar certificate has also been issued by Sri Durga Das, RW (cid:19) 2/3, who is the President of the Asom An usuchita Jati Parishad, Nagaon, certifying the respondent No 2 to be a member of (cid:28)Matak (cid:29) community, which is recognized as Other Backward Classes and not a memb er of the Scheduled Caste community. The contention of the election petitioner is that the respondent No 2 not being a member of the Scheduled Caste community of the State of Assam, is not entitled to contest the election from the said con stituency and his nomination was improperly accepted. It is further alleged that the margin of difference of votes between the election petitioner and the retu rned candidate, respondent No 1, is only 387 which is even less than … votes pol led by the respondent No 2, who secured only 1957 votes. Accordingly, having reg ard to the margin of difference between the vote secured by the respondent No 1 and the election petitioner and the proportion which the said margin appears to the number of votes polled by the respondent No 2, it is evident that the resul ts of the election in so far it relates to the returned candidate has been mater ially affected rendering the same liable to be declared void. The statements made in paragraph- 13 of the petition has been tr aversed by both the respondents. Denying the said allegations, the respondent No 2 pleaded, inter alia, that he is a member of the Scheduled Caste community and it is also a fact that he is a disciple of Sri Sri Mayamara Gorhpara Satra and Sri Mahadananda Goswami, Satradhikar and relies on the certificate issued by Sr i Mahadananda Goswami, and Jogodananda Goswami, Satradhikars, Exts- R/5 and R/6. The respondent further stated that the Sub-Divisional Scheduled Caste Developme nt Board, Nagaon which is a competent authority, has issued a certificate dated 3.9.93 certifying him to be a member of the Scheduled Caste community, ie, (cid:28)Koib ortra community (cid:29) which is a recognized Scheduled Caste community of Assam under the Constitution (Scheduled Caste) Order, 1950. The respondent No 2 has also re lied on the certificates issued by the Government Gaonburah of Ghilani village, letter dated 13.7.78 issued by the President of the Asom Anusuchita Jati Parisha d, Nagaon, addressing to the Chairman, Sub-Divisional Scheduled Caste Developmen t Board stating that the respondent No 2 belongs to Scheduled Caste community (Koibortra). It is further pleaded that he was also selected for the office of t he Secretary of Asom Anusuchita Jati Parishad, Nagaon, in the year 1998 and the Deputy Commissioner, Nagaon also issued a caste certificate dated 7.11.94 certif ying him to be of Koibortra Community. The certificate in Annexure- II relied on by the election petitioner alleged to have been issued by Sri Membor Bora, Gove rnment Gaonburah of Ghilani Village, is pleaded to be false and fabricated. The respondent No 1 also denying the allegations made by the ele ction petitioner at paragraph- 13 of the election petition pleaded at paragraph - 18 of the written statements, inter alia, that the contention of the petitione r that having regard to the margin of difference between the votes secured by th e returned candidate and the candidate securing the next higher number of votes and the proportion which the said margin bears to the number of votes polled by the respondent No 2, it is evident that the result of the election in so far as it concerns the returned candidate has been materially affected rendering the sa me liable to be declared void has been pleaded to be surmises and conjectures on the part of the election petitioner and the election of the returned candidate cannot be said to have been materially affected in view of the fact that admitt edly there having altogether nine candidates in the fray, there was no absolutel y no guarantee or certainty that all the 1957 votes polled by respondent No 2 wo uld have been cast in favour of the election petitioner and not to any other ca ndidates. In support of the aforesaid pleadings, the election petitioner relies on the statements of PW- 1 (election petitioner ), PW- 2, PW- 4, PW- 6 an d PW- 7 and the documentary evidence, Exts- P/1, P/2 and P/3. On the contrary, the respondent No 2, in support of his assertio n that he belongs to the Scheduled Caste community relies on the statements of R W- 2/1, RW- 2/2, RW- 2/3 and the documentary evidence vide Exts- R- 1/2, R- 3/2, R- 4/2, R- 5/2, R- 6/2 and R- 7/2. The relevant portion of the pleadings of the parties in support of their assertions and counter assertions requiring adjudication of this issue have been set out hereinbefore. Let us now peruse and scrutiny the evidence, bo th the oral and documentary, adduced by the parties in support of their respecti ve claims. PW- 1 the election petitioner, in his affidavit in chief stated, inter alia, that the polling was held on 10.4.2006 by means of electronic votin g machine and the counting was held on 11.5.2006. After the counting was over he was found to have polled in total 32,585 Nos of valid votes, the respondent No 1 was found to have polled 32,572 Nos of valid votes whereas the respondent No 2 found to have polled on 1957 Nos of valid votes. Accordingly, the respondent N o 1 was declared elected from the said constituency, he having secured 387 more valid votes than the election petitioner. He also deposed that the respondent No 1 did not make any due declaration as required to be made in Part III and IIIA of the nomination paper filed by him and accordingly his nomination paper ought to have been rejected by the Returning Officer and acceptance of his nominatio n paper has materially affected the results of the election. He further stated t hat the respondent No 2 also did not make any due declaration as required to be made in Part III and IIIA of the nomination paper filed by him, that the respond ent No 2 is a member of the Kathiatoli Anchalik Panchayat, he having been electe d from Devanarikoli Gaon Panchayat in the year 2002 and on the date of filing th e nomination paper and even as on date, he continues to be a member of the said Panchayat and receives remuneration of Rs. 500.00 per month as a member of the A nchalik Panchayat which is an office of profit and consequently, he is disqualif ied to be chosen as a member of the Legislative Assembly and his nomination pape r was improperly accepted which has materially affected the result of the electi on of the respondent No 1. It is further stated by PW- 1 that the respondent No 2 is not a member of any recognized Scheduled Caste community of the State of A ssam, that he is a member of (cid:28)Matak (cid:29) community and he himself claims to be a (cid:28)Ma tak (cid:29) which is recognized as Other Backward Class community. The respondent No 2 is a resident of Ghilani Matak gaon under Kampur Mouza in the district of Nagaon and the said village is inhabited by (cid:28)Matak (cid:29) community and his father and ances tors had been residing in the said village. PW- 1 further exhibited the certific ate issued by Sri Membor Bora, Government Gaonburah of Ghilani village (Rw- 2/2) certifying the respondent No 2 to be a member of (cid:28)Matak (cid:29) community as Ext- P/1. He also exhibited certificate issued by Sri Padma Kanta Das (PW- 6), who is a m ember of Sub-divisional Scheduled Caste Development Board, Nagaon, certifying th at the respondent No 2 is a member of (cid:28)Matak (cid:29) community, as Ext- P/2. This witne ss further proves the Ext- P/3 which is a certificate issued by Sri Durga Das ( RW- 3/2), as President of Asom Anusuchita Jati Parishad, Nagaon Branch certifyin g the respondent No 2 to be a member of (cid:28)Matak (cid:29) community which is a Other Backw ard Class and not a member of the Scheduled Caste community. He further proves a certificate issued by Sri Benu Ahmed, PW- 5, who is the President of Kamrup Anc halik Panchayat certifying the respondent No 2 to be an elected member of the Ka thiatoli Anchalik Panchayat from Devanarikoli Gaon Panchayat in the 2002 and he continues to hold the said post as Ext- P/4. PW- 1 also states in his evidence i n chief that the respondent No 2 is a member of (cid:28)Matak (cid:29) community which is recog nized as Other Backward Classes in the State of Asam and not a member of the Sch eduled Caste community and is not entitled to contest or to file nomination pape r from No 82 Raha (SC) Legislative Assembly Constituency and legal and improper acceptance of his nomination paper has materially affected the result of the ele ction. This witness was cross examined by both the respondents. In cros s-examination by the respondent No 2, PW- 1 stated that he raised objection at t he time of scrutiny of the nomination paper of the respondent No 2. Admissibilit y of this part of the statement and/or legal effect thereof was seriously contes ted by the learned counsel for the respondent No 2, inasmuch as, this fact of ra ising such objection has not been pleaded in the election petition. In cross exa mination, the witness admitted that the objection raised by him before the Retur ning Officer was oral but the Returning Officer did not entertain the same. On t he later part of his cross examination, PW- 1 stated that at the time of scrutin y he did not know that the respondent No 2 hails from Ghilani village so he coul d not raise objection before the Returning Officer. Thus two contradictory stand s are found to have taken by this witness on this point. He also stated to have collected the certificate Ext- P/1 through his agent Sri K Das and Sri D Das. He admitted that he does not know the signature of Sri Membor Bora, the author of Ext- P/1 and affirmed the signature of Sri Membor Bora. He further denied the su ggestion that Sri Padma Kanta Das, PW- 6, has no authority to issue such certifi cate. He admitted that he has not filed any application to get Ext- P/3. The PW- 1 specifically states that he does not know how many votes were exactly polled b y other candidates apart from respondent No 2. Pw-2, is Sri Nishi Kanta Das, who has deposed, inter alia, that he knows the respondent No 2 and also his father late Ghanashyam Hazarika as he was also engaged in the same trade like his father, ie, trading of paddy and jut e. He stated that the respondent No 2, his father and all the villagers of Ghila ni Matak Gaon belong to (cid:28)Matak (cid:29) community and not a single family of any other c ommunity is residing in that village. He stated that the respondent No2 iis a (cid:28)M atak (cid:29) and not a member of Scheduled Caste community. He also states that he bel ongs to Koibortra community which is recognized as Scheduled Caste community and they do not have any social relation or interaction with persons of (cid:28)Matak (cid:29) co mmunity. In cross-examination, he denied the fact that there is no village like Ghilani but admitted that Ghilani is a kissamat and the Ghilani Matak is a villa ge. He does not know whether the entire villagers are (cid:28)Matak (cid:29). He does not know Sri Amulya Hazarika and his brother and he would not be able to identify the res pondent No 2. He does not admit the suggestion that 90% of the villagers of the said village belong to Scheduled Caste community. PW- 3 is the Secretary of the Government of Assam, Department of Welfare of Plains Tribes and Backward Classes. This witness produced a Governme nt file No TAD / ST / 110 / 93 containing relevant documents regarding issuance of caste certificates. This witnesses was not cross-examined by any of the respo ndents. In fact, PW- 3 was summoned by the petitioner only to produce the said G overnment file. PW- 4 is Sri Surendra Mohan Deka, who was the Returning Officer of the Constituency in the said general election and has produced the nomination papers of the candidates. He stated that a notification dated 17.3.2006 was pub lished in the Assam Gazette notifying the election of different constituencies i ncluding No 82 Raha (SC) Legislative Assembly Constituency by the Chief Secretar y to the Government of Assam, that he was appointed as the Returning Officer for the aforesaid No 82 Raha (SC) Legislative Assembly Constituency by the Election Commission of India. He has also produced Ext- P/7, which is a list of validly nominated candidates and the final result sheet of the election in Form- 20 was proved by him as Ext- P/8. In cross-examination, the PW- 4 stated that after the scrutiny of the nomination paper of respondent No 1 he found it correct and pro per and hence he accepted the same and to that effect a note has been made at pa ge- 5 of the nomination paper. He specifically stated that no objection was rais ed by anybody in accepting the nomination paper of the respondent No 1. The nomi nation paper of the respondent No 1 is proved as Ext- R 1/1. He also stated that he did not receive any objection challenging the validity of the nomination pap er filed by the respondent No 2. He scrutinized the nomination paper filed by th e respondent No 2 in presence of all the candidates in the fray and on scrutiny, he found it to be correct in all respects and hence it was accepted and to that effect an endorsement was also made by him. PW- 5 has not stated anything relating to the Issue No 5. This w itness deposed only relating to allegation as regards the office of profit raise d by the election petitioner against the respondent No 2. PW- 6 is Sri Padma Kanta Das, who deposed, inter alia, that Ghil ani Matak Gaon falls in the Ghilani Kissamat of Kampur Mouza and the respondent No 2 and his father late Ghanashyam Hazarika belong to (cid:28)Matak (cid:29) community and the y are residents of Ghilani Matak Gaon. He further stated that there is not a sin gle Scheduled Caste community, particularly, in Ghilani Matak Gaon. He further s tates that he belongs to Koibortra community and (cid:28)Matak (cid:29) is not included in the list of Scheduled Caste. Further this witness deposed that the (cid:28)Matak (cid:29) community has a different social norms and custom than that of the Scheduled Caste commun ity people. This witness also proved Ext- P/2 which was issued by him. In cross- examination, this witness stated, inter alia, that as requested by the election petitioner he issued the certificate Ext- P/2 which was not issued in his offic ial pad. He also stated that the Sub-Divisional Scheduled Caste Development Boar d do not use any official pad so he issued the certificate in a plain paper and only the Chairman canuse the official pad. He further stated that at present the re is no Chairman in the Sub-Divisional Scheduled Caste Development Board at Nag aon and although no date is mentioned in the Ext- P/2 yet it was issued in the m onth of May, 2006. He further stated that at village Ghilani the majority of the people are (cid:28)Matak (cid:29) community and no member of Scheduled Caste community resides there. He does not know whether in the service record of Sri Amiya Hazarika, th e brother of the respondent No 2, who is serving as Kanangoh, there is an endors ement as Scheduled Caste community in his service book or not. He further states that the Sub-Divisional Scheduled Caste Development Board issued a certificate dated 3.9.93 in favour of the respondent No 2 certifying him to be a member of K oibortra community. He further stated that Ext- P/2 was issued by him on his per sonal knowledge. The last witness in support of the election petitioner is Sri S atyen Goswami, PW- 7, who is the Mouzadar of Kampur Mouza, under whom the villag e of the respondent No 2 falls. In his deposition, he has stated, inter alia, th at he knows the respondent No 2 who is a resident of Ghilani Matak Gaon and he a lso knows his brother Sri Amiya Hazarika who has been serving a Kanangoh in the office of the Circle Officer, that the respondent No 2 belongs to (cid:28)Matak (cid:29) commun ity, that now a days some of them use to write their title like (cid:28) Hazarika (cid:29), (cid:28)Ba rua (cid:29) (cid:28)Kakaty (cid:29), etc. although they belong to (cid:28)Matak (cid:29) community, (cid:28)Matak (cid:29) community is recognized as one of the Backward classes of Assam. This witness further sta ted that there is no Scheduled Caste community people in the Ghilani Matak Gaon and the respondent No 2 is not a member of Scheduled Caste community. In cross- examination this witness stated that he does not know whether Sri Amiya Hazarika is the brother of the respondent No 2 and has been serving as Kanangoo as a mem ber of Scheduled Caste community. He admits that as a Mouzadar it is not his dut y to maintain the caste records of different communities and he does not know wh ether there is Scheduled Caste community people around the respondent No 2’s re sidence or in nearby areas; this witness further stated that he does not know wh ether the respondent No 2 belongs to Scheduled Caste community or not but he is from (cid:28)Matak (cid:29) community and there is no revenue village as Ghilani Matak Gaon. ses including himself and exhibited several documents. In support of his case the respondent No 2 examined three witnes The respondent No 2 was examined himself as RW- 1/ 2. In his evi dence in chief he stated, inter alia, that as he is a member of the Scheduled Ca ste community, he filed nomination paper for contesting the election from No 82 Raha (SC) Legislative Assembly Constituency which is a reserved constituency for Scheduled Caste community candidates. He states that at the time of scrutiny of his nomination paper, the election petitioner and other candidates were presen t but no objection was raised regarding the validity of his nomination paper at that point of time and the petitioner has raised this malafide objection now w hich is an afterthought one. The respondent No 2 further states that he is a mem ber of Koibortra community which is recognized as Scheduled Caste community unde r the Constitution (Scheduled Caste ) Order, 1950. He has also proved the Ext- R /2/1 (corresponding to Annexure- D of the written statement) issued by the Sub-D ivisional Scheduled Caste Development Board, Nagaon, dated 3.9.93 vide Sl No 17 63 certifying him to be a member of Scheduled Caste community, (cid:28)Koibortra (cid:29). He h as also proved Ext- R/2/3 the certificate dated 7.4.83 issued by the Deputy Comm issioner, Nagaon, certifying him to be Koibortra which is recognized as Schedule d Caste under the Constitution (Scheduled Caste) Order, 1950 (corresponding to A nnexure- G of his written statement). The respondent No 2 has further proved the certificate dated 17.7.2006 issued by Sri Membor Bora, RW-2/2, as Ext- R/4/2 wh ich disclose that the respondent No 2 is a member of Scheduled Caste community. This witness has proved a letter dated 13.7.98 as Ext- R/7/2 issued by Sri Durga Das, RW/2/3, the President of Asom Anusichita Jati Parishad certifying that he belongs to Koibortra community and this letter was addressed to the Chairman, S ub-Divisional Scheduled Caste Development Board, Nagaon. He further filed and pr oved the certificate issud by the Satradhikar, Sri Sri Mayamara Gorhpara Satra d ated 1.6.2006 as Ext- R/5/2 and the certificate of the same date issued by Satra dhikar, Sri Sri Mayamara Dinjoy Satra. In the aforesaid two certificates, the re spondent No 2 is stated to be a member of Scheduled Caste, Koibortra community. This witness has further submitted a certificate dated 1.6.2006 issued by he Pre sident, Tinsukia Zila Anusichita Jati Parishad as Ext- R/8/2. In his examination in chief, the respondent No 2 has further stated that he was elected in the yea r 2002 as a member of Kathiatoli Anchalik Panchayat and he does not get any sala ry or remuneration but gets honorarium of Rs. 500.00, that he is an elected memb er but not nominated by the Government and he has not been holding any office of profit as alleged. He denies the allegations made by the election petitioner ag ainst him. RW- 2 was cross-examined by the election petitioner at length. D uring his cross-examination he states that his brother Sri Amiya Hazarika has be en serving as Kanangoh. He reiterates that the facts stated in Ext- R/5/2 are tr ue. He admits that the Chairman, Sub-Divisional Scheduled Caste Development Comm ittee, Nagaon, has not been cited as a witness to prove the certificate issued i n his favour nor he has cited Sub-Divisional Officer (Civil) Kaliabor and the De puty Commissioner, Nagaon, as his witness. He admits that he has not stated befo re the authority that he is a disciple of Sri Sri Mayamara Gorhpara Satra or Sri Sri Mayamara Dinjoy Satra. He further admits in his cross-examination that apar t from receiving honorarium of Rs. 500.00 per month like other member of the Pan chayat, he also receives Rs. 50.00 per day as sitting allowance. On being shown a document stated to be a copy of the pata No 48 of village Ghilani Matak under Kampur mouza, this witness acknowledge that the land described therein belongs to his father but he denied that his father is not of Scheduled Caste community and denied the suggestion that his nomination paper was defective or he is holdi ng an office of profit as alleged in the election petition. Sri Membor Bora, who is the Government Gaonburah of Ghilani Kiss amat under Kampur Mouza was examined as RW/2/2. In his examination in chief, he stated, inter alia, that the family members of the ancestors of the respondent N o 2 have been residing at Ghilani Matak Gaon and they belong to Scheduled Caste community. He issued the certificate dated 17.7.2006 (Ext- R/4/2) to the effect that the respondent No 2 is a member of Scheduled Caste Nadial community and Koi bortra community is also known as Nadial community. Ext- R/4/2(2) is his signatu re. This witness has specifically stated that he has not issued any certificate to the election petitioner which is marked as Ext- P/1(corresponding to Annexure - II of the election petition) and further states that the said certificate is f alse and fabricated. In his cross-examination by the election petitioner he reit erated and affirmed the fact of issuance of certificate, Ext- R/4/2 to the respo ndent No 2. He also affirmed his signature and seal, Ext- R/4/2(2). He further s tated that he knew the rerspondent No 2 to be a disciple of Sri Sri Mayamara Gor hpara Satra and he did not state such fact in Ext- R/4/2 because the respondent No 2 requested him to issue a caste certificate. The suggestion of suppression o f material facts in Ext- R/4/2 and that the respondent No 2 is not a member of S cheduled Caste community has been denied by him. Regarding his in chief evidence that Ext- P/1 is false and fabricated, no question was asked to him by the elec tion petitioner at all, which goes unrebutted. R/W 3 is the last witness examined by the respondent No 2. This witness is the President of Asom Anusichita Jati Parishad, Nagaon Branch, In hi s in chief evidence he has specifically stated that the respondent No 2 belongs to Scheduled Caste community. He also admits the issuance of the letter dated 13 .7.98 vide Ext- R/7 and affirmed his signature as R/1/7 and his official pad and R/2/7. In his cross-examination by the election petitioner this witness stated, inter alia, that as per the request of the respondent No 2, he issued t he Ext- R/2/7 and he knew him since before one year from the date of issuance of the said letter. In cross-examination he stated that he does not know whether t he respondent No 2 is a disciple of Sri Sri Mayamara Gorhpara Satra or Sri Sri M ayamara Dinjoy Satra and he could know this fact only after going through the re cords of this case. He stated that there are so many Scheduled Caste people at G hilani Matak Gaon and that he has relationship with some of them. He further sta ted that all the records relating to caste of the respondent No 2 are in his off ice and, as such, he issued Ext- R/2/7 without making any further enquiry. He al so stated that the respondent No 2 was Secretary of the Kampur Anusuchita Jati P arishad and the Ext- R/2/7 was issued on the basis of the records. He denied the suggestion that the Ext- R/2/7 was issued out of good relationship and that he has no personal knowledge about the caste of the respondent No 2. Let us scrutinize the necessary material facts as disclosed from the evidence adduced by the parties as highlighted above in the light of the su pporting documentary evidence, as exhibitd by the witnesses. In order to prove the allegation that the nomination paper of th e respondent No 2 was improperly accepted the focal point of attack of the petit ioner that the respondent No 2 is not a member of the Scheduled Caste community of the State of Assam. To prove this fact the election petitioner apart from hi s own evidence relied on the evidence of PW- 2, PW- 6 and PW-7. He also relies o n the corresponding exhibits P/1, P/2 and P/3 proved through his witnesses. Ext- P/1 is the certificate allegedly issued by Sri Membor Bora, the Government Gaon burah. In Ext- P/1 it is not stated that the respondent No 2 is not a member of Scheduled Caste community but it states that he belongs to (cid:28)Matak (cid:29) community. Co nspicuously, though the author of the certificate Sri Membor Bora was examined a s RW/2/2, the election petitioner did not confront to him, the Ext- P/1. On the other hand, the said RW/2/2, has specifically denied to have issued the said cer tificate and stated the same to be false and fabricated one. Even not a suggesti on to that effect was given to this witness by the election petitioner. Similarly, Ext- P/2 which is proved through PW- 6 states that th e respondent No 2 belongs to (cid:28)Matak (cid:29) community. This exhibit is also silent abou t the fact as to whether the respondent No 2 belongs to Scheduled Caste communit y or not. In his deposition PW- 6 affirmed that the respondent No 2 belongs to (cid:28) Matak (cid:29) community and is a resident of Ghilani Matak Gaon and he tried to give an impression that as in the Ghilani Matak Gaon thre is not a single Scheduled Cas e community and (cid:28)Matak (cid:29) community is recognized as Other Backward Class so the r espondent No 2 is not a member of Scheduled Caste community. This witness has no t directly stated as to whether the respondent No 2 belongs to Scheduled Caste o r not nor he has also disclosed so in Ext- P/2. This witness appears to be an ev asive one and he has not come to the Court to depose the real fact. The conspicu ous silence of the petitioner (PW-1) to confront the Ext- P/1/1 to this witness is a significant one and it goes heavily aganst the petitioner. Similarly, on scrutiny of evidence of PW-7, Sri Satyen Goswami, Mouzadar of Kampur Mouza, it is seen that his statements are based on suppositi on to the effect that the respondent No 2 is not a member of Scheduled Caste com munity. This witness states that the respondent No 2 belongs to (cid:28)Matak (cid:29) communit y. Although in his in chief he states that the respondent No 2 is not a Schedule d Caste community, in his cross-examination he states that he does not know whet her the respondent No 2 belong to Scheduled Caste community but he belongs to (cid:28)M atak (cid:29) community. He further admits that as a Mouzadar in his office there is no caste records. The election petitioner as PW-1 has deposed in chief that the re spondent No 2 is not a member of a recognized Scheduled Caste community of Assam and thus he does not have the necessary eligibility criteria to contest electio n from a constituency reserved for the Scheduled Caste community. In cross-exami nation the signature in Ext- P/1/1 could not be confirmed by him whether the sam e is of Sri Membor Bora or not. He further admits that at the time of scrutiny o f the nomination papers he did not know that the respondent No 1 hails from the Ghilani village and, therefore, he did not raise any objection before the Return ing Officer. His entire conclusion about the caste of the respondent No 2is base d on the exhibits relied by him which sufers from inherent improbability. Turning to the evidence produced by the respondent No 2 in suppo rt of his contention that he belongs to Scheduled Caste community, I find that a part from his oral statements, as RW/1/2 he also relied on several documents / c ertificates issued by different competent authorities. Ext- R/1/2 is the certifi cate issued by the Chairman, Sub-Divisional Scheduled Caste Development Board, N agaon, which is duly counter signed by the Sub-Divisional Officer (Sadar), Nagao n, the certificate is dated 3.9.93, Book N 18, Sl No 1763 wherein it is certifie d that Sri Dipon Hazarika, (respondent No 2), belongs to Scheduled Caste communi ty, which is recognized as Scheduled Caste community under the Constitution (Sch eduled Caste) Order, 1950, as amended from time to time. RW/1/2 himself proved t his certificate and no objection was raised at the time of admission of this doc ument by the election petitioner. Ext- R/1/3 is another certificate issued from the office of the Deputy Commissioner, Nagaon. This certificate bears Sl No 4560 and is dated 7.11.84, which discloses that the respondent No 2 is a permanent r esident of Nagaon district and belongs to the Kobortra community which is recogn ized as a Scheduled Caste community under the Constitution (Scheduled Caste ) Or der, 1950, as amended from time to time. This certificate has been signed by the Sub-Divisional Officer (Sadar) Nagaon. It also contains the office seal of the Deputy Commissioner, Nagaon. The respondent No 2 also relied on the certificate P/4/2 issued by the Government Gaonburah, RW/2/2. This certificate shows that th e election petitioner belongs to Scheduled Caste community and is a resident of Ghilani village under Kampur Mouza. The respondent No 2 further filed and exhibited Ext- R/2/5 and 2 /6 issued by Sri Mohodananda Goswami, Satradhikar of Sri Sri Mayamara Gorhpara S atra and Sri Jagadananda Goswami, Satradhikar, Sri Sri Mayamara Dinjan Satra, re spectively, dated 1.6.2006. These two exhibits also prove that the respondent No 2belongs to the Scheduled Caste community. Ext- R/2/5 further disclose that the people of Scheduled Caste community, ie, Kobortra people of Ghilani village are disciples of Sri Sri Mayamara Gorhpara Satra and followers of Sri Sri Mayamara Gorhpara Satra are known as (cid:28)Matak (cid:29). It further discloses that there are various sub-castes of Matak and they belong to Scheduled Caste community from time imme morial. R/2/7 proved by the respondent No 2 is a letter disclosing certain facts written by the President, Tinsukia Zila Anusichita Jati Parishad dated 1.6.2006 . Ext R/2/7 is a letter dated 13.7.98 issued by Sri Durga Das, RW/2/3 who was th e President of Asom Anusuchita Jati Parishad wherein there is a statement that t he respondent No 2 belongs to Scheduled Caste community, Kobortra. I have also gone through the records of the file No TAD/BC/238/ 2006/5, produced by the PW No 3 as called for by the election petitioner. The af oresaid file contains a list of other backward classes which also includes at se rial No 14 (cid:28)Moran (cid:29) and (cid:28)Matak (cid:29). The aforesaid file further contains an official communication of the office of the Registrar General of India on the proposal re garding inclusion of (cid:28)Moran (cid:29) and (cid:28)Matak (cid:29) in the list of Scheduled Tribe of Assam wherein it is, inter alia, stated that (cid:28)Matak (cid:29) is generic term applied to a num ber of distinct ethnic groups living in a geographical area and the followers of Maomaria sect generally belongs to Ahom, Chutiya, Dom, Kalita, Kewat, etc. comm unities and not to any specific ethnic group The word (cid:28)Dom (cid:29) is synonymous to Ko ibortra and (cid:28)Dom (cid:29) is a colloquial term. I have already discussed regarding the Exts- P/1, P/2 and P/3 up on which reliance has been placed by the election petitioner in support of his c ontention that the respondent No 2 does not belong to Scheduled Caste community. The Ext- P/1 has been proved to be false and fabricated as discussed above and has been specifically stated so by its alleged author the Government Gaoburah, R W/2/2. Ext- P/2 has been has been issued in a plain paper and not any official p ad by PW-6 and it also does not show on the face of it that the respondent No 2 is not a member of Scheduled Caste community. Ext- P/3 issued by RW/2/3 shows th at the respondent No 2 is not a member of Scheduled Caste community. But RW/3/2 is not called upon as witness by the election petitioner. When this witness was in dock as respondents witness the election petitioner did not confront him the Ext- P/3/2 on which he places reliance. It is a rather peculiar conduct of the e lection petitioner. Again Ext- R/7/2 has been admitted to be issued by the same person, ie, RW/3/2. In the said Ext- R/2/3 it is specifically stated that the re spondent No 2 belongs to Scheduled Caste community. Thus on the same issue two c ontradictory certificates were issued by same person. Natural consequence of suc h a stand is that the certificate issued by him is not at all reliable, apart fr om the fact that the election petitioner even did not make an attempt to confron t him the Ext- P/3/2, whereas he admitted Ext- R/2/3. Thus Ext- P/3/2 cannot be relied on in deciding the issue as for the aforesaid reason its veracity and pro bative value is tremendously shaken in the eye of law making it unreliable to su pport the petitioner’s case. As against the aforesaid facts the respondent No 2 has duly prov ed Ext- R/2/1, a caste certificate issued by the Chairman, Sub-Divisional Schedu led Caste Development Board, Nagaon issued under rule 3(2) of the Assam Schedule d Castes and Scheduled Tribes (Reservation of vacancies in service and posts) Ru les, 1950. Said Ext- R/2/1 issued by the Chairman, Sub-Divisional Scheduled Cast e Development board, Nagaon, was duly countersigned by the Sub-Divisinal Officer (Sadar), Nagaon and it was issued from the office of the Chairman, Sub-Divisiona l Scheduled Caste Development board, Nagaon. Therefore, the said certificate was issued in exercise of statutory power under the above rules and is an authentic ated document issued by a statutory authority. Similarly, the Ext- R/3/2 was iss ued by the Deputy commissioner, Nagaon, under Sl No 4560 in favour of the respon dent No 2 certifying him to be a member of the Scheduled Caste community. The au thenticity, veracity and probative value of the aforesaid two certificates would not at all be shaken by the election petitioner. That apart, the exhibit R/5 sp ecifically clarifies the situation about the controversy sought to be raised by the election petitioner regarding the inclusion of respondent No 2 as a (cid:28)Matak (cid:29) community. Marshalling the evidences, both oral and documentary, admitted b y respective parties, there leaves no doubt that the election petitioner has hop elessly failed to prove that the respondent No 2 does not belong to the Schedule d Caste community. As against the reliable documentary evidences produced by the respondent No 2 the oral evidence contrary to the same adduced by the petitione r witnesses are not acceptable which will have the effect of dislodging the soci al status of the respondent No 2. It was submitted by Mr Dutta that as because the respondent No 2 on his own showing vide Ext- R/5/2 and 6/2 and as per the statutory order issue d by the State Government placing the (cid:28)Moran (cid:29) and (cid:28)Matak (cid:29) as members of the Othe r Backward Classes, the respondent No 2 cannot be allowed to be considered as a member of the Scheduled Caste community. But on a close scrutiny of the aforesai d exhibits, more particularly, the Ext- P/5, it would be unsafe to hold and acce pt the aforesaid cut and dried formula as suggested by the learned counsel, to c ome to a finding that the respondent No 2 is not a member of Scheduled Caste com munity on the face of existence of overwhelming oral and documentary evidence to the contrary, including the relevant contentions, as noted above, in Government file No TAD / BC / 238 / 2006 / 5, produced by PW- 3 relating to the status of (cid:28)Matak (cid:29) community. A caste of an individual is a social recognition in the society. The history of human being shows that people gradually developed their status b y passage of time. After coming into force of the constitution, in exercise of p ower under Clause (1) of Article 341, the President of India issued Constitution al Order No 19 vide notification No SRO. 383, dated 10.8.1050 in consultation wi th the Governments of the States and as per the said Order, the (cid:28)Koibortra (cid:29) comm unity of Assam falls under Scheduled Caste. The empowered statutory authority ha s issued the certificate vide Exts- P/2 and P/3 and P/7 to the effect that the r espondent No 2 belongs to the (cid:28)Koibortra (cid:29) community and is a member of Scheduled Caste. Accepting of religion or following the principles of certain religious g roup or sectwill not change the Scheduled Caste status of any citizen. This is a lso on the principle of our Constitutional scheme that every citizen is entitled to profess any religious faith and professing of any faith will not change his caste on the face of existence of the constitutional order, till it is denotifie d or modified by the President. In this petition, the election petitioner has challenged the ele ction of the returned candidate on the grounds stated therein. The grounds for s etting aside an election has been statutorily provided in the Act. Such election petition is not like that of a declaratory suit under the Specific Relief Act. It is purely a statutory remedy relating to an election dispute to be decided st rictly within the provisions of the Act. Right to be elected is neither a fundam ental right nor a common law right but it is a statutory right, pure and simple; so out side the statute there is no right to be elected and also there is no ri ght to dispute the election. Such rights are statutory creation and, therefore, subject to statutory limitations. An election can be questioned in the manner pr escribed in the Representation of the Peoples Act and the Act is a complete and self-contained code within which one can find out right to election and/or elec tion dispute (Ref: AIR 1982 SC 983, Jyoti Basu and others Vs Debi Ghoshal and ot hers). In the aforesaid circumstances, the election petitioner cannot be permitt ed to challenge the status of the respondent No 2 as Scheduled Caste tangentiall y or co-laterally in an election petition like that in a declaratory suit. What in such circumstances is to be seen is the prima facie substance of the allegati ons, which the petitioner has miserably failed to prove. In view of the aforesaid discussions, I am constrainted to hold that the election petitioner has failed to show and establish that the responden t No 2 is not a member of the Scheduled Caste community even prima facie by appl ying the test of preponderance of probability and consequently, I hold that his Nomination paper was not improperly accepted holding him to be a member of the S cheduled Caste community. Turning to the other kind of arguments, Mr Dutta referring to th e ratio of the decision of the Apex Court reported in Vashist Narain Sharma Vs D ev Chandra and others, AIR 1954 SC 513, Chhedi Ram Vs Jhilmit Ram and others, (1 984) 2 SCC 281, submitted that in the event of holding that the nomination paper of the respondent No 2 was improperly accepted, the votes polled by respondent No 2 which is only 1957 would be included into the votes polled by the election petitioner, the margin of votes between the returned candidate, respondent No 1, and the election petitioner being 387. It is the contention of the learned seni or counsel that in such an event taking note of the margin of difference it is n ot specifically required to prove by the election petitioner that those votes po lled by the respondent No 2, which are wastage votes would have polled in favour of the election petitioner. Mr AB Choudhury, on the other hand, apart from relying on para 5 ,7,8,9,10 & 12 of Vashist Narain Sharma (supra) has also relied on the decision rendered in Shiv Charan Singh Vs Chandra Bhan Singh, AIR 1988 SC 637 : (1988) 2 SCC 12, Smt Lata Devi (Mali) Vs Haru Rajwar, AIR 1990 SC 19 and submits that ev en if in case of have a lesser margin the burden of proof that such votes would have been polled in favour of the election petitioner will still remain and the election petitioner has not discharged the said burden in this case and, as such , the vote polled by the respondent No 2 cannot be counted in favour of the ele ction petitioner. It is no doubt true that none of the witnesses examined by the e lection petitioner including himself has deposed that had the nomination paper o f the respondent No 2 been rejected, 1957 Nos of votes polled by respondent No 2 would have been casted in favour of the election petitioner. That apart, Form- 20, Ext- P/8 disclosing the official result sheet prepared as per rule 56(c)(2) shows that out of the total nine candidates in the fray, the respondent No 1, po lled 32,972 votes, election petitioner polled 32,585 votes and the respondent N o 2 polled 1957 votes. That apart, two other candidates, viz, Sri Umesh Chandra Das and Sri Dimbeswar Das also polled a sizable Nos of votes. The position of th e above noted candidates according to the number of votes polled by them as disc losed vide Ext- P/8 are indicated below: Sri Guneswar Das, 1) (respondent No 1) 2) (Election petitioner) Dr Ananda Ram Baruah, = 32,972 votes = 32,582 votes 3) Sri Umesh Das 4) Sri Dimbeswar Das 5) Sri Dipon Hazarika = 28,741 votes = 26,587 votes = 1957 votes This being the position of the votes polled it cannot absolutely be contended that in the event of declaration that the nomination paper of the respondent No 2 was accepted improperly, the votes polled by him would have gone to the election petitioner only, on the face of Sri Umesh Das and Sri Dimbeswa r Das having secured a very large number of votes nearing the election petitione r, as shown above. The election petitioner has not made any attempt even to que stion or to elicit from his witness including himself that those 1957 votes woul d have been polled in his favour and would not have gone in favour of the respon dent No 1 or Sri Umesh das or Sri Dimbeswar Das. However, in view of the finding s that the nomination paper of the respondent No 2 was not improperly accepted, the aforesaid contention is not required to be discussed in details, and has bec ome redundant and such a contingency would have arisen had the decision on the f irst part of the issue No 5 been otherwise. On over all discussions, as aforesaid this issue is accordingly decided in negative against the election petitioner and in favour of the respond ent No 2. Issue No 6: Although this issue was raised on the basis of the pleadings of the parties, Mr Dutta at the time of hearing of the arguments producing a copy o f the Assam Act No XIII of 2006 published vide notification No LGL.60/2006/26 da ted 23.8.2006 submitted that by enacting the aforesaid Act, titled as the Assam State Legislative Members (