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CASE NO.: Appeal (civil)  659 of 2003

PETITIONER: Punit Rai                                                

RESPONDENT: Vs. Dinesh Chaudhary                                         

DATE OF JUDGMENT: 19/08/2003

BENCH: CJI, V.N.Khare & Brijesh Kumar.

JUDGMENT: JUDGMENT

BRIJESH KUMAR, J.

       The instant appeal arises out of a judgment and order passed by  the Patna High Court,  dismissing the Election Petition No.2 of 2000  preferred by the appellant,  challenging the election of the respondent  herein - Dinesh Chaudhary, the returned candidate to the Legislative  Assembly.         The dispute relates to the election held in 204 Fatua Reserved  Assembly Constituency (S.C.) in the State of Bihar, in the year 2000.   The appellant,  amongst others in the fray,  was a candidate for the  election as a nominee of Janata Dal (U). He belongs to Scheduled  Caste. The respondent, Dinesh Chaudhary was a nominee of Janata  Dal (R) claiming to be belonging to Pasi community which is one of  the Scheduled Caste communities.  It appears that some objections  were raised regarding the nomination of the respondent Dinesh  Chaudhary on the ground that he does not belong to Scheduled Caste  community;  rather he is Kurmi by caste which falls in the category of  Other  Backward Classes.  The caste certificate furnished by the  respondent before the Returning Officer was also under cloud,  in  respect whereof, the Returning Officer entertained grave suspicion as  a result of which she lodged an FIR on the basis of which a Criminal  Case has also been registered against the respondent. He was also  arrested in connection with that case. However, the Returning Officer  accepted the nomination paper of the respondent for contesting the  aforesaid election. The election was held on 17.2.2000 and the result  was ultimately declared on 26.2.2000 declaring respondent Dinesh  Chaudhary as elected, having polled 46850 votes whereas the  petitioner appellant had secured 39897 votes which was next to the  highest polled in favour of the respondent.         As indicated above, the petitioner filed an election petition  challenging the election of the respondent, amongst other, on the  ground that he was not entitled to contest from a reserved  constituency as a Scheduled Caste candidate since he is Kurmi by  caste.  In this light,  the case of the petitioner was that the nomination  paper of the respondent was wrongly accepted by the Returning  Officer.  More particularly, since the Returning Officer herself had  initiated criminal proceedings by filing an FIR relating to the  certificate furnished by the respondent, being a fabricated document.   The definite case of the appellant is that the respondent is a resident of  Surangpur of Jehanabad Assembly Constituency and he is the son of  Bhagwan Singh who married to Jago Devi and both are Kurmi by  Caste. Evidence has been led to indicate that Dinesh Chaudhary and  his brother are also married in  Kurmi families. The voters list of  Jehanabad Assembly Constituency was also summoned indicating the  respondent as son of Bhagwan Singh and Jago Devi is shown to be  Bhagwan Singh’s  wife. Dinesh Chaudhary and his brother have been

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shown to be two sons of Bhagwan Singh.         The case of the respondent as pleaded in the written statement  is that his father Bhagwan Singh, a Kurmi by caste, had married one  Deo Kumari Devi at village Adai, who is Pasi by caste.  The  respondent and his brother are borne to the said Smt.Deo Kumari  Devi.  The two brothers remained in village Adai with their mother at  the house of their maternal uncle until they attained majority,  whereafter  they,  along with their mother, shifted to Patna.  Bhagwan  Singh had been visiting their mother occasionally at village Adai.   According to the respondent, in view of certain circulars issued by the  State Government, in  case of an  inter-caste marriage where the wife  is a Scheduled Caste, the children borne out of the wedlock would be  treated as Scheduled Caste. The voters list of village Adai also seems  to have been filed indicating the respondent as son of Bhagwan Singh  and Deo Kumari Devi.  So far the question of submission of caste  certificate before the Returning Officer is concerned, the respondent’s  case is that the same was brought to him by someone who happened  to be a man of the petitioner appellant.  As such he has been  implicated in the case of furnishing a false certificate.  The original  certificate issued by the Collector, Gaya has not been challenged.          Out of the four issues framed, the relevant issues with which we  are concerned in the present appeal are, issues No.3 and 4 as quoted  below : "(iii)  Whether the nomination paper of the sole  Respondent has been improperly and illegally accepted  as per the allegations made in the election petition?

(iv) What relief, if any, the petitioner is entitled to?"

       The main controversy under issue no.3 is undoubtedly on the  question as to whether the respondent Dinesh Chaudhary is Kurmi by  caste or is a Pasi having allegedly borne of Deo Kumari Devi  belonging to S.C. community. Both parties understood the issue no.3  in the same manner and have led oral and documentary evidence on  the point.  The oral evidence led on behalf of the petitioner is to the  effect that Bhagwan Singh, the father of Dinesh Chaudhary is Kurmi  by caste and his wife Jago Devi is also  a Kurmi.  Some residents of  village Adai have also been examined by the petitioner to state that  there was no person by the name of Dinesh Chaudhary in that village  and they denied the fact that the respondent was borne of Deo Kumari  Devi in village Adai.  The respondent also examined several witnesses  to support his case. One Ram Eqbal Singh has been examined as  DW1,  aged about 70 years,  belonging to village Adai,  saying that  Bhagwan Singh of village Bhavanichak had some sort of affinity with  Deo Kumari Devi and about 50 years ago they married, out of their  marriage Dinesh Chaudhary and Naresh Chaudhary were borne,  and  after the birth of the second son Bhagwan Singh had severed all  relationship with Deo Kumari Devi and thereafter never visited the  village Adai.  Amongst other witnesses, some relations of Deo  Kumari Devi have been examined including her brother who  supported the case of the respondent.         The High Court, while dealing with the evidence, observes that  the evidence which has been led by the petitioner is more of a  circumstantial nature. For example, the fact that undisputedly father of  Dinesh Chaudhary is Kurmi by caste married to Jago Devi who is also  Kurmi.  Dinesh Chaudhary and his brother are also married in Kurmi  families.  It is also noted in the judgment that the whole story of  marriage of Bhagwan Singh with Deo Kumari Devi, a Pasi lady,  had  not been disclosed at the time of the scrutiny of the nomination paper  to explain as to on what basis Dinesh Chaudhary claimed to be a Pasi.  The caste certificate was issued even though his father is a Kurmi  married to a Kurmi lady namely, Jago Devi.  At this stage it would be  appropriate to quote some of the findings recorded by the High Court.   After observing that the petitioner appellant could not produce any  direct evidence about the caste of the respondent Dinesh Chaudhary, it

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is found:  "As the election petitioner is not from the family of the  respondent or his relation, so it cannot be possible to  have any special knowledge regarding the caste, but he  could not produce any person from the family of  Bhagwan Singh or Bhagwan Singh himself who can  prove that Dinesh Chaudhary, the Respodnent, is a  Kurmi by caste through a Kurmi mother i.e. Jago Devi".                                           (emphasis supplied)

To us the above observations seems to be unsustainable.  There would  obviously be no occasion for the election petitioner to examine  Bhagwan Singh in support of his case while challenging the election  of none else but the son of Bhagwan Singh himself.  A person borne  in a Kurmi family, which details have been provided,  would normally  be taken to be Kurmi by caste.  But it is only in special circumstances,  as may have been provided under a circular of the Government of  Bihar, that  the caste of the mother would be taken as the caste of the  children,  if she happens to be a Scheduled Caste,  married to a non- Scheduled Caste.  There is no denial of the fact that Bhagwan Singh is  a Kurmi as well as Jago Devi,  wife of Bhagwan Singh. The story as  put forward by the respondent about his caste is something which  would be in the special knowledge of the respondent and Bhagwan  Singh and Deo Kumari Devi.  There was no occasion for the appellant  to examine Bhagwan Singh or any member of his family once it was  given out by the appellant that Bhagwan Singh and his wife Jago Devi  both are Kurmi by caste.  The facts of which special knowledge is  with the respondent,  he alone had to prove those facts by adducing  the best evidence on the point of his being a Pasi by caste.  It may,  however, be pertinent  again to quote one of the observations of the  High Court, which is as follows :  "The position of burden of proof as  would be on  principle of law that any fact which has been asserted by  a person should be proved by him and if the same has  been proved prima facie then only the burden is shifted to  the adverse party to rebut the same.  But such sort of  shifting of burden and placing of variations remain only  an academic one when both parties adduce evidence in  support of their contention on the vexed issue."    

In the light of the above observations it is only to be decided on the  basis of the evidence adduced by both the parties as to who has been  able to prove one’s case.  It is true that the respondent has examined  some witnesses belonging to village Adai including his maternal uncle  to support his case but neither Bhagwan Singh nor Deo Kumari Devi,   both of whom are alive have been examined to prove the fact, in  respect of which they alone would be the best witnesses to depose. In  this connection,  the High Court has also observed thus :  "Very peculiarly both the mother and father of Dinesh  Chaudhary are alive but none of them have been cited as  witness by either of the parties.  In the list of witnesses  Deo Kumari Devi and Bhagwan Singh were cited as  witnesses for the Respondent but for the reasons best  known to them they have not been produced as  witnesses".   

It is clear that the respondent well understood the relevance and  weight of the evidence of Bhagwan Singh and Deo Kumari Devi who  were cited as witnesses in  list of his witnesses but they have  obviously been withheld and not produced before the Court.   Respondent has not indicated any reason for their non-production.  At  the same time the court is led by the case of the respondent as asserted

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in the written statement that his father did not care of his sons after  their birth and had left them.  The court observes that this may be a  cogent reason for not adducing the evidence of Bhagwan Singh from  the side of respondent.  Surprisingly, the court looses sight of the fact  that despite such an averment made in the written statement Bhagwan  Singh has been cited as witness of the respondent. Further so far  mother is concerned, she is with the respondent and there is no reason   of any kind of bad relations between the respondent and his mother  Deo Kumari Devi,  to not to produce  her.  The reason imagined  by  the Court for non-production of Bhagwan Singh  will not apply to Deo  Kumari Devi.  It is observed by the High Court itself as follows:  "But no explanation has been given from the side of the  Respondent as to why their mother Deo Kumari Devi  could not be examined in the case as it has been  vehemently argued from the side of the election  petitioner that withholding Deo Kumari Devi from being  a witness brings an adverse inference against the  Respondent as contemplated under Section 114 of the  Evidence Act."   

It may further be worthwhile to refer to some of the other observations  made by the High Court, e.g.  that Bhagwan Singh and his wife Jago  Devi both are Kurmis but it would not mean that respondent was  borne of Jago Devi, which fact it is observed, is not anywhere  mentioned specifically in the election petition.  It is a queer   observation and the approach adopted by the High Court. There was  no occasion to state further in the election petition that the respondent  was borne of Jago Devi out of her wedlock with Bhagwan Singh who  are  husband and wife and Kurmis by caste unless it is proved by the  other side by any evidence that the petitioner had knowledge of the  alleged marriage of Bhagwan Singh with a Pasi lady namely, Deo  Kumari Devi in another village namely, Adai,  where Bhagwan Singh  never resided nor Deo Kumari Devi was ever brought to reside with  Bhagwan Singh in his village.   However, on the basis of untenable  observation, as indicated above,  the High Court found :

"So the prima facie fact regarding the case of the  respondent could not be proved from the side of the  election petitioner.  But definitely a doubt could be  created regarding the caste of the respondent as already  stated above."   

Strangely enough we again find yet another fragile and strange  observation as follows :

"The election petitioner himself in his evidence had not  denied categorically that the respondent had not been  born to the womb of Deo Kumari Devi.  Only vague  statement has been made that both father and mother of  Dinesh Chaudhary were Kurmi by the caste."  

       The conclusion drawn by the High Court that respondent was a  competent person to contest from reserved constituency is  accompanied with the following observation :   "Definitely, if a person is born of a Kurmi father or in a  Kurmi family then the presumption goes that the child is  Kurmi by caste. But here the respondent could make out a  special case that, although, he has been born of a Kurmi  father but mother being a Pasi, he is a Scheduled Caste  and as such, a competent person to contest from the  Reserved Constituency."   

It is again in that context observed :  "It is true that the controversy can be well thrashed out if

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Bhagwan Singh and Deo Kumari Devi have been  examined by either of the parties."   

We have already observed that there was no occasion for the  petitioner appellant to examine either of them.  But there is no such  cogent  reason for the respondent not to examine them.  It is again  observed :  "Then question comes of Deo Kumari Devi.  She had not  been produced by the respondent and she is in custody of  the respondent himself as per his statement during the  course of evidence.  No reasons have been stated as to  why she has not been produced.  This may cast some  adverse inference against the respondent.  But such  adverse inference alone is not sufficient enough to hold  that the respondent is not a Pasi by caste."   

It is then observed that the petitioner is not proved his case to the hilt  though a suspicion or doubt has been cast. We may consider a few cases on the point of drawing adverse  inference in the event of withholding of a witness.  In AIR 1968 SC   1413 at 1416, Gopal Krishanji Ketkar Vs. Mahomed Haji Latif  and Ors., it has been held that a party who is in possession of  best  evidence which would throw light on the issue in controversy  withholds such evidence an adverse inference under Section 114(g) of  the Evidence Act ought to be drawn against such a party  notwithstanding that the onus of proof may not lie on him.  It is  observed that a party cannot rely on abstract doctrine of onus of proof  or on the fact that he was not called upon  to produce  such evidence.  In the instant case however, the onus of proof that the respondent  was Pasi by Caste due to alleged marriage of Bhagwan Singh with Deo  Kumari Devi in some other place was wholly within the special  knowledge of the respondent.

In AIR 1974 SC 1957, Virendra Kumar Saklecha Vs.  Jagjiwan and Ors.,   the  allegation of threatening voters with divine  displeasure in speech delivered in some meetings  was not accepted and  an  adverse inference was drawn due to non-production of material  witness and the notes made by him at the meeting.  In yet another case  in reported AIR 1964 SC 40, Lachman Utamchand Kirpalani Vs.  Meena alias Mota,       a matrimonial dispute in which the question as  to whether or not the wife had left the husband’s place with the consent  of husband’s parents , non-production of parents of the husband led to  adverse inference drawn against the husband.  

       In the case in hand the respondent was supposed to prove the  facts within his special knowledge by adducing best evidence namely,  Bhagwan Singh and Deo Kumari Devi, which he failed to do.  In these  circumstances, the High Court erred in observing that the appellant  should have examined Bhagwan Singh.  The case of the parties is clear from their pleadings and the  evidence adduced by them as indicated above.  The petitioner  challenged the status of respondent Dinesh Chaudhary as a Scheduled  Caste person belonging  to the S.C. community.  Precisely what was  indicated in support of that case is that father of Dinesh Chaudhary and  Naresh Chaduhary is Bhagwan Singh who is Kurmi by caste married to  Jago Devi, also a Kurmi lady.  The High Court has also observed that a  person borne in a Kurmi family  normally  would be presumed that he  is Kurmi by caste.  In this background the initial burden of the  petitioner would stand discharged and it would shift upon the  respondent to prove his case which, in normal course of things, would  be and is within his special knowledge.  A case which has been set up  by the respondent through his witnesses as well that his father had taken  a fancy for Deo Kumari Devi, a resident of village Adai, who is Pasi by  caste and married her who  gave birth to two children including the

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respondent,  would normally be not in the knowledge of people in  general particularly when according to the case of the respondent  himself Jago Devi lived in another village and she was never brought  from there by Bhagwan Singh.    More so, when Bhagwan Singh, a  Kurmi by caste, is living with his wife Jago Devi, also a Kurmi, in their  village Jahanabad.  The best evidence,  as also according to the High  Court to prove the case of the respondent was, to produce  Bhagwan  Singh and Deo Kumari Devi  but they have been withheld after being  cited as witnesses for the respondent.  These facts clearly make out a  case for drawing an adverse inference that in case they had been  produced they would not have supported the case of the respondent.   AIR 1961 SC 1316  Kundan Lal Rallaram Vs. Custodian, Evacuee  Property, Bombay,  AIR 1917 PC 6 T.S. Murugesam Pillai Vs. M.D.  Gnana Sambandha Pandara Sannadhi and Ors.  and 1977 (3) SCC  page 540 Thiru John and Anr. Vs. The Returning Officer and Ors.  may also be referred on the point.   On behalf of the respondent,  the citation of certain decisions has  also  been furnished but those decisions would be of no help to the  respondent.  Reliance has been placed upon  1999 (9) SCC page 386   Jeet Mohinder Singh Vs. Harminder Singh Jassi,    where it has been  held that a party  upon whom the  burden lies to prove a fact,  but  fails  to discharge his onus, it is not open for him to bank upon the plea of  non-examination of  witness by the other party.  The appellant, it was  held,   cannot be permitted to derive strength from the weakness of the  case of the other party.  We feel that this case would not be applicable  in the facts and circumstances of the case in hand.  On the other hand,   the onus  to prove facts within the special knowledge    of respondent  no. 1,   would  lie upon him alone to prove those facts.  We have  already held that best evidence of  the respondent’s case that his mother  was a Pasi has been withheld.  In this connection,  we may peruse  Section 106 of the Evidence Act also which reads as under:- "when any  fact is especially within the knowledge of any person,  the burden of  proving to that effect is upon him.".  Apart from the above,  the   appellant had also discharged his burden by proving the fact that the  father of respondent No. 1 is Bhagwan  Singh,    a Kurmi by caste   married to  Jago Devi  also a Kurmi by caste.  The natural inference in  such  circumstances would be that the respondent would,  in normal  course of events,  be a Kurmi by caste.  If there is anything contrary  to  the normal course of events,   as pleaded in this case  of another  marriage of Bhagwan Singh in some other village namely Adai with  Deo Kumari Devi who never came to live with Bhagwan Singh in his  village nor Bhagwan Singh ever lived there.    Such facts in the special  knowledge of the respondent have  to be proved by him alone.    The  respondent was under duty to prove his case both ways namely, in view  of the  special knowledge of facts pleaded  and again in view of  the  fact that the appellant had  discharged    his  initial burden of showing  that the respondent was Kurmi by caste being son of Bhagwan Singh,  Kurmi married to Jago Devi also Kurmi     The other decision which  has been referred to on behalf of the respondent is reported in AIR 1959  SC 914 Dolgobinda Paricha Vs. Nimai Charan Misra and Ors.     It  is in connection with the fact that the evidence  of the brother of Dev  Kumari Devi that Bhagwan Singh had married her,  was relevant for the  purposes of relationship of one person to another   since brother of Deo  Kumari Devi,  is a person who is  a member of the family   or otherwise  has special means of knowledge of the particular  relationship.  The  decision is in reference to Section 50 of the Evidence Act.  It may be  observed that the evidence of persons who belong  to village Adai  including the brother of Deo Kumari Devi have been examined by the  respondent to  establish the allegation of marriage   between Bhagwan  Singh and Deo Kumari Devi.  Undoubtedly,  the evidence of brother of   Deo Kumari Devi would be relevant for the relationship between  Bhagwan Singh and Deo Kumari Devi but his evidence would not be of  any help,   in view of the adverse inference drawn under Section 114 (g)  of the Evidence Act due to  withholding of the best evidence available  on the point. When the persons concerned are not coming forward to    

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the court to depose about the alleged relationship and an  adverse  inference has been  drawn that   if they had come to the Court to  depose,  their evidence would have gone against the respondent, in such  circumstances,  there is no occasion  to act upon the statement of DW  (5),   the brother of Deo Kumari Devi or other witnesses.  Reliance has also been placed on two decisions reported in AIR  1969 SC 1201 Samant N. Balakrishna  etc. Vs. George Fernadez  and Ors.    and 2002 (1) SCC page 160 Santosh Yadav Vs. Narender  Singh  on the proposition that full particulars and all the material facts  must be pleaded in the Election Petition.    It is not understandable   as  to how these cases would help the  respondent.  The petitioner has  pleaded that respondent  is son of Bhagwan Singh who is Kurmi by  caste and wife of Bhagwan Singh is Jago Devi also a lady Kurmi by  caste. It is also stated  that the respondent  and his  brother    are   married with Kurmi ladies.  These are the material facts relating to the  plea raised  by the appellant that the respondent is not a Scheduled  Caste.  We don’t think if the respondent  means to say that the  petitioner should have stated in the petition that the respondent  is not  born   of Deo Kumari Devi  said to be married to Bhagwan Singh in  Village Adai.  If at all these facts would be in the special knowledge of  respondent,  Bhagwan Singh and Deo Kumari Devi  hence not  required   to be pleaded in the Election Petition.  It is not possible as well.  In this  connection,  a reference may be made to a decision of this Court  reported in AIR 1960 SC 770 Balwan Singh Vs. Lakshmi Narain and  Ors.  This case also relates to Election matter and it was held that facts  which are in the special knowledge of the other party could not be  pleaded by the Election Petitioner.    It was found    that particulars of  the arrangement of hiring or procuring a vehicle would never be in the   knowledge of the  petitioner,  such facts  need not  and cannot be  pleaded in the petition.  The learned counsel for the respondent then submits that in fact  the issue framed by the High Court was not to the effect as to whether  the respondent is a Kurmi  or Pasi by caste. Rather it is to the effect  whether  the nomination paper of Dinesh Chaudhary had been  improperly and illegally accepted as per allegations made in the  election petition or not.  In this connection it may be observed,  in the  background of the allegations made in the election petition,  the core  issue  was as to whether Dinesh Chaudhary belongs to a Scheduled  Caste community or not.   Both parties led evidence on the question.  Hence both sides understood the case in the same way and no party  was misled due to framing of the issue no.3 as it has been framed.                 We may,  however,  consider the argument of the learned  counsel for the respondent from the  angle as sought to be canvassed   as well,  namely,  the nomination paper of respondent was improperly  and illegally accepted by the Returning Officer or not on the basis of  the evidence on the record. In that connection we may refer to the  statement of  PW 3 Smt. Safina,  Returning Officer,   who was posted  as Sub-Divisional Magistrate, Patna city.  She has stated that as  Returning Officer she had scrutinized the nomination paper of the  respondent filed for Fatua Assembly Constituency.  She had received  some complaints about his nomination paper.  She has stated that  prima facie on looking into the case a doubt was created in her mind  regarding its veracity. She had received such information beforehand  through the District Magistrate.   She  had  also got the matter  inquired through the District Welfare Officer, Gaya.  The District  Magistrate had  also  considered  the  report  of  the     District  Welfare Officer to be correct.  In the above circumstances she had  lodged a Report against  the  respondent  Dinesh  Chaudhary   with  the   police.   She  had   however,   postponed   the  matter  of    scrutiny of nomination paper from 1.2.2000 to 2.2.2000.  The next day  she accepted the nomination paper of the respondent Dinesh  Chaudhary.  She has admitted that before she had lodged the FIR she  was in receipt of the report of the District Welfare Officer, Gaya.  She  also states that lodging of the FIR definitely goes against the  candidature of Dinesh Chaudhary.  In cross-examination she states

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that,  according to the relevant provisions,  she did not find it  necessary that a caste certificate must be filed along with the  nomination paper.  She also states that on the date of scrutiny  objectors could not produce any document or proof to the effect that  Dinesh Chaudhary did not belong to Scheduled Caste.  Amongst  several objections filed against the nomination of Dinesh Chaudhary it  is given out there that Dinesh Chaudhary belongs to Kurmi  community and his father and mother both are Kurmis.  The fact  which is quite clear is that the Returning Officer had grave doubt  about the veracity of the caste certificate to the extent that she lodged  an FIR against the candidate namely Dinesh Chaudhary.  In support of  the suspicion entertained about the caste certificate being fabricated,   she had a report from the District Welfare Officer, Gaya.  A criminal  case was registered and the respondent was also arrested.  It is only  surprising that despite such a grave suspicion and initiation of  criminal proceedings against the candidate the Returning Officer still  accepted his nomination paper.  She has stated that on 1.2.2000 after  she had lodged the report there was lot of opposition in respect of the  nomination paper of the respondent.  She has admitted that the  respondent was a nominee of the ruling party in the State.  She  postponed the matter for the next day when she  accepted the  nomination paper of the respondent.  Going by normal conduct no  prudent person would accept such a nomination paper in respect of  which there is an information that caste certificate entitling  to be a  candidate from a reserved constituency,   is suspected to be forged and  fabricated supported by a report subsequently by none else but a  responsible officer, namely, the District Welfare Officer, Gaya.  After  taking a decision to criminally prosecute a person on the charge of  filing fabricated caste  certificate it goes against the normal human  conduct of a prudent person who still accept  such a nomination paper.   The nomination if rejected, the respondent could further agitate the  matter by filing an election petition.  This question would not depend   upon the fact  as to ultimately case of which of the party would be  found to be correct or false.  The question is after having entertaining  such a grave doubt so as to decide to criminally prosecute a person   still to accept the nomination paper runs contrary to normal  conduct  of  a prudent  and responsible officer.   On the above basis it can well  be said without any hesitation that nomination paper of return  candidate (Respondent)  was improperly accepted by the Returning  Officer.  It ought to have been rejected by the returning officer in the  background of the above facts and circumstances.

       Thus, examining the matter from any angle,  we do not find the  judgment of the High Court sustainable.

       In the result, the appeal is allowed with costs and the judgment  and order passed by the High Court is set aside, as well as the election  of the Respondent to 204 Fatua Assembly Constituency  of State of  Bihar. The Election Commission of India is called upon to hold  election for filling up the vacancy caused by the setting aside of the  election of the Respondent.         As per requirement of Section 103 of the Representation of  People Act, the substance of the decision shall be intimated to the  Election Commission and the Speaker of the Legislative Assembly of  the State of Bihar.  An authenticated copy shall also be sent to the  Election Commission at the earliest.