The main legal point established in the judgment is that the rejection of nomination papers and electoral matters fall under the jurisdiction of the election petition presented to the court of the district judge of Delhi, as per the provisions of the Delhi Municipal Corporation Act, 1957.

CM NO. 13387/2017

1. By this order, I shall dispose of the CM 13387/2017 wherein the petitioner has sought the following prayers:

(a) issue a writ of certiorari and / or any other appropriate writ, thereby quashing/setting aside the impugned order dated 06.04.2017 passed by the Respondent no.2 thereby rejecting the nomination paper of petitioner for contesting election for Councilors of South Delhi Municipal Corporation, Ward No.67-S (lado Sarai); and

(b) issue a writ of mandamus and / or any other appropriate writ, order or direction in the nature of mandamus thereby directing the Respondent no.2 to accept the nomination papers of the petitioner for contesting the election for Councilors of South Delhi Municipal Corporation, Ward No. 67-S (Lado Sarai); and

(c) Pass such other further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

and your petitioner, as is duty bound, shall ever pray.”

2. The challenge in the writ petition is to the order dated April 6, 2017, whereby the respondent No. 2 has rejected the nomination papers of the petitioner on the ground that the name of her caste “ Bairwa” does not fall under Part I of The Schedule to the Constitution (Scheduled Castes) (Union Territories) Order 1951.

3. It is the case of the petitioner that a Scheduled Caste Certificate of ‘Bairwa’ caste was issued to the petitioner by Delhi Government on March 21, 2009. On April 3, 2017, the petitioner was nominated as a candidate by the Bhartiya Janta Party for the South Delhi Municipal Corporation from Ward No. 67-S, Lado Sarai, New Delhi. On April 3, 2017, the petitioner filed her nomination form along with prescribed affidavit. After checking the nomination papers, the Returning Officer approved her as the candidate of Bhartiya Janta Party from the aforesaid ward. By order dated April 6, 2017, the respondent No. 2- Returning Officer rejected the nomination paper of petitioner inter alia, on the ground which has already been stated above.

4. Mr. Chetan Sharma, learned Senior Counsel for the petitioner would submit that the order of the Returning Officer is untenable in view of the settled position of law in terms of the judgments of the Supreme Court in the case of S.Pushpa and Ors. Vs. Sivachanmugavelu And Others (2005) 3 SCC 1 and Full Bench of this Court in Deepak Kumar and Ors. Vs. District and Sessions Judge, Delhi and Ors. W.P.(C) 5390/2010 and Connected Writ Petitions, decided on September 12, 2012.

5. He states that, in view of the ratio of the judgment of the Supreme Court in S.Pushpa (supra) and the Full Bench judgment in Deepak Kumar and Ors. (supra) even if the ‘Bairwa’ caste is not a Scheduled Caste in terms of the Part I of the Schedule to the Constitution (Scheduled Caste) Union Territories Order 1951 (in short ‘Order of 1951’), still, the petitioner would be entitled to be considered as a Scheduled Caste in Delhi.

6. He states, the caste certificate issued on March 21, 2009, was after proper verification from the State of Rajasthan from where the certificate of the father of the petitioner was issued.

7. On the other hand, Mr. Pushkarna, learned counsel for the respondents would submit that the present petition is not maintainable inasmuch as in terms of Section 8 of the Delhi Municipal Corporation Act, 1957 (in short ‘Act of 1957’), in the case of a Reserved seat, for the Scheduled Caste, a person shall not be so qualified unless he is also a member of any of the said caste. He also refers to Section 2(53) (Act of 1957) to contend Schedule Caste means, “any of the Schedule Caste specified in Part I of the Schedule to the Order 1951. He would refer to a communication addressed to the Returning Officer of all wards by the State Election Commission, whereby, a copy of the Order of 1951 was sent for information and which does not depict ‘Bairwa’ as a Scheduled Caste in Delhi. According to him, a notification for election to the South Delhi Municipal Corporation was issued on Marc