Nakula Charan Das vs Kushanath Das & Others ... ... ... Opp. ... on 8 March, 2019

[Cites 16, Cited by 0]

Orissa High Court

Nakula Charan Das vs Kushanath Das & Others ... ... ... Opp. ... on 8 March, 2019

Equivalent citations: AIR 2020 ORISSA 173, AIRONLINE 2019 ORI 307

Bench: Biswanath Rath

ORISSA HIGH COURT: CUTTACK
W.P.(C) NO.9090 OF 2018
&
W.P.(C) NO.26164 OF 2017

In the matter of applications under Articles 226 & 227 of the Constitution of India.

AFR ----------
In W.P.(C) No.9090 of 2018
Nakula Charan Das ... ... ... Petitioner

-versus-

Kushanath Das & others ... ... ... Opp. Parties

For Petitioner : M/s. S.K.Mishra, J. Pradhan, S.
Rout & P.S. Mohanty

For Opp.Party No.1 : Mr. A.P. Bose, N. Hota, V.Kar,
D.J. Sahoo & S.S. Dash

For Opp.Party Nos.2 & 3 : Sri S.N.Mishra,
Additional Govt. Advocate

In W.P.(C) No.26164 of 2017
Nakula Charan Das ... ... ... Petitioner

-versus-

Collector-cum-District Magistrate, Keonjhar
& others ... ... ... Opp. Parties

For Petitioner : M/s. S.K.Mishra, J. Pradhan, S.
Rout & P.S. Mohanty

For Opp.Party Nos.1 to 4 : Sri S.N.Mishra,
Additional Govt. Advocate

For Opp.Party No.5 : Mr. A.P. Bose, N. Hota, V.Kar,
D.J.Sahoo & S.S. Dash
Date of Hearing : 19.02.2019
Date of Judgment : 08.03.2019
2

P R E S E N T:

THE HONOURABLE MR. JUSTICE BISWANATH RATH

Biswanath Rath,J. W.P.(C) No.9090 of 2018 is filed by the elected

candidate challenging the orders involving election dispute under

the Orissa Grama Panchayat Act, involving challenge to the order

passed in Election Misc. Case No.2 of 2017 vide Annexure-1 and

the Appellate Court's order in Election Appeal No.1 of 2018, vide

Annexure-2, whereas W.P.(C) No.26164 of 2017 is filed involving

the proceeding under Section 26(2) of the Orissa Grama Panchayat

Act disposed of as allowed by the Collector & District Magistrate,

Keonjhar, vide Annexure-4 therein. It is needless to mention here

that both the proceedings under the Grama Panchayat Act involved

one election and also involved one elected candidate though

involving proceeding under different provisions of law. Result of

W.P.(C) No.26164 of 2017 since is dependent on the ultimate

outcome involving W.P.(C) No.9090 of 2018, W.P.(C) No.9090 of

2018 is taken up first.

2. The short background involved in the cases is that

pursuant to Election Notification No.4534 dated 18.11.2016 issued

by the State Election Commissioner, election for the post of

Sarpanch of Mareigaon Gram Panchayat under Hatadihi Panchayat

Samiti was held on 13.02.2017 and the date of publication of result

was 23.02.2017. The post of Sarpanch of Mareigaon Grama
3

Panchayat was reserved for Scheduled Caste male candidates. Five

persons namely Ajay Jena, Debendra Kumar Jena, Bhakta Sekhar

Jena as well as the petitioner Nakula Charan Das submitted their

nominations. On filing of the nomination, on the premises of doubt

in the caste of Nakul Charan Das, petitioner in both the writ

petitions, on 11.01.2017, the election petitioner submitted written

objection before the Panchayat Level Election Officer-opp. party

no.3 involving W.P.(C ) No.9090 of 2018 and on 18.01.2017,

Kushanath Das prayed for cancellation of the nomination paper of

the petitioner involved herein at the time of scrutiny on the

premises that the petitioner in W.P.(C ) No.9090 of 2018 does not

belong to Scheduled Caste. In spite of written objection and oral

objection of Kushanath Das as well as his proposer and seconder,

opp. party no.3 did not respond and there has been illegal

acceptance of nomination paper of the petitioner. It is alleged that

opp. party no.3 should have conducted enquiry in terms of Rule 25

of Orissa Gram Panchayat Rules and should have rejected the

nomination paper of the petitioner in W.P.(C ) No.9090 of 2018. It

is further alleged that in spite of the present petitioner not being

eligible to contest the election, he was permitted to contest the

election and ultimately was also declared as the elected Sarpanch

compelling the opposite party no.1 in W.P.(C) No.9090/2018 to file

election petition with a prayer to declare acceptance of nomination

paper of opp. party no.1 by opp. party no.3 for the post of
4

Sarpanch, Mareigaon Gram Panchayat illegal and thereby also to

declare the result of election as void. In the same application, the

petitioner therein also sought for a declaration to declare the

nearest candidate as the elected Sarpanch of the Mareigaon Gram

Panchayat. Petitioner involving both the writ petitions appearing

therein filed his show-cause inter alia contending that on the date

of scrutiny of nomination paper, he was not aware about the

presence of proposer and seconder and his nomination paper was

duly accepted for being supported with the caste certificate. On

23.02.2017, the petitioner on declaration of the result of the

election was declared elected obtaining highest number of valid

votes. It is further contended that the petitioner not only belongs to

Schedules Caste but in the Record of Right though mentioned his

caste as "Pana Baishnab", but "Baishnab" is not the cast rather it is

a title and designation attached therein. To explain his designation,

the petitioner further submitted that during the period of Sri

Chaitanya Dev, a devotee of Lord Bishnu, Baishnavism was spread

and propagated by him in the State of West Bengal as well as

Orissa. During the period, persons belonging to different categories

became devotees of Lord Bishnu and his disciples were called as

Baishnabs. Thus, the petitioner claimed that Bishnab is only his

designation and has nothing to do with the caste of the petitioner

"Pana". It is on the premises that the caste of the petitioner is

"Pana" and being an item in the schedule of the presidential
5

notification, the petitioner claimed to be Scheduled Caste and thus

claimed that he has been rightly permitted to contest the election

for the post of Sarpanch. Petitioner appearing as opposite party in

the election petition strongly relied on the Caste Certificate issued

by the competent authority.

3. Considering the rival contention of the parties, trial Court

involving Election Misc. Case No.2 of 2017 framed the following

issues.

(i) Whether the O.P. No.1 belongs to Scheduled
Caste?
(ii) Whether the nomination paper of O.P. No.1 has
been improperly accepted?
(iii) Whether the acceptance of nomination paper of
O.P. No.1 by O.P. No.3 for the post of Sarpanch of
Mareigaon Gram Panchayat is illegal, unjust and
Invalid ?
(iv) Whether on dtd.23.02.2017 declaring O.P. No.1
as the Sarpach of Mareigaon Gram Panchayat by
O.P. No.2 is void?
(v) Whether the petitioner can be declared as
Sarpanch being the nearest candidate of
Mareigaon Gram Panchayat?
(vi) Whether the petitioner is entitled to any other
relief and the O.P. No.1 is liable to pay any cost?

4. To establish their respective case, the election petitioner-

the present opp. party no.1 examined P.W.1 to P.W.6 including

himself himself as P.W.4. This apart, the opp. party no.1 herein,

the election petitioner also exhibited Ext. 1 to Ext.4/27. Similarly,

the writ petitioner being opp. party no.1 in the trial Court examined

D.W.1 to D.W.9 and marked documents as Exts. A to Exts. W/1.
6

Considering the materials available on record, both oral

and documentary, pleading of the parties and the submissions of

the respective parties, the Election Tribunal disposing the Election

Misc. Case No.2 of 2017 held as follows :-

"From the aforesaid discussions with
respect to different issues, it is clear that, O.P. No.1
does not belong to scheduled caste and accordingly
he is disqualified to be elected under the provision of
this Act and his nomination paper was improperly
accepted and accordingly declaring him as Sarpanch
of Mareigaon Gram Panchayat on dtd.23.02.2017 is
void. Hence, ordered."

Thereby declaring the election of the present petitioner as

bad in law and that his nomination paper was illegally accepted.

On appeal, the Election Appeal No.1 of 2018 at the instance of the

present petitioner, the opp. party no.1 in the original proceeding,

the appellate authority dismissed the appeal in confirmation with

the findings of the original authority. At the same time, the

appellate authority consequent upon election of the opp. party no.1

in the election proceeding-the present petitioner being declared

void, further declared that a casual vacancy is created in respect of

the post of Sarpanch of the Mareigaon Gram Panchayat under

Hatadihi Grama Panchayat Samiti.

5. Challenging the orders passed by both the original

authority as well as the appellate authority, Sri Mishra, learned

counsel appearing for the elected candidate lost in both the forums,

on reiteration of his case in both the forums and taking this Court
7

to the materials on record as well as the evidence available in the

original proceeding contended that for the allegation made

questioning the election of the return candidate, it was necessary

on the part of the opp. party no.1 to establish with conclusive

material regarding the disqualification involving the return

candidate. Sri Mishra, learned counsel appearing for the petitioner,

thus, contented that there is no satisfaction of the provision of

Section 101 of the Evidence Act, 1872 by the election petitioner-the

opp. party 1 in W.P.(C ) No.9090 of 2018 herein. Further, taking

this Court to the caste certificate, vide Ext. A and the register of the

year, Ext.B regarding issuance of caste certificate in favour of the

elected candidate, Sri Mishra, leaned counsel for the petitioner

submitted that unless there is challenge to the caste certificate vide

Ext. A so also Ext.B , the contents in the Register issuing caste

certificate and there is a declaration by competent Court of law

declaring both the actions as illegal, there was no occasion for the

Courts below to disbelieve the certificate and decide the case

against the petitioner, the elected candidate. Sri Mishra, learned

counsel for the petitioner further taking this Court to the cross-

examination of the Tahasildar, Hatadihi, P.W.7 submitted that for

the clear evidence of P.W.7, there was no question of disbelieving

the certificate at Ext.A. Further, for the existence of the Caste

certificate vide Ext. A, there is also no possibility of a view declaring

that Ext.A is a fake certificate, particularly, in absence of any
8

challenge to such certificate in competent court of law. Referring to

decisions reported in AIR 1995 S.C. 94, 2011 (II) CLR 1036, and

further decision in 2018 (II) CLR (S.C) 404, Sri Mishra, learned

counsel for the petitioner submitted that for clear decision of the

Hon'ble Apex Court in the above decisions, documents at Ext.A and

B involving the caste certificate could not be questioned involving

an election dispute and the Caste Scrutiny Committee is the only

competent authority to take up such issues. For the demonstration

of the case of the petitioner that Baishnaba is only a designation

and mere mentioning of Pana Baishnab in some documents does

not reflect Caste of a person. For no support of Amin report, Sri

Mishra also submitted that documents at Ext. 5 and Ext.6, further

being questioned by the election petitioner, these two documents

had no relevance in the determination of the case involving the

election petition and thus contended that the documents have been

wrongly relied by the trial Court. Sri Mishra, learned counsel for

the petitioner on the other hand taking this Court to the document

at Ext. K contended that for the information therein that there is no

limitation period involving the validity of Caste Certificate and the

Ext. A being the true/valid original one, there was no scope for the

trial Court or the appellate Court to discard such certificate.

Further, taking to the document at Ext. C, Sri Mishra learned

counsel for the petitioner submitted that there is further material

placed in the trial court to establish that petitioner was getting
9

some benefits by virtue of his belonging to Scheduled Caste. It is

also contended by Sri Mishra that for Ext.D establishing the

petitioner's availing the post-matric stipend as a student of Baula

Junior College in the years, 1986-87 and 1987-88, there is ample

material to establish the case of the election petitioner. For non-

availability of register of a year, Sri Mishra, learned counsel for the

petitioner submitted that this could not have been facilitated

drawing the conclusion that no caste certificate was ever issued in

that year. Similarly, taking to other documents, vide Exts.A, B, H,

J, K, L, R, M, N & P. Sri Mishra, learned counsel for the petitioner

submitted that for the number of documents referred to

hereinabove establishing the claim of the petitioner belonging to

"Pana" as Scheduled Caste, Sri Mishra, learned counsel for the

petitioner contended that trial Court failed in appreciating such

material evidence. Referring to the Gazette also, Sri Mishra,

learned counsel for the petitioner submitted that there has been no

proper consideration of the information to the Gazettee by the trial

Court. While challenging the order of the trial Court on the same

premises, Sri Mishra, learned counsel for the petitioner also

attacked the order passed by the appellate Court and ultimately

contended that for the appellate Court entering into a different

consideration, not being available in the trial Court, the appellate

Court's judgment also otherwise remains bad and cannot be

construed to be the judgment in concurrence of the Trial Court. In
10

the above circumstances and taking this Court to the decisions

reported in AIR 1965 S.C 1269, AIR 1995 SC 94, 2011 (II) CLR (SC)

1036 & 2018 (II) CLR (SC)-404, Sri Mishra, learned counsel

appearing for the petitioner prayed this Court for interfering in both

the impugned orders and setting aside the same thereby allowing

the writ bearing W.P.(C) No.9090 of 2018 and for same reason, this

Court should also interfere in the impugned order involving W.P.(C )

No.26164 of 2017 and set aside the impugned order at Annexure-4

involving this writ petition.

6. In his opposition, Shri A.P. Bose, learned counsel

appearing for the contesting opp. parties in both the writ

applications on reiteration of the election petitioner's plea in the

trial Court and further in the appeal as the contesting respondent

while opposing each of the contentions raised by the learned

counsel for the petitioner taking this Court to the documents relied

on by the evidence of plaintiff therein, the documents Ext.1 to

Ext.4/27 and taking this Court, particularly to the exhibits at his

client's instance in the trial Court submitted that for the material

available on record, the observation of the trial Court is in proper

consideration of the material available on record. Referring to the

documents exhibited by the elected candidate in the trial Court,

Ext.A and the evidence thrown by the Tahasildar, Hatadihi clearly

deposing in his cross-examination that there is no such Register

available for issuance of such certificate, Sri Bose, learned counsel
11

for contesting opp. party submitted that there is no existence of any

such Caste Certificate. Sri Bose thus contended that there is right

appreciation of the issue involved by both the Courts below. Taking

this Court to the documents at Ext.B, the letter of the Tahasildar,

Hatadihi indicating that there is no availability of Misc. Case

Certificate registered for the year 1989 and further the Register of

the year 2009 clearly disclosing at serial no.69, the elected

candidate belongs to Pana Bishnab Caste and further for non-

availability of Caste "Pana Baishnab" in the schedule of the

Presidential Notification. Sri Bose, learned counsel appearing for

the contesting opp. parties contended that there is also right

appreciation of this aspect by both the courts below thereby took

the plea that there is no infirmity in the order of the original

authority or the appellate authority requiring any interference in

both the impugned orders by this Court. Sri Bose, further taking

this Court to the findings of both the Courts below submitted that

for the detailed discussions and the findings of both the forums

having based on reasonable assessment, both the impugned orders

cannot be held to be otherwise bad. Sri Bose, learned counsel for

the contesting opp. parties lastly submitted that there being a

concurrent finding of fact by both the courts below, there is no

scope for interfering in either of the impugned orders. Besides

taking this Court to the observations of the Collector in the disposal

of the 26 (2) of the Grama Panchayat Act, involving W.P.(C)
12

No.26164 of 2017, Sri Bose, learned counsel appearing for the

contesting opp. parties in both the writ petitions submitted that

there being a common view of both the Courts below and the

Collector, it appears there is reasonable consideration by at least

three authorities involving the dispute involved herein. In the

circumstances, Sri Bose, learned counsel for the contesting opp.

parties prayed this Court for dismissing both the writ petitions.

7. Considering the rival contentions of the parties, this

Court finds, Kushanath Das, O.P.1 involving W.P.(C) No.9090/2018

filed the election dispute bearing Civil Miscellaneous Case

No.2/2017, inter alia, on the ground that Nakul Charan Das,

petitioner involving both the writ petitions the elected candidate

involving the post of Sarapanch, Mareigaon Gram Panchyat on the

premises of illegal acceptance of his nomination paper by the

Election Officer in spite of the fact that the petitioner herein, i.e. the

elected Sarapanch belonging to Pana Baisnab Caste, which did not

form part of the Gazette Notification involving Scheduled Castes. It

is also alleged that in spite of written objection by Kushanath Das,

O.P.3 did not consider such aspect of the matter and allowed Nakul

Charan Das to contest the election and got elected. The election of

Nakul Charan Das was contested on the premises that said Nakul

Charan Das has filed his nomination involving a fake caste

certificate showing him falsely belonging to Pana Caste. To

establish such case, it also appears, Kushanath Das also produced
13

several documents in proof of his claim. In his opposition Nakul

Charan Das while contradicting the claim of Kushanath Das apart

from relying on certain documents to prove the following specific

plea :-

"a) The O.P.No.1 during his study was availing
stipend from the Govt. as a student of S.C. Category of
Caste "Pana".

b) Tahasildar, Hatadihi has also issued Caste
Certificates in favour of O.P.1 mentioning his caste
"Pana" in the year 1989 & 2009.

(c) Various R.S.Ds. were obtained by the O.P.1
and his father Ananda Das from different persons
belonging to S.C. Category having their caste "Pana" and
no permission U/s 22 of OLR Act were required for the
execution of the sale deeds as the O.P.1 and his father
belong to S.C.Category.

d) Various mutation R.O.Rs. were also issued by
the Tahasildar, Hatadihi basing upon R.S.Ds. obtained by
the O.P.1 and his father from persons belonging to S.C.
Category.

e) Permission U/s.22 of O.L.R. Act is required for
execution of R.S.D. by a person belongs to "Pana
Baishnab" (S.C.) in favour of General Caste Person.

f) In the S.E.B.C. list prepared by Govt. of India
after proper verification the caste of O.P.1 has been
recorded as S.C.

g) The Caste of O.P.1 being "Pana" comes under
S.C.Category as basing upon F.I.R. lodged by him against
a person of General Category a case under prevention of
Atrocity Act was registered against that person coming
under general category, in which the General Caste
person faced trial to the court of the District & Sessions
Judge (Special Judge), Keonjhar.

h) That O.P. No.1 availed compensation from the
Govt. as he was defamed in the society."
14

In the background of evidence and the material

produced by both the parties and the documents exhibited by the

respective parties, this Court finds, Kushanath Das has produced

six witnesses and filed documents, vide Ext.1 to Ext.4/27. Similarly

Nakul Charan Das, the elected candidate contesting, petitioner

herein in both the writ petitions produced nine witnesses besides

exhibiting, vide Exts.A to W/1. For the controversy involved herein,

this Court entering into the evidence of the respective parties finds,

P.W.1 in his chief while claiming that Nakul Charan Das filed his

nomination paper with fake certificate and for that he was Pana

Baisnab, caste certificate involving Nakul Charan Das remained

ungenuine, and therefore, there is illegal acceptance of nomination

of Nakul Charan Das but did not rely on any document in his

evidence. In cross-examination, this witness deposed that at the

filing of nomination paper of Nakul Charan Das, he has not verified

his documents and he cannot say as to what document he had filed

at the time of nomination. But again in paragraph-11, this very

witness submitted that Nakul Charan Das had filed caste certificate

incurred from the Tahasil. During cross-examination by O.Ps.2 & 3,

this witness again said that no caste certificate of Nakul Charan

Das was filed at the time of scrutiny. P.W.2 in his chief simply said

Nakul Charan Das was not a person belonging to Pana Caste but a

man belonging to Pana Baisnab Caste. In cross-examination by

O.P.1 this witness has simply said, he has not seen the Caste
15

Certificate of Patta of Nakul Charan Das. P.W.3 in his chief while

admitting that he was the seconder in the nomination of Kushanath

Das and deposing that Kushanath Das and others submitted

objection disputing the nomination of Nakul Charan Das and that

there is illegal acceptance of nomination in spite of objection

involving Caste of Nakul Charan Das relied on Record of Rights to

establish that he belongs to Pana Baisnab. In cross-examination

this witness submitted that in the Caste Certificate of Nakul

Charan Das was mentioned as Pana Baisnab and of Scheduled

Caste category. P.W.4, Kushanath Das himself while deposing that

he had made objection to O.P.3 on filing of nomination by Nakul

Charan Das attempted to establish his case by showing light from

the Record of Rights bearing Nos.2, 3 & 4 of Chandiabiranchipur.

He also filed orders in Mutation Case No.1375/2016 along with

Amin's report and notice then copy of another mutation order in

Mutation Case No.1364/16 along with Amin's report ad notice. He

also took support of a reply of Public Information Officer on his

application under the R.T.I. Act and further a copy of the disputed

Caste Certificate involving Misc. Case No.486/1989, copy of

affidavit of O.P.1, Nakul Charan Das and copy of High School

Certification of Nakul Charan Das. This witness also relied on a

letter of the P.I.O., Hatadihi Tahasil, which contains an up-to-date

list of S.C. & S.T. Caste and attempted to establish that Nakul

Charan Das belongs to Pana Baisnab by Caste and thereby does
16

not belong to Scheduled Caste. In cross-examination also this

witness deposed on the basis of document appearing at Ext.1 to

Ext.13. P.W.5 while deposing rested on Exts.2, 2/1, 3, 13 & 14. He

was appearing as a witness in the capacity of P.I.O.-cum-Additional

Tahasildar of Hatadihi Tahasil. O.P.6 appeared as W.E.O.-cum-

P.I.O., Hatadihi. Nakul Charan Das to establish his case in his

deposition as D.W.1 in chief relying on Record of Rights involving

him and his father submitted that their Caste has been mentioned

as Pana Baisnab and further deposed that Pana is the Caste

whereas Baisnab is a designation. Narrating the visit of Chaitanya

Dev to the State of Odisha, this witness attempted to submit that

the disciple of Chaitanya Dev is called as "Baisnab" in spite of their

Caste, which he claimed to be a designation attached to his Caste.

Relying on further document submitted by him, Nakul Charan Das

as witness submitted that for his belonging to S.C. category, there

has been issuance of Caste Certificate for over years also

particularly in 1989 and 2009 showing him to be belonging to

Scheduled Caste. This witness also relied on some purchase of land

by his father and himself in the capacity of their Caste being Pana

and for this reason, there was also no requirement for permission

from the competent authority for the execution of sale deeds. This

witness also relied on various Mutation Record of Rights issued by

the Tahasildar, Hatadihi basing upon R.S.Ds. are obtained by this

witness as well as his father from the persons belonging to S.C.
17

category. Relying on S.E.C.C. List prepared by the Government of

India, whereas his Caste has been mentioned as Scheduled Caste

and also relying on some F.I.Rs. at his instance, there have been

some cases involving Section 3(1)(x) of S.C. & S.T. ( P & A) Act were

registered. Nakul Charan Das also deposed in his evidence that for

the pendency of the Mutation Case relied on by Kushanath Das, no

inference can be drawn from such document. The other witnesses

at the instance of Nakul Charan Das since simply supported the

claim of Nakul Charan Das, it is not necessary to take note of their

statements to avoid unnecessary repetition except indicating herein

that Nakul Charan Das has exhibited through his chief Exts.A to

W/1.

8. Now coming to scan the documents filed by the

respective parties from Ext.1, this Court finds, this is a document

involving the objection of Kushanath Das requesting not to accept

the nomination of Nakul Charan Das along with procedure

regarding scrutiny of nomination. Ext.2 is the reply to R.T.I.

application only indicating that the sub-caste of Pana Baisnab is

not included in the list of S.C. Community. This Court observes

here, the observation of the P.I.O.-cum-Additional Tahasildar is of

no use for the reason that the Caste Certificate produced by Nakul

Charan Das has a clear indication of his Caste as Pana and

belonging to Scheduled Caste. Similarly, Ext.4 is a list of S.C. &

S.T., at serial no.69 of which it is indicated that Pana as Scheduled
18

Caste. Exts.5 & 6 involving Nakul Charan Das as the applicant in a

Mutation Case on the basis of which he belongs to Pana Caste and

rejecting the Mutation Case on the premises that Pana Baisnab

does not belong to Scheduled Caste category and also there is no

permission from the competent authority under the O.L.R. Act

though the enquiry report attached therein discloses the applicant's

caste as Pana Baisnab. Ext.7 is a Record of Right of one Ananta

Prasad Das belonging to Pana Baisnab. Similarly Ext.8 also does

not belong to Nakul Charan Das. Ext.9 again a document involving

Ananta Prasad Das. Ext.10 is a document indicating that the

particular Constituency was reserved for Scheduled Castes. Ext.11

is the Election Notification giving the time schedule therein for the

election involved herein. Ext.12 is a guideline regarding scrutiny of

nomination paper. Exts.13 & 14 are the replies by the P.I.O.

indicating that Nakul Charan Das has not obtained any Caste

Certificate from the Tahasildar, Hatadihi since long.

9. Coming to scan the documents produced by Nakul

Charan Das in support of his case that he belongs to Scheduled

Caste, it appears, vide Ext.A, Nakul Charan Das produced a Caste

Certificate issued involving Miscellaneous Certificate Case

No.486/1989 showing his Caste to be Pana and further indicating

that it is recognized as Scheduled Caste under the Order, 1950 and

the Amendment Order, 1978. Ext.B is a letter issued by the P.I.O.,

Hatadihi Tahasil, who has issued documents at Exts.13 & 14
19

indicating that basing on the Scheduled Caste Certificate Register

2009, Caste Certificate was issued in favour of Nakul Charan Das

even though there is no availability of Miscellaneous Certificate

documents more particularly observes that there is no dispute that

a Caste Certificate indicating Nakul Charan Das belonging to

Scheduled Caste has been issued by the competent authority. Non-

availability of the Miscellaneous Certificate Register for the Year,

1989 cannot take away the acceptance of the Caste Certificate in

favour of Nakul Charan Das since 1989 particularly when a Caste

Certificate issued by the competent authority very much exhibited

and without objection. Again coming to the Caste Certificate at

Ext.B bearing Case No.69/CAS/2009, this Court finds, said Nakul

Charan Das is again issued with the Caste Certificate showing him

to be belonging to Pana Caste with clear indicator that Pana Caste

is recognized as Scheduled Caste under the Constitution

(Scheduled Castes) Order, 1950. May be this Certificate was

granted for the purpose of filing nomination of M.L.A. candidature

but the fact that Nakul Charan Das belonging to Pana and further

recognized as a Scheduled Caste cannot be lost sight of.

Considering Ext.C this Court finds, this is a Certificate issued by

the Headmaster of Panchayat High School, Mareigaon with clear

disclosure that Nakul Charan Das was a student of Panchayat High

School, Mareigaon from Class-VII to Class-X and according to the
20

Admission Register, he belongs to Scheduled Caste. Not only that

Nakul Charan Das was also granted pre-Matric stipend by virtue of

his belonging to Scheduled Caste. Coming to Ext.D, this Court

finds, it is a document supporting the claim of Nakul Charan Das

issued from the Office of Public Information Officer, Baula Junior

College, Soso with clear indication that he belongs to Scheduled

Caste even though there is no Caste Certificate available in the

College. Similarly, coming to Ext.F, this Court again finds, it is a

document supporting the claim of Nakul Charan Das. The list of

S.E.B.C. at Serial No.1 clearly indicates that Nakul Charan Das

belongs to Scheduled Caste. There has been also other document,

which comes to show that there have been some orders and

promises of the competent authority under the OLR Act involving

some other persons indicating their Caste as Pana Baisnab on the

premises of they belong to Scheduled Caste. It also appears, there

is a criminal case before the Special Judge, Keonjhar involving a

complain of the petitioner against the accused persons under

Sections 294/341/323/506/427/34, I.P.C. read with Section

3(I)(X)S.C./S.T.(PA) Act. The proceeding was undertaken and

concluded on the premises that Nakul Charan Das was a

Scheduled Caste. From Ext.J, it appears, there have been some

financial benefits to said Nakul Charan Das in his capacity of

Scheduled Caste. Nakul Charan Das also produced some sale deeds

to establish that he belongs to Scheduled Caste, as clearly borne
21

from the sale deeds. Preparing the documents at the instance of the

rival parties getting into the controversy as to whether Nakul

Charan Das belongs to Scheduled Caste or not, this Court finds, in

one side there is a mere claim that for Nakul Charan Das belonging

to the Caste, Pana Baisnab and such a Caste not being found in the

list of S.C. & S.T. under the Presidential Notification, Nakul Charan

Das cannot be considered as a Scheduled Caste, on the other hand

there is a clear claim by Nakul Charan Das on production of several

documents including the Caste Certificate showing Nakul Charan

Das is all through treated as a Scheduled Caste. This Court,

therefore, observes that for the limited scope of consideration that

the authorities dealing with the election proceedings, there is no

scope for such authorities to get into the question as to whether the

Caste Certificate granted in favour of an elected candidate is false

or not ? It is for the competent authority to get into such aspect. It

is in the above background, this Court again observed, since the

claim of the election petitioner based on elected candidate seeking

election on production of false Certificate unless the election

petitioner succeeded in a proceeding, declaring such Certificate

either un-genuine or forged, the court undertaking the election

dispute is bound by such Certificate. In the circumstance, this

Court finds, both the courts below have exceeded in their

jurisdiction in coming to observe that the petitioner does not belong

to Scheduled Caste in spite of clear existence of series of documents
22

establishing that the petitioner involved in both the cases belonging

to Scheduled Caste. Further there is also wrong appreciation of

material evidence available on record. Further the appellate

authority not concurring findings of the trial court and on the other

hand moving on the basis of a non-existent ground, this Court

further observes that there is no proper consideration by the

appellate court involving the appeal proceeding.

10. Now coming to the other dispute involved herein that

Pana and Panabaisnab are not same thereby disqualifying Nakul

Charan Das to contest the election, this Court taking into

consideration the decision of the Hon'ble apex Court in the case of

State of Orissa vrs. Dasarathi Meher reported in 2018 (II) CLR

(SC) 1159 observes that for the decision therein there is no doubt to

observe that Pana is the Caste when Panabaisnab is a designation

but however since Ext.A clearly indicates that Nakul Charan Das

belongs to Pana, this Court finds, the controversy has no relevancy

for the time being. Again taking into account the decision of the

Hon'ble apex Court involving Bharati Ready vrs. State of

Karnataka & others reported in 2018(II) CLR (SC) 404, this Court

observes, the question of validity of Caste Certificate involved herein

unless challenged before the competent forum and an order holding

the same as invalid is obtained cannot be entertained. The

authority deciding the election case is bound by the existence of

such Certificate. This Court finds support of the decision in the
23

case of Collector, Bilaspur vrs. Ajit P.K.Jogi & others reported

in 2011 (II) CLR (SC) 1036 to the case of the petitioner. Taking note

of another decision of the Hon'ble apex Court in the case of

Bhagawati Prasad Dixit 'Ghorewala' vrs. Rajeev Gandhi

reported in AIR 1986 SC 1534 wherein in paragraph-11 the Hon'ble

apex Court observed, the question of a candidate, whether is an

Indian citizen even after acquiring foreign citizenship held that the

High Court is not competent to decide such question in an election

petition. Such declaration is only lie with the competent authority

and unless such declaration is set aside by the competent

authority, the Election Court remains undone. This Court finds,

this decision has clear support to the case of the petitioner. Taking

into account the decision in the case of Kumari Madhuri Patil &

another vrs. Addl. Commissioner, Tribal Development & others

reported in AIR 1995 SC 94, this Court observes, for the clear

direction of the Hon'ble Supreme Court, the validity of the

Certificate involved herein should be left to the Sub-Committee so

constituted. This decision has also been followed in another

decision of the Hon'ble apex Court in the case of Bharati Reddy

vrs. State of Karnataka & others reported in 2018 (II) CLR 404.

This Court here also observes that the decisions involving

democratically elected candidates cannot be interfered with so

lightly unless there is strong case dislodging such candidates.
24

11. In the above background of the matter, this Court

finds, both the election court as well as the appellate court have

exceeded their jurisdiction in entering into the conflict, to which

they have no jurisdiction and the impugned orders involved herein

since have been passed entering into the question of validity of the

Caste Certificate in an election proceeding cannot be sustained.

Therefore, both the impugned orders, vide Annexures-1 & 2

involving W.P.(C) No.9090 of 2018 must fail. For the decision of the

Collector involving the other writ petition bearing W.P.(C) No.26164

of 2017 on the same premises and based on similar conclusions as

that of the election court, for the reasons assigned herein above the

impugned order involving W.P.(C) No.26164/2017 also to fail. In the

process, this Court while allowing both the writ petitions sets aside

the orders at Annexures-1 & 2 of W.P.(C) No.9090 of 2018 and

Annexure-4 of W.P.(C) No.26164 of 2017. For allowing both the writ

petitions, this Court directs that in the event the petitioner has

been unseated in the meantime, he may be permitted to assume

charge of the post of Sarapanch forthwith.

12. In the result, both the writ petitions succeed. No cost.

..............................
Biswanath Rath, J.

Orissa High Court, Cuttack. The 8th day of March, 2019/mkr, secy. 25

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