election case no 09 of 2012 a_2
TRANSCRIPT
-
8/10/2019 Election Case No 09 of 2012 A_2
1/33
HEADING OF DECISION IN THE ORIGINAL SUIT:
IN THE COURT OF CIVIL JUDGE, JUNIOR DIVISION : KENDRAPARA
P R E S E N T : Shri Bisweswar Biswoprakash Ray, LL.B,Civil Judge, Junior Division,K e n d r a p a r a.Election Case No. 09 of 2012
Dated the 1st day of November 2013.
Samar Keshari Mohapatra,aged 32 years
Son of Adiukanda Mohapatra
Village/Po- Ramnagar,Ps-Mohakalapada
District-Kendrapara.
.....................Election petitioner.
Versus.
Milan Kumar Debnath,aged 50 years
Son of late Gobinda Chandra Debnath,
Village/Po-Ramnagar, Ps-Mohakalapada
District-Kendrapara
.....................Opposite party.
Counsel for the election petitioner : Sri.Sanjaya Kumar Patri, Advocate
Counsel for the opposite party : Sri Bibhu Prasad Singh, Advocate.
Date of conclusion of argument : 30.10.2013
Date of delivery of judgment : 01.11.2013
---------------------------------------------
-
8/10/2019 Election Case No 09 of 2012 A_2
2/33
J U D G M E N T
Challenging the election of returned candidate to the office of
Sarpanch of Ramanagar Gram Panchayat reserved for OBC candidate, the
petitioner has assailed his election by way of this petition filed under
section 30 of Odisha Grama Panchayat Act, wherein the petitioner has
prayed this Court to set aside the election of returned candidate on the
ground that returned candidate belongs to schedule caste and he is
ineligible to file nomination for the post of Sarpanch reserved for OBC
category and in addition to such relief, the petitioner be declared to be
elected to the said office and cost along with other consequential reliefs.
2. Brief facts, that are necessary for disposal of the present petition may
be delineated as follows:
Pursuant to the notification of State Election Commissioner Odisha,
the petitioner and opposite party and another namely Jayadev Debnath
have filed their respective nomination papers for the post of Sarpanch of
Ramanagar Grama Panchayat which is reserved for OBC category candidate.
The Petitioner belongs to OBC being khandayatby caste, but the returned
candidate being a member of schedule caste category was not eligible to
contest the election reserved for OBC candidate, rather he is Namasudra by
sub-caste which is found enlisted under the schedule cast list of order
prepared and published under the list of Scheduled Castes and Scheduled
Tribes of Odisha as per the SC & ST orders (Amendment) Act 1976.
-
8/10/2019 Election Case No 09 of 2012 A_2
3/33
3. Though the petitioner has raised the objection at the time of scrutiny
with regard to disqualification of returned candidate before the scrutiny
officer/election officer but he did not pay any heed and illegally allowed the
opposite party to contest the election. In the said election fray, the returned
candidate has secured 2627 votes and accordingly, he was declared
elected on 22.02.2012 by the concerned election officer as per election
schedule. The 3rd contestant Jayadev Devnath had secured 246 number
of votes. The petitioner has also clarified that the father of the opposite party
Gobinda Mohan Debnath son of Harischandra Debnath being a schedule
caste person had taken lease of land from the learned Tahasildar,
Marshaghai under village Kharinasi under K form in the year 1976. Said
Govinda Mohan Debnath has been described as Namasudraby caste in the
said K form lease.
4. The opposite party has born on 01.07.1962 and started his prosecution
from Ramachandi L.P. School, Ramanagar and thereafter, basing upon
transfer certificate from the said school, he took admission in the Govt
High School,Chandikhol and became a boarder of the hostel of that School,
which was meant only for schedule caste and schedule tribe students.
Further more, the opposite party has purchased a peace of land in the name
of his minor son and the returned candidate has represented him as father
guardian in the sale deed dated 30.6.1998 and the said registered sale deed
has been acted upon and mutation ROR has been prepared in favour of his
-
8/10/2019 Election Case No 09 of 2012 A_2
4/33
son describing him as Namasudra by caste. That apart, the returned
candidate has obtained caste certificate in the year 2002 from the learned
Tahasildar, Mohakalapada vide Misc case No 77 of 2002, wherein, he claimed
himself as Namasudra by caste. In view of above, the returned candidate is
a schedule caste person and does not belong to OBC category and as such,
he is not entitled to contest the election for the post of Sarapanch in
question.
5. The returned candidate practising fraud upon the Additional Tahasildar,
Mohakalapada suppressing the material facts, has obtained a caste
certificate as back ward class person, describing him as jogi by caste. The
learned Additional Tahasildar has not properly enquired into the matter
before issuance of the alleged certificate in favour of the returned candidate
as such his certificate is invalid and void in the eye of law. The cause of
action for filing of the suit has been shown on 11.01.2012, when the
returned candidate has produced OBC certificate along-with his nomination
paper and lastly, on 22.02.2012, when he was declared elected to the office
of Sarpanch of Ramnagar Gram Panchayat. At the time of presentation of
election dispute, the petitioner has also deposited a sum of Rs 150/- as
security deposit, by way of challan, for the purpose of filing of this case and
the petitioner has also relied upon the documents as has been arrayed in the
foot of the plaint.
-
8/10/2019 Election Case No 09 of 2012 A_2
5/33
6. In response to the notice of this court, the returned candidate made
his appearance through his counsel and contested the case. The Written
Statement averments of the returned candidate are set out hereunder:-
The suit is highly vexatious and it is an abuse of process of law and
contending inter alia denying all the averments of the plaint and also further
pleaded that he is Jogi by sub-caste, which comes under the category of OBC
and he has obtained caste certificate on dated 04.01.2012 prior to filing of
his nomination paper for the post of Sarapanch of Ramnagar, Gram-
Panchayat vide Misc case No 20/2012 from the learned Tahasildar
Mohakalapara and the learned Tahasildrar Mohakalapada has directed the
concerned R.I. to conduct inquiry on that score and as per his direction, R.I.
conducted inquiry and submitted a report and basing upon his report, the
learned Tahasildar Mohakalapara has issued certificate in favour of the
returned candidate as OBC as per the Rules of Government of India Ministry
of Welfare Department.
7. The returned candidate had filed nomination paper and affidavit stating
therein that he belongs to Jogi by caste and the petitioner was aware about
such fact that the returned candidate being jogi by caste and he is not
disqualified under the law to participate in the last election. That apart, the
petitioner is not the permanent resident of village Ramanagar, rather he is
a permanent inhabitant of village Karanja. The learned counsel for the
returned candidate has explained that now, it has come to the notice of the
returned candidate that the learned Tahasildar Mohakalapada while issuing
-
8/10/2019 Election Case No 09 of 2012 A_2
6/33
-
8/10/2019 Election Case No 09 of 2012 A_2
7/33
OBC as per the Notification issued by the District election
Officer, Kendrapara in Form No 15 as prescribed under Odisha
Grama Panchayat Act?
III. To what relief(s), if any, the petitioner is entitled as per law
and equities?
Evidences brought forth by the parties:
9. To substantiate the case of the petitioner, he has examined 5
witnesses including himself as Pw 1 and exhibited 15 documents in support
of his case. Refuting the claim of the petitioner, the returned candidate has
also examined 5 witnesses including himself as Opw 1 and got exhibited 21
documents. I have heard arguments from the learned counsel for the election
petitioner and opposite parties and perused the materials on record in a
meticulous manner.
DISCUSSION, DECISION AND REASONS THEREOF
Issue No I
10. Here in the instant case, it is undisputed case of the parties that
they have filed their respective nomination papers for the post of Sarapanch
of Ramnagar, Gram- Panchayat in the election held for the year 2012. At the
time of scrutiny of nomination papers, the election petitioner has resisted to
the disqualification of the returned candidate that he is SC by caste and he is
not illegible to contest in the election for the post of Sarapanch which is
-
8/10/2019 Election Case No 09 of 2012 A_2
8/33
reserved for OBC, specifically as per the notification of District Election officer
under form No 15 of Odisha Gram-Panchayat Act. However, the nomination
papers were accepted and in the election, the returned candidate has polled
with highest votes and elected to the office of Sarapanch vide office
notification dated 22.02.2012. After publication of such result, the election
petitioner finding no other alternative, preferred to challenge the election
process stating the disqualification of the returned candidate and filed this
suit on 05.03.2012 and deposited the security amount of Rs 150/ as per the
Rule f Odisha Gram-Panchayat Election Rules.
11. In this context, this court has occasioned to refer the relevant
provision of section 31 of Odisha Gram-Panchayat Act reads as follows:
Presentation of petitions- The petition shall be presented on
one or more of the grounds specified in section 39 before the civil judge
(Junior Division) having jurisdiction over the place at which the office of the
Gram Sasan is situated together with a deposit of such amount, if any, as
may be prescribed in that behalf as security for costs within fifteen days
after the date on which the name of the person elected is publishedunder
section 15.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
it has been specified under Rule 88 of Odisha Gram-Panchayat
Election Rules 1965, the election petition relating to election of a Sarapanch,
the security of cost of Rs 150/- is to be deposited along-with an election field
under chapter V of the Act.
-
8/10/2019 Election Case No 09 of 2012 A_2
9/33
12. In the present case in hand, the election result of the returned
candidate was published officially vide dated 22.02.2012 and the election
petitioner has moved this court on 05.03.2012 by preferring this petition
which is found to have been filed within the statutory period prescribed
above and the security amount has been paid and filed along-with the plaint.
That apart, the office of Sarapanch of Ramnagar Gram-Panchayat situates
within the jurisdiction of this court. That apart, the returned candidate has
not raised any matter which shows that the suit is not maintainable on any of
the grounds discussed in the foregoing paragraph. The provision of Order
VIII, Rule 2, CPC, states that the opposite party must raise by his pleading
all matters which show the suit not to be maintainable. It was incumbent
upon the opposite party in view of the above provision of Order VIII, Rule 2,
CPC, to raise all matters in her written statement in support of her plea that
the suit is not maintainable. As she has not done so, the instant suit cannot
be said to be not maintainable. In view of present facts, the suit is
maintainable in its present form. Hence, the issue is decided in affirmative in
favour of the election petitioner.
Decision on Issue No II with reasons:
13. The issue being most vital is taken up for consideration for effective
adjudication of this case. Having perused the above materials on record, at
the very outset, when this court analyse the claim of the election petitioner,
find that the election petitioner has filed along with this petition, a host of
documents in support of his claim. They are shown as Annexures to his suit.
-
8/10/2019 Election Case No 09 of 2012 A_2
10/33
The election petitioner has set out his case questioning to the acceptance of
nomination paper of the returned candidate for the post of Sarapanch of
Ramnagar Gram Panchayat that the returned candidate belongs to schedule
caste, but suppressing the material facts, he has fraudulently obtained OBC
certificate soon before the election of the year 2012, but despite of his
objection on the date of scrutiny of nomination paper, but without any rhyme
and reason the election officer has improperly accepted his nomination paper
and allowed to participate in the election proceeding as a result of which, he
became successful securing highest voters in the election fray and also
declared to be elected as Sarpanch of Ramanagar Grama Panchayat vide
Official publication dated 22.02.2012.
14. The election petitioner has produced documents with regard to caste
of returned candidate. It has been specifically asserted by the petitioner that
in the year 2002, the returned candidate had filed one Miscellaneous case
before the learned Tahasildar Mohakapada vide Misc Case No 77 of 2002, in
which, he has applied for his caste certificate for the purpose of bank loan
and he has also sworn affidavit in that respect that he belongs to schedule
caste being Namasudra by caste and after due inquiry on the basis of R.I.
report, the learned Tahasildar has issued schedule caste certificate in his
favour. The petitioner has also got exhibited the Ext-2 which is the certified
copy of such application along-with affidavit sworn by the returned
candidate and R.I. report and his schedule caste certificate. Though he has
specifically pleaded such fact and existence about such certificate in para5
-
8/10/2019 Election Case No 09 of 2012 A_2
11/33
of his election petition but the returned candidate has not specifically denied
on this score, in his written statement made nor he traversed to that effect.
In absence of specific denial of the averments, the assertion made in the
said paragraph with regard to the relevant portion to this question must be
taken to have admitted.
15. Contradicting to such pleading and argument, the learned counsel for
the petitioner has specifically argued that in an election case, the burden of
proof lies on the petitioner to prove strictly each fact specifically asserted
without depending on the averments and evidence of the returned
candidate. That apart, the petitioner has specifically asserted in para 4 of
the petition that he is khandayat by caste, which comes under OBC category
but the notification published by the State Government, does not include
Khandayat caste in the said list. Thus it is clear that the petitioner belong to
SCBC category, therefore, he has no locus satndi to contest in the election.
Further more, The legal aspect even if admitted by the parties, the court is
required to arrive at a conclusion that the seat of Sarpanch of Ramanangar
Gram Panchayat is reserved for OBC or not. Here in the instant case the
election petitioner has not filed the Notification to say that the seat is
reserved one which is a latches on the part of the petitioner.
16. On careful consideration of Ext-2 along with Ext B which is certificate
of OBC issued in favour of the returned candidate by the learned Tahasildar
after due inquiry which has been seriously disputed in this case.
-
8/10/2019 Election Case No 09 of 2012 A_2
12/33
17. The first question is to be decided in this election dispute is whether
this court has the jurisdiction to record any finding with regard to the caste
of the returned candidate as per the pleading and claim of the election
petitioner. Article 243 of the Constitution of India provides that
notwithstanding anything contained in the Constitution, no election to any
Panchayat shall be called in question except by an election petition presented
to such authority and in such manner as is provided for by or under any law
made by the Legislature of a State. Chapter V of the Orissa Grama
Panchayats Act, 1964 is titled as "CONDUCT OF ELECTION AND ELECTION
DISPUTES" and contains Sections 27 to 43, Section 30 states that no election
of a person as a member of a Grama Panchayat or as a Sarpanch or Naib
Sarpanch held under the Orissa Grama Panchayats Act shall be called in
question except by an election petition presented in accordance with the
provisions of Chapter V, Section 31 states that the petition shall be presented
on one or more grounds specified in Section 39 before the Civil Judge (Junior
Division) having jurisdiction over the place at which the office of the Grama
Sasan is situated.
18. Section 39 provides the grounds on which the Civil Judge (Junior
Division) can declare the election of a returned candidate void and one of the
grounds for declaring the election of a returned candidate void is if the Civil
Judge is of the opinion that any nomination paper has been improperly
rejected or accepted. It is not disputed that the post of Sarpanch of
Ramnagar Grama Panchayat was reserved for Other Backward Class persons
-
8/10/2019 Election Case No 09 of 2012 A_2
13/33
under the provisions of Section 10 of the Orissa Grama Panchayats Act,
1964. Thus, when a petition has been filed before this court under Section 31
alleging that the returned candidate was not a OBC and yet his nomination
was accepted for election to the post of Sarpanch of Ramanagar Grama
Panchayat reserved for a OBC, then this court has the jurisdiction to decide
the aforesaid issue raised in such a petition and if this court is of the opinion
that the returned candidate was not a OBC, then this court has the
jurisdiction to also record a finding that the nomination paper of such
returned candidate had been improperly accepted and declare the election of
such returned candidate as void.
19. In the instant case, the specific case of the election petitioner under
Section 31 of the Orissa Grama Panchayats Act, 1964 before this court is that
the returned candidate is Namasudra by Sub-caste which has been enlisted
vide Sl No 64 under the list for Schedule castes and Schedule tribe in Orissa,
Thus, he is not OBC and yet his nomination was filed for election to the post
of Sarpanch of Ramanagar Grama Panchayat reserved for OBC and although
the election petitioner had objected to the nomination of the returned
candidate that he did not belong to the OBC community, the Election Officer
illegally and improperly accepted his nomination for the election and
permitted him to contest the election for the post of Sarpanch of Ramnagar
Grama Panchayat.,
-
8/10/2019 Election Case No 09 of 2012 A_2
14/33
20. The next question to be decided is whether the certificate (Ext. 2)
issued by the Learned Tahasildar, Mohakalapada under Section 8 of the
Orissa Caste Certificate (SC & ST) Rules, 1980 prescribed under the form in
appendix I of the said Rules is to be deemed as conclusive evidence of the
fact that the returned candidate is Schedule Caste. Orissa Caste
Certificate (SC& ST) Rules 1980 contains provisions from Sections 1 to 9.
Section 4 stipulates that before issuance of certificates, it is necessary that
proper verification based on primarily on revenue records and if need be
through reliable enquiries on the following points as enumerated under
Section 4 provides for verification of caste before issuance of caste
certificates and is quoted hereunder:
a)
That the person and his parents actually belongs to the
community claimed.
b) That the community is included in the presidential order
specifying the Schedule castes and Schedule tribes in relation to
the state of Orissa.
c) That the person belongs to the state of Orissa and to the area in
respect of which the community has been scheduled.
d) If a person claims to be a schedule caste, he should profess
either the Hindu or Sikh religion.
-
8/10/2019 Election Case No 09 of 2012 A_2
15/33
e) If a person claims to be a schedule tribe, he may profess any
religion.
21. It is not in dispute that a person who does not belong to OBC, can
not offer himself as a candidate for election to a reserved constituency. Thus,
if a candidate who contests the election, representing himself by belonging to
OBC, is shown in a proceeding contesting his election, as not belonging to
OBC of the state, his election is liable to be declared void. Therefore, only
question remains that whether the election petitioner has proved that the
returned candidate does not belong to Jogi- caste, OBC or SEBC of the state
of Orissa and he belongs to Namasudra by caste which is recognized as SC
under the state of Orissa.
22. It is no doubt true that the burden of proof to show that a candidate who
was disqualified as on the date of the nomination would be on the election
petitioner. It is also true that the initial burden of proof that nomination
paper of an elected candidate has wrongly been accepted is on the election
petitioner. In terms of Section 103 of the Indian Evidence Act, however, the
burden of proof as to any particular fact lies on that person who wishes the
Court to believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person. Furthermore, in relation
to certain matters, the fact being within the special knowledge of the
returned candidate, the burden to prove the same would be on him in terms
of Section 106 of the Indian Evidence Act. However, the question as to
-
8/10/2019 Election Case No 09 of 2012 A_2
16/33
whether the burden to prove a particular matter is on the election petitioner
or the returned candidate would depend upon the nature of the dispute.
23. The returned candidate resisted the election petition. In his written
statement, he asserted that he belonged to Jogi caste (a OBC) and is eligible
and qualified to contest as a candidate for the reserved for OBC for the post
of Sarapanch of Ramnagar, Gram-Panchayat. The election petitioner had let
in oral evidence by examining some residents of the returned candidate's
village Ramnagar Duryodhan Behera (PW2), to show that the returned
candidate belonged to 'Namasudra' caste. He also let in documentary
evidence in the nature of certified copy of application filed by the returned
candidate for issuance of his caste certificates for the purpose of bank loan
vide (Ext-2) , school admission register extracts (Ext 11) and certified copy
of registered sale deed vide Ext 4 and Ext 13) to show that the caste of
returned candidate was 'Namasudra' and that after 2012, returned candidate
has attempted to represent that his caste as Jogi. Duryodhan Behera (PW-2)
stated that he knew Returned candidate's father and the returned candidate
belonged to Namasudra caste. He has prosecuted his studies in a school
situated at Chandikhol and was staying there in the hostel which was only
meant for schedule caste and schedule tribe students.
24. What emerges from the aforesaid oral evidence is that while the witness
examined by the election petitioner who belongs to Ramnagar village to
which returned candidate belonged, stated that he knew him and his family
-
8/10/2019 Election Case No 09 of 2012 A_2
17/33
well and that he belonged to Namasudra caste. The cross- examination of the
said witness has not brought out anything significant to disbelieve his
evidence.
25. Ext- 11 (school admission register of the government high school, SSD,
Chandikhol) was produced by PW-3 (Bhagaban Sahoo) employed in the
Government school, in response, summons issued to the said school to
produce the said register. He also gave evidence regarding entries nos.
1117/28 relating to Milan Kant Debnath and gave the particulars entered in
regard to Milan kant Debnath under the said entry. He has deposed in his
evidence that Milankant Debnath was admitted on 18.07.1972 in class- IV of
the said school and he belongs to SC Caste and the relevant entry of his
admission has been marked as Ext 11/ a. But In his cross-examination, he
stated that he has been posted in the said school for the last two years and
that he had not made the said entry.
26. Section 35 of the Evidence Act provides that an entry in any public or
other official book or register or record, stating a fact in issue or relevant fact
and made by a public servant in the discharge of his official duty or by any
other person in performance of a duty specifically enjoined by law of the
country in which such book or register is kept, is itself a relevant fact. Having
regard to the provisions of Section 35, entries in school admission registers
in regard to age, caste etc., have always been considered as relevant and
admissible. In this context, this court has occasioned to refer the decision of
-
8/10/2019 Election Case No 09 of 2012 A_2
18/33
-
8/10/2019 Election Case No 09 of 2012 A_2
19/33
-
8/10/2019 Election Case No 09 of 2012 A_2
20/33
(a) backward clases for the purpose of this Act, means such backward
classes of citizens other than the Scheduled Castes and Scheduled Tribes as
may be specified by the State Government in the lists;
Lists means lists prepared by the Government of Orissa from time to
time for purposes of making provision for the reservation of appointments or
posts in favour of backward clases of citizens which, in the opinion of that
Government, are not adequately represented in the services under the
Government of Orissa and any local or other authority within the territory of
Orissa or under the control of the Government of Orissa;
30. The Honble Justice N.K.Das Commission was set up on 3rdFebruary
1991 to identify Socially and Educationally Backward Classes of citizens in
the State of Orissa for the purpose of extending benefits for reference to
the Mandal Commissions Report and to lay down the economic criteria
which will constitute the basis for allowing the benefits. The commission has
submitted its report and basing upon such report the State Government has
prepared a list vide Annexture B.
STATE LIST OF SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES OF
ORISSA Sl No. Name of the Castes/Communities Resolution/NotificationNo.
and Date of TW/HW/Welfare / M&BCW Deptt. No. 25455 dt.10.09.1993 (TW)
1. Agharia, Agaria, Aghria
2. Aranedan -do-
3. Asur -do-
-
8/10/2019 Election Case No 09 of 2012 A_2
21/33
-
8/10/2019 Election Case No 09 of 2012 A_2
22/33
Schedule Caste and Schedule Tribe Rules 1980, and under the said Act,
Schedule caste has been defined with reference to the Schedule caste
specified in the Constitution (SC orders 1950 made for Article 351 of
Constitution of India and as amended from time to time). The act has also
specifically empowered the following authorities to issue caste certificate
under these rules with their respective jurisdiction and they are District
Magistrate /Collector, Additional District Magistrate, Sub-Addl. District
Magistrate, Executive Magistrate, Revenue Officers not below the rank of
Tahasildar/ Addl. Tahasildar, all OAS, BDO. The election petitioner has
specifically asserted in her pleading that returned candidate belonged to
schedule caste being Namasudra by caste then let me find whether the
Namasudra sub caste has been enlisted under the list of SC or ST of
Odissa as per the SC and ST orders Amendment Act 1976.
32. The List of Scheduled Castes notified (after addition/deletion)as per
the Constitution (Scheduled Castes) Order, 1950, as amended vide
Modification Order 1956, Amendment Act, 1976 and the Constitution
(Scheduled Castes) Order (Amendment) Act 2002 No. 25 dated 27.5.2002.
of Ministry of Law, Justice and Company Affairs, read with The Constitution
(SCs) Order (Second Amendment) Act, 2002 No. 61 of 2002 dated
18.12.2002 of Ministry of Law & Justice republished vide Notification No.
7797-I- Legis-5/2002-L dated 7.6.2003 of Law Deptt, Govt. of Orissa and,
vide Gazette of India No.381dt.30.8.2007,as it reveals that Namasudra sub-
-
8/10/2019 Election Case No 09 of 2012 A_2
23/33
caste has been enlisted vide Sl. No 65 under the SC and ST of such list. But
the title Jogi has not enlisted in the said list.
33. The election Tribunal while determining an issue of this nature has to
bear in mind that A person cannot be permitted to occupy an office for which
he is disqualified under the Constitution or provision of any statute. The
endeavour of the court shall therefor should be to see that a disqualified
person should not hold the office but should not at the same time, unseat a
person qualified therefor. The court is required to proceed cautiously in the
matter and, thus, while seeing that an election of the representative of the
people is not set aside on flimsy grounds but would also have a duty to see
that the constitutional mandate is fulfilled. The election petitioner has also
got exhibited the certified copy of application filed by Millan Kumar Debnath
for obtaining his caste certificate for the purpose of Bank loan marked as
Ext-2, wherein, the returned candidate has sworn an affidavit declaring that
he belongs to schedule caste and his sub-caste Namasudra. Further more,
on inquiry, it is ascertained by the R.I. that Milan Kumar Debnath belongs
to Schedule caste and his sub-caste is Namasudra as derived from the ROR
vide Khata No 348. The petitioner has also produced the copy of such ROR
obtained under RTI Act which reveals said Khata has been recorded in
favour of the father of returned candidate and after careful consideration
of the inquiry report by the R.I and the documents filed by the returned
candidate, the learned Tahasildar, Mohakalapada has issued caste certificate
in favour of the returned candidate being schedule caste as recognized under
-
8/10/2019 Election Case No 09 of 2012 A_2
24/33
schedule caste under the constitution(Schedule caste order 1952) vide order
dated 23.05.02. Ext-4 is the Registered Sale Deed which has been executed
by Narayan Chandra Dinda in favour of Amit Kumar Debnath who is the
minor son of returned candidate wherein the returned candidate has also
described him as Namasudra. The said sale deed has been acted upon and
basing upon such sale deed, separate mutation ROR has been prepared and
published vide Khata No 394/221 in favour of Amrit Kumar Debnath son of
Milan Debnath describing him as cast Namasudra. Taking into account the
aforesaid facts and circumstances, the returned candidate specifically
advanced that record of rights has been prepared by the settlement
authority and it is made only for fiscal purpose and the recording of caste
of the returned candidate or any other person in the said khata does not
raise a correct presumption that he belongs to such community. On the
contrary, the learned counsel for the petitioner has specifically advanced
that recording of caste in the ROR is based on the provision under Settlement
Act and Settlement Rules.
34. It is well settled proposition of law that the entries made in the ROR
shall be presumed to be correct unless the contrary is proved. However the
entry made in the ROR to the effect that the returned candidate is
Namasudra by caste is a piece of evidence and to be considered along with
other evidence, it can not be all together ignored as it has a direct point of
issue of this case. It is admitted by both the parties that there are certain
documents like ROR which discloses the caste of the returned candidate is
-
8/10/2019 Election Case No 09 of 2012 A_2
25/33
Namasudra and rest of others have been described as Jogi. It is worthy to
note here that the returned candidate during his schooling has taken
advantage being a schedule caste and was a boarder of a Government
High School and hostel which is specifically meant for schedule caste and
schedule tribes students and the same benefit has been received by the
returned candidate much prior to 40 years of the present election. That
apart he has also obtained the caste certificate in the year 2002 for
obtaining a Bank loan. This Court found that returned candidate has taken
all of its attempt to get OBC certificate described him as Jogi for the purpose
of election in the year 2012. That apart, the returned candidate has not
specifically disputed the issuance of caste certificate in his favour by the
learned Tahasildar, Mohakalapada in the year 2002 on his application vide
Misc Case 77 of 2002.
35. The school admission register of the returned candidate, it being the
record pertaining to the returned candidate admission to school prior to 40
years back. Therefore, it carries probative value of caste of the returned
candidate as stated earlier determined on the basis of caste of his parents
basically for the reasons that the caste is acquired by birth. When the record
of school admission of the returned candidate shows his caste as schedule
caste, then the documents which the returned candidates has produced vide
Ext-A and B etc. showing his caste as Jogi and OBC can not be relied upon.
All these documents formulated by the returned candidate are manipulated
and fabricated for the purpose of the election and to hold the post of
-
8/10/2019 Election Case No 09 of 2012 A_2
26/33
Sarapanch of Ramanagar Grama Panchayat which is serviced for OBC
candidate. The upshot of the discussions aforesaid is that the materials on
records taken in their entirety together with the circumstantial evidence goes
to show that the election petitioner has clearly established that the returned
candidate and his family belong to scheduled caste. It is also clear that from
around 2012, the returned candidate has made efforts to show his caste as
'Jogi', a OBC. Consequently, this tribunal also hold that the returned
candidate who did not belong to a OBC, was not qualified to be chosen to fill
a seat for Sarapanch which reserved for OBC.
Decision on Issue No IV with reasons:
36. The above two issues are closely relate to the relief that can be
passed in this case in addition to the adjudication of the dispute of this case.
The question rest like thus, whether the election petitioner can be declared
duly elected to the office of Sarapanch of the Ramnagar Gram-Panchayat as
per the provision of Odisha Gram-Panchayat Act. Sections 34, 40 and sub-
Sections (1) and (2) of Section 38 of the Act, which are relevant for these
purpose, provide as under:-
"34. Relief that may be claimed by the petitioner- A petitioner,
may, in addition to claiming a declaration that the election of all or any of the
returned candidates is void claim a further declaration that he himself or any
other candidate has been duly elected.
-
8/10/2019 Election Case No 09 of 2012 A_2
27/33
-
8/10/2019 Election Case No 09 of 2012 A_2
28/33
declare any other candidate to have been duly elected. Which of the two
alternate powers vesting in the Civil Judge (Junior Division) shall be
exercised depends on his forming an opinion as to which of the two reliefs
would be more appropriate in the circumstances of the case. Depending on
such finding such other candidate may be declared to have been duly elected
over and above the declaration that the election of the returned candidate
was void.
38. In the case at hand, there are three candidates in the election fray.
The opposite party, though declared elected, but found to have been
disqualified from contesting the election for belonging to SC Category and he
is not illegible to hold the office of Sarapanch of Ramnagar Gram-Panchayat
which is reserved for OBC. Deeming there is two candidate left, i.e. the
election petitioner, and another duly nominated candidate. However, as per
the prayer in the petition, the Court could not declare the petitioner as
successful candidate in the election since majority of the votes were secured
by the returned candidate and declaration of such prayer would not reflect
the mandate of the electorate. It is undisputed facts that petitioner as well
as the returned candidate and another have filed their respective nomination
papers and fought in the election fray and out of the said election process,
the returned candidate was became successfully having secured highest
votes but in course of the trial, the petitioner has successfully proved its
case that the returned candidate is disqualified to contest or hold the post of
Sarpanch of Ramnagar Grama Panchayat as per the discussion made
-
8/10/2019 Election Case No 09 of 2012 A_2
29/33
-
8/10/2019 Election Case No 09 of 2012 A_2
30/33
per the law. The copy of this judgment be sent to the District Election Officer,
Kendrapara for his information and necessary action.
The pleader fee at contested scale.
Prepare the decree accordingly.
Judgment dictated to Stenographer, typed by him, corrected by
me and pronounced the same in the open Court today this the 1st day of
November, 2013 under my hand and seal of this court.
Civil Judge, Junior Division,K e n d r a p a r a.
APPENDIX
List of witness examined on behalf of election petitioner.
Pw 1 Samar Keshari Mohapatra
Pw 2 Duryodhanb Behera
Pw 3 Bhagaban Sahoo
P.w. 4 Basanta Kumar Sahoo
P.w. 5 Banamali Jena
List of witness examined on behalf of opp.party
OPW 1 Millan Kumar Debnath
OPW 2 Suresh Debnath
OPW 3 Nabadweep Debnath
-
8/10/2019 Election Case No 09 of 2012 A_2
31/33
OPW 4 Dijendralal Debnath
OPW 5 Jayadev Debnath
List of documents filed on behalf of election petitioner.
Ext-1 Information obtained from PIO Mahakalapara Panchayat Samniti
regarding nomination.
Ext-2 Certified copy of care record in MC 77.02 of Tahasildar
Mohakalapara
Ext-3 Information of Headmaster Govt. High School Chandikhol obtained
under RTI Act
Ext-4 Certified copy of RSD No 2148 dtd. 30.6.1998 N.C.Barik and A.K.
Debnath
Ext-5 Certified copy of ROR No 394/221 of vill-Ramnagar
Ext-6 Information obtained under RTI Act from PIO Mohakalapada
Tahasil regarding MC. No 302/07
Ext-7 Information obtained under RTI Act from PIO MohakalaparaBlock regarding schedule caste stipend of Bitu Debnath of Ramnagar.
Ext-8 Certified copy of order, copy of application in MC No 302/07
Ext-9 Certified copy of CR in MC No 54/93
Ext-10 Certified copy of CR in MC 55/93
Ext-11 Admission register of Govt. High School,Chandikhol for the year
1962 to 1975
Ext-11/a Entry Mp 1117/28 dtd. 18.7.1972 in Ext-11
Ext-3/a Signature of H.M.Govt High School, Chandikhol in Ext-3
Ext-12 Authorization letter No 469 dated 8.5.13 of Sub-Registrar,
Mohakalpada
-
8/10/2019 Election Case No 09 of 2012 A_2
32/33
Ext-12/a Signsature of Sub-Registrar, Marsaghai on Ext-12
Ext-13 Registrar of Sale deed sub Registrar, Mohakalapara.
Ext-13/a Entry vide page No 105 to 116 relates to sale deed No 2148 dtd.
30.06.1998 in Ext-13
Ext-14 Voter identity card issdued by election commissioner by Odisha
Ext15 Resident Certificate of Prassan Kumar Behera.
List of documents filed on behalf of Opposite party.
Ext-A Certified copy of ROR khata no 93
Ext-B caste certificate
Ext-C Certified copy of order in Misc
Ext-D Cerrtified copy of ROR 371
Ext-E Certified copy of 315
Ext-F Certified copy of ROR 171
Ext-G Certified copy of ROR khata no 168
Ext-H Certified copy of ROR khata 140
Ext-J Certified copy of ROR Khata 179
Ext-K Certified copy of ROR khata no 34
Ext-L Certified copy of ROR Khata no 81
Ext-M Certified copy of ROR Khata no 174
Ext-N Certified copy of ROR Khata no 3
Ext-P Certified copy of ROR Khata no 22
Ext-Q Certified copy of ROR Khatra no 57
-
8/10/2019 Election Case No 09 of 2012 A_2
33/33
Ext-R Certified copy ofROR Khata no 58
Ext-S Certified copy of ROR Khata no 192
Ext-T Certified copy of ROR khata no 117
Ext-U Certified copy of ROR khata no 43
Ext-V Certified copy of ROR Khata no 44
Ext-W Caste Certificate.
Civil Judge, Junior Division,
K e n d r a p a r a.