SEBATI BEHERA Vs. SUBASI NAYAK

JUDGEMENT

(1.) Judgment of learned Civil Judge (Junior Division), Kamakshyanagar in Election Misc. Case No. 8 of 2002 and the confirming judgment of learned Ad hoc Addl. District Judge, Kamakshyanagar in F.A.O. No. 5/2 of 2003-04 is under challenge.

(2.) Facts leading to the dispute are that the writ petitioner Sebati Behera (hereinafter referred to as opposite party No. 2) and opposite party No. 1 Subasi Nayak (petitioner in the Election Misc. Case and hereinafter referred to as 'the petitioner') were the two rival candidates contesting for the post of Sarpanch of Kalada Grama Panchayat under Parjang P.S. in the district of Dhenkanal. That post of Sarpanch is reserved for candidates belonging to scheduled castes, On 21.01.2002 nomination papers were filed. On 22.01.2002 nomination papers were accepted after scrutiny by the Election Officer, who is opposite party No. 2 in this writ petition and was opposite party No. 1 in the Election Misc. Case. At that stage petitioner raised objection that opposite party No. 2 was not a member of any scheduled caste. That objection was overruled by the Election Officer. On 21.02.2002 election was held and on 01.03.2002 Sebati Behera (opposite party No. 2) was declared elected. Thus, Subasi Nayak (petitioner) filed the Election Petition under Section 30 read with Section 31 of the Orissa Grama Panchayat Act, 1965 (in short 'the Act'). The main ground of challenge is that by the date of nomination and election opposite party No. 2 was not a member belonging to any of the Scheduled Castes and the Caste Certificate (Ext. B) granted in her favour by the Tahsildar is illegal. She further stated that if nomination paper of opposite party No. 2 would have been rejected, then she (petitioner) would have been declared elected without any contest. She also prayed to set aside election of the opposite party No. 2 and to declare her (petitioner) duly elected.

(3.) Opposite party No. 2 advanced counter contention that she is 'Kaibarta' by caste, which is synonymous to 'Dewar' caste as per the notification on the basis of the order of the President of India in accordance with the provision in Article 341 of the Constitution of India (in short 'Constitution'). The Election Officer filed a written statement stating that on the basis of the caste certificate issued by Tahsildar, Parjang in favour of opposite party No. 2 that she belongs to 'Dewar' ('Kaibarta'), he accepted her as a person belonging to Scheduled Caste and accepted the nomination paper.