BAIRAGI CHARAN NUAIN Vs. GOKULA SUNA

JUDGEMENT

(1.) THIS writ petition has been filed against the Judgment and order dated 5.1.2004 passed by the Addl. District Judge, Sonepur in Election Appeal (RFA No. 57 of 2003) filed by Opposite party No. 1 allowing the appeal and setting aside the Judgment and order dated 20.03.2003 passed by the Civil Judge (Jr. Division), Sonepur in Misc. Judicial Case No, 17 of 2002 and declaring the election of the Petitioner as a returned candidate to the office of Sarpanch, Lachhipur Grama Panchayat void and consequently declaring a casual vacancy to the said office.

(2.) THE brief facts of the case are that the seat of Sarpanch, Lachhipur Grama Panchayat was reserved for Scheduled Castes category in the last election held in the year 2002. The Petitioner as well as Opposite party No. 1 both filed their nomination papers before the Election Officer scrutiny of which was conducted on 22.1.2002 wherein the Opposite party No. 1 raised written objection before the Election Officer challenging the validity of nomination papers filed by the Petitioner with the allegation that he was not a person belonging to scheduled castes community. But the Election Officer did not accept the same and accepted the nomination papers of the Petitioner. Thereafter, the election was held and the Petitioner was declared elected. Thereafter, Opposite party No. 1 filed election petition under the Orissa Grama Panchayat Act before the Civil Judge (Jr.Division), Sonepur which was registered as M.J.C. No. 17 of 2002. The Learned trial, Court framed the following issues:

(3.) THE Election Petitioner -Opposite party No. 1 in the instant writ petition P.W.I filed a certified copy of 'Record of Rights') (in short 'ROR') and the orders dated. 19.1.2002 and 21 -1 -2002 passed in Revenue Misc. Certificate Case No. 381 of 2002, vide order dated. 21.1.2002 the certificate regarding schedule caste of the instant Petitioner was refused on the ground that in the ROR it is mentioned as 'Keuta' caste which is not expressly provided in the Presidential order. The ROR holding No. 245 of 1998 of Mouza -Lachhipur, P.S. Dungripalli, P.S. 153 of 4th settlement in which his caste has been mentioned as 'Keuta'. Therefore, the Opp. party had relied upon the said document apart from oral evidence by him as well as given by P.W.2, Makardhwaja Sethi, who had also given oral evidence stated that the instant Petitioner is 'Keuta' by caste. In rebuttal, the writ Petitioner as OPW 1 stated that he belonged to 'Dewar' caste' and the caste certificate was issued by the Tahasildar, Sonepur in his favour which was marked as Ext.4. OPW 2, Muralidhar Naik, had also given oral evidence stating that the instant Petitioner Bairagi Charan Nuain belongs to 'Dewar' caste.