NARA RAGHAVA RAO Vs. NADIABASI BISWAS

JUDGEMENT

(1.) The petitioner has challenged the election of the respondent to the Orissa Legislative Assembly from 86 Malkanagiri (Scheduled Caste) Constituency.

(2.) The case of the petitioner stated briefly is that his father late Nara Karanaya belonged to the Scheduled Caste of Domba (Dombo) community. He converted himself to the Christian religion. He married a second wife who was a Hindu through whom the petitioner was born. After the second marriage late Nara Karnaya ceased to profess the Christian religion and adopted the Hindu religion. He performed all functions and ceremonies and followed all customs and practices connected with the Hindu religion. Therefore, late Nara Karnaya, his second wife and the petitioner professed Hindu religion, were treated as such and belonged to Domba scheduled caste community. The petitioner had obtained a scheduled caste certificate (Ext.2) from the Tahasildar, Motu. In the general election of the year 1985 for the Orissa Legislative Assembly, the petitioner filed his nomination paper as a candidate for 86-Malkanagiri (Scheduled Caste) Constituency and along with his nomination paper he enclosed the scheduled caste certificate (Ext.2). There were six other scheduled caste candidates, namely, Ramesh Majumdar, Sukumar Burman, Sadananda Mandal, Naka Kannayya, Naka Lachayya and respondent Nadiabasi Biswas. At the time of scrutiny of the nomination papers on 9-2-1985, Naka Kannayya raised objection to the effect that the petitioner did not belong to the scheduled caste of Domba community, but was a Christian. He produced some documentary evidence to prove the fact. The Returning Officer conducted an enquiry on 9-2-1985 and again on 11-2-1985, referred to documents and passed an order (Ext.3) holding that the petitioner did not belong to the scheduled caste of Domba community, but was a Christian and so he rejected the nomination paper, as a result of which, the petitioner was prevented from contesting in the said election. The nomination paper of Ramesh Majumdar was rejected and Sadananda Mandal withdrew his candidature. Out of the rest of the candidates who contested the election, the respondent secured majority votes and was declared elected. It is averred that on account of illegal rejection of the nomination paper of the petitioner and as he was wrongly prevented from contesting the election from 86-Malkanagiri (Scheduled Caste) Constituency, the election was materially affected and so the election of the respondent should be set aside.

(3.) The sole respondent who is the elected candidate of 86-Malkanagiri (Scheduled Caste) Constituency in his written statement has, inter alia, contended that the election petition is barred by limitation and is otherwise liable to be dismissed under S.86(1) for non-compliance of the provisions of Ss.81, 82, 83 and 117 of the Representation of the People Act (referred to as 'Act'). The petitioner is a Christian by birth and all through professes the Christian religion. He never belonged to the scheduled caste of Domba community. His father was never a Hindu belonging to the scheduled caste of Domba community nor was he converted into Christianity at any time. As a matter of fact, the petitioner, his father late Nara Karnaya and his forefathers were at all points of time Christians. The petitioner's mother was not a Hindu. She was also a Christian. Assuming that she was a Hindu, after her marriage with late Nara Karnaya she professed Christian religion. So the petitioner born of Christian parents is a Christian by birth. The petitioner and the members of his family never practised Hindu religion nor performed functions and ceremonies connected therewith. The petitioner has never lived as a Hindu nor he has been treated as such by the Hindu community. He goes to the Church and performs religious ceremonies connected with Christianity. Therefore, the scheduled caste certificate (Ext.2) granted in favour of the petitioner was not based on proper enquiry and was false. The petitioner had filed his nomination paper for election to the office of the Chairman of Podia Panchayat Samiti by making a security deposit of Rs.100/- as a general candidate because, be belonged to the Christian Community. Had he been a scheduled caste candidate of Domba community, he would have made the security deposit at the concessional rate of Rs.50/-. Therefore, an objection being raised by another candidate, Naka Kannayya, to the effect that the petitioner was not a scheduled caste candidate but was a Christian, the Returning Officer made proper enquiries and was satisfied on documentary evidence that he was actually a Christian and did not belong to the Scheduled Caste of Domba community. So he had no right to contest from 86-Malkanagiri (Scheduled Caste) constituency to the Orissa Legislative Assembly. Accordingly, the nomination paper of the petitioner was rightly rejected by order (Ext.3). It is averred that the election took place on 5-3-1985 and the result thereof was declared on 6-3-1985. The respondent who had contested as an independent candidate secured maximum number of valid votes and was declared elected. His election, therefore, cannot be set aside as void.