NAKULA CHARAN DAS Vs. KUSHANATH DAS & OTHERS

JUDGEMENT

(1.) 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 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 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 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.