Election Case No 09 of 2012 A_2

8/10/2019 Election Case No 09 of 2012 A_2

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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

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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.


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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


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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.


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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


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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


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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.


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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.


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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


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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.


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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


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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.,


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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.


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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


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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


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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


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(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-


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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-


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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


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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


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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


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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.


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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


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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


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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


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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


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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.

Election Case No 09 of 2012 A_2

Documents

Transcript of Election Case No 09 of 2012 A_2