JUDGMENT 1. THIS election petition was filed by the election petitioner challenging the election of the Respondent from 45 Maldah (Scheduled Caste) Legislative assembly Constituency held on 19th May, 1982. The case of the election-petitioner is that during the scrutiny of the nomination papers objection was taken by the petitioner to the nomination of the Respondent on the ground that the Respondent was not qualified to be chosen to fill the seat under the pro visions of Article 332 of the Constitution of India and under section 5 (a) of the Representation of the people Act, 1951 inasmuch as the Respondent was not a member of any of the Scheduled Castes. In support of the aforesaid objection, documentary as well as oral evidence was led by the petitioner before the returning Officer to establish that the Respondent was a caste hindu belonging to the caste or sub-caste "saha" which is not a Scheduled Caste as declared by the President of India under article 341 of the Constitution of India. Evidence was led by the petitioner that in old documents the father of the Respondent was described as belonging to Maheswari Vaisya caste. The Respondent, however, claimed that he belonged to the caste "sunri (excluding Saha)" which is a Scheduled Caste in. West bengal. It is alleged that the Respondent could not produce any Scheduled Caste Certificate in support of his claim but alleged that he had submitted a petition for granting a Scheduled Caste Certificate to him on 22nd April, 1982. It is also alleged that on being asked by the Returning Officer the Respondent produced a few Scheduled Caste Certificates which were allegedly granted to some of his relatives, in which those relatives were shown as members oil the Sunri Community 2. IN case of the Scheduled Caste' Certificate of Tarun Kanti saha, son of Hridoy Gobinda Saha upon which the Respondent relied, although Tarun Kanti Saha was granted a Scheduled Caste certificate the application of his father Hridoy Gobinda Saha for a Scheduled Caste Certificate was refused by the Authority. It also appeared that some other relatives of the Respondent including one Bikash Saha, son of Rati Kanta Saha, had made an application for grant of Scheduled Caste Certificate but the application was refused by the authority concerned. It also appeared that some other relatives of the Respondent including one Bikash Saha, son of Rati Kanta Saha, had made an application for grant of Scheduled Caste Certificate but the application was refused by the authority concerned. The Returning Officer, however, rejected the petition of the election-petitioner by an order dated 26th April, 1982 and accepted the nomination of the Respondent In the said order the Returning Officer, inter alia observed as follows:- It was made clear to all that production of a Scheduled caste Certificate is not a requirement of law which requires a candidate to belonged to a caste which is recognised as a Scheduled Caste in the area. While a Scheduled Caste certificate issued by competent authority will be accepted as sufficient evidence regarding, the caste of a candidate, if the candidate is not in possession of a caste certificate his nomination cannot be automatically declared invalid if he satisfied the Returning Officer through production of relevant documents and/or otherwise. " 3. BEFORE the Returning Officer the Respondent produced original Scheduled Caste Certificates of 13 persons Those persons are the relatives of the Respondent. The Returning Officer held after considering the said Scheduled Caste Certificates of the relatives of the Respondent produced before him as follows : - "i accept Scheduled Caste Certificate granted by competent authorities as conclusive evidence of the castes of the persons referred to in those certificates. There was no specific objection regarding the relationship shown by Phani Bhusan Roy with these certificate holders. Two of the nearest cousins on the father's side of Phani Bhusan roy are of Sunri Caste. Besides, Phani Bhusan's wife, his mother his grand-mother are all of the same caste namely Surni (each has been independently proved) One of Phani Bhusan's sister and one of the sisters of Phani bhusan's grand-father was married to persons of Sunri caste. Phani Bhusan Roy had claimed other marriages in the family to persons of Sunri Caste but in absence of proof through Scheduled Caste Certificates, these were not considered. On a careful consideration of the evidence produced by Shri Phani Bhusan Roy and the objector, Shri Subhendu kumar Chowdhury, I am inclined to believe that Phani Bhusan roy belongs to Sunri Community. The objection regarding the Caste of Phani Bhusan Roy is thus set aside. " 4. THE written statement has been filed on behalf of the respondent. On a careful consideration of the evidence produced by Shri Phani Bhusan Roy and the objector, Shri Subhendu kumar Chowdhury, I am inclined to believe that Phani Bhusan roy belongs to Sunri Community. The objection regarding the Caste of Phani Bhusan Roy is thus set aside. " 4. THE written statement has been filed on behalf of the respondent. It is denied that the Respondent does not belong to any Scheduled Castes or that the election from the said legislative Assembly of the Respondent is bad or should be set aside under the provisions of Section 100 (1) (a) of the representation of People Act, 1951. The issues were settled by B. C. Basak J. on 20th July, 1983. The said issues were as follows : - "1. (a) Did the respondent belong to any Scheduled Caste at the relevant time (b) If not, was the respondent not qualified to fill the seat for 45 Maldah (S.C.) Legislative Assembly Constituency at the relevant time 2. To what relief, if any, is the petitioner entitled 5. MR. Lala learned counsel appearing on behalf of the respondent has taken a preliminary point that this election petition is not maintainable. He wants this preliminary point to be decided first in accordance with the provisions of sub-rule (2) of Rule 2 of Order 14 of the Civil Procedure Code. It is his contention that in the event it is held that this Court has no jurisdiction, the Court will not proceed to hear this matter on merits. According to Mm, in view of the provisions' contained in Section 170 of the Representation of the People act, no Civil Court shall have jurisdiction to question legally of any action taken or of any decision given by the Returning officer or by any other person appointed under the said Act in connect ion with an election. It is the contention of Mr. Lala that High Court is a Civil Court for the purpose of trying election petition and this Court cannot have any jurisdiction to question the legality of the action taken or decision given by the Returning Officer in this case holding that the respondent is a member of the Scheduled Caste. This decision cannot be challenged before this Court in this election petition. This decision cannot be challenged before this Court in this election petition. It is also his contention that a Civil Court, the High Court in the instant case, has no jurisdiction to interfere in the matter pertaining to receipt, scrutiny, accepting nomination papers, counting of votes or declaration of results. 6. MR. Lala has relied on two decisions in support of his contention that High Court is a Civil Court while trying election petition. The first decision is in the case of Nrisinha kumar Sinha v. The Returning Officer reported in AIR 1953, calcutta 98. There this Court observed as follows: - "mr. R. Chaudhuri and other learned Counsel, appearing in other applications, referred to the meaning of the word "election" as given in the various Law dictionaries such as Stroud, Wharton, Osborne Ayyar and contended that it is only after polling that a real Election takes place and the word "election" in Article 329 (b) should be construed in this sense and should not be given an extended meaning as comprising the various stages which lead to an Election. But this contention is, in my view not sound. Part XV of the Constitution is headed and deals with "elections" and as I have pointed out before, the word in Article 329 (b) has reference to the entire procedure including the stage of Nomination of Candidates. "mr. Choudhury and Mr. Apurbadhan Mukherjee also drew my attention to S. 75 of the Local Government Act, 1894, (56 and 57 Victoria Ch. 73) to show that Election does not ordinarily include Nomination within its; connotation, and so "election" was defined in the Local Government Act, 1894, as "including both Nomination and Poll". But this definition does not assist the argument of Mr. Chaudhuri at all. It is for the purpose of the Local Government Act that the word has been given a special meaning according to Mr. Chaudhuri, the word, Election" in its strict sense has reference to the stage of Polling. If that is so then why is it that in the Local Government Act "election" is defined as including Poll. Chaudhuri at all. It is for the purpose of the Local Government Act that the word has been given a special meaning according to Mr. Chaudhuri, the word, Election" in its strict sense has reference to the stage of Polling. If that is so then why is it that in the Local Government Act "election" is defined as including Poll. It is clear that the definition in the Local Government Act leads to nowhere and is not of assistance to the petitioner "the learned Advocate General has also placed reliance on s. 170 of the Representation of the People Act, 1951, and has contended that the jurisdiction of the Courts of Civil Jurisdiction, to entertain petitions questioning the legality of the decision of Returning Officers in connection with elections, is ousted by this Section. Mr. Santosh Kumar Basu has urged in answer to this point that the words "civil Court" in S. 170 do not include High court but subordinate courts which exercise civil jurisdiction. Mr. Basu relies on the decisions of this Court reported in 'narsing Das Tansukdas v. Chogemull 43 Cal. W. N. 613 (F. B.) and - 'khirode C. Ghosh v. Narendra N. Sanyal, 44 Cal. W. N. 485 (S. B.) But the considerations which led the learned Judges in that case to decide that "civil Court" in the Bengal Agricultural Debtors Act did not include the High Court that if it was construed the expression "civil Court" included the high Court then the Bengal Agricultural Debtors Act would have to be declared as ultra vires being in contravention of S. BOA of the Government of India Act, 1915-1919, and so the expression was to be const trued as not Including the High court, and as not affecting the Jurisdiction of the High Court. Moreover, the expression "civil Court" was written in Capital letters (page 620 left hand column paragraph 3) i.e. with Central "c" and so it was construed as referring to courts of that particular class as distinguished from High Court. But in s. 170 of the Representation of the People Act, 1951 Capital "c" has not been used with regard to the expression "civil" court so in s. 170 the referance is to all court of civil consideration including the high. Court the Decision in 43 cal. W. N. 613 (F. B.) is, therefore, of no assistance to the petitioner. But in s. 170 of the Representation of the People Act, 1951 Capital "c" has not been used with regard to the expression "civil" court so in s. 170 the referance is to all court of civil consideration including the high. Court the Decision in 43 cal. W. N. 613 (F. B.) is, therefore, of no assistance to the petitioner. "it was further contended by Mr. Basu that S. 170 of the representation of the People Act, 1951, is ultra vires inasmuch as under Art. 327 Parliament has powers to makes laws relating to election matters only subject to the provisions of the constitution', and if S. 170 has purported to affect the jurisdiction of the High Court under Article 226, the section must be declared as ultra vires to that extent. I am unable to accede to this contention. Article 327 only confers power on Parliament to make laws on electoral matters and specifies certain particular matters in respect of which it can make laws. It does not deal with power of Parliament to make laws affecting the jurisdiction of the High Court or any other Court. It is, however, clear from a reading of Article 246 and Items 72 and 95 of List I (Union List) in the Seventh Schedule to the Constitution that the " Parliament has exclusive powers to make laws affecting the jurisdiction of the High Court in election matters. There in nothing in Article 226 or any other provision of the constitution to show that the High Court has power expressly conferred on it to decide doubts and disputes concerning election. In the circumstances, S. 170 of the Representation of the People act, 1951 must be held to have been validly enacted. "but although S. 170 ousts the jurisdiction of the Civil courts, to deal with the matters mentioned in the section, there can be no doubt that if can be shown that the Returning Officer has not acted within the four corners of the Representation of the People Act, or. has acted in excess of his jurisdiction, or mala fide, the High Court has power to interfere under Article 226, notwithstanding the bar created by S. 170. As observed by the Judicial Committee in the case of Sec. of State v. Mask and Co. 67 Ind. App. has acted in excess of his jurisdiction, or mala fide, the High Court has power to interfere under Article 226, notwithstanding the bar created by S. 170. As observed by the Judicial Committee in the case of Sec. of State v. Mask and Co. 67 Ind. App. 222 (P. C.) "it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily interbreed but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the act had not been complied or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure." Mr. Lala has also relied on another decision of this Court in the case of Kanailal Bhattacharjee V. Nikhil Das and Anr. reported in AIR 1969 Calcutta 267. There this Court observed as follows : "mr. Siddhartha Ray contends that a "civil Court" in this section does not mean a Court constituted under the 1951 Act to try election petitions. This is a Court contemplated by Article 329 of the Constitution which provides, inter alia, that no election to a Legislative Assembly shall be questioned except by an election petition presented in such manner as may be provided for by or under any law made by the appropriate Legislature. Mr. Ray relies on the Supreme Court's observation in Durgasankar's case ibid that the Election Tribunal is endowed with a special jurisdiction (vide AIR 1954 S. C. 520 at p. 522 paragraph 4) In K. Kamaraja Nadar V. Kunju Thevar, AIR 1958 Sc 687 at p. 693 paragraph 20 the Supreme Court accepts the view that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. In Unamati V. Deasi Basavaraj, AIR 1958 SC 698 this view has been reaffirmed at page 701. On these authorities, Mr. In Unamati V. Deasi Basavaraj, AIR 1958 SC 698 this view has been reaffirmed at page 701. On these authorities, Mr. Siddhartha Ray contends that a Court trying election petitions is not a Civil Court at all; before this Court a person comes in the exercise of a constitutional right the procedure of this Court has been laid down try statute there is, therefore, no question of the Court hearing an election petition as a Civil Court and as such, Section 30 of the 1950 Act does not apply to this Court" 7. MR. Lala therefore, contends that once the Returning officer has given a decision in favour of the first respondent holding that he is a Scheduled Caste candidate after considering the evidence produced, such decision cannot be the subject matter of challenge in the election petition and accordingly, this petition should be dismissed. 8. MR. S. K. Ganguly, Learned Advocate appearing for the election petitioner, has submitted that the Court in deciding an election petition is not only a Civil Court but it has exclusive jurisdiction to decide all questions relating to any election. If the Returning Officer in accepting the nomination of the respondent has acted erroneously, it cannot be said that such erroneous decision cannot be corrected by the High court in trying an election petition. According to him, if the contention of Mr. Lala is accepted, then the decision of the Returning Officer, whatever might be the decision of the returning Officer - whether perverse or otherwise - can never be challenged and the election petitioner will be without his remedy. When the Representation of People Act is a complete code itself, the question of challenge any decision of the returning Officer under Article 226 of the Constitution will not arise. Mr. Ganguly has relied on a decision of the Supreme court in the case of N. P. Ponnuswami v. The Union of Indiaand State of Madhya Bharat and Ors. reported in AIR 1952 SC 64 . There the appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem District. On 28th November, 1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the appellant's nomination paper on certain grounds. On 28th November, 1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the appellant's nomination paper on certain grounds. The appellant thereupon moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the appellant's application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329 (b) of the Constitution. The appellant's contention in the Supreme Court was that the view expressed by the Supreme Court is not affected by Article 329 (b) of the Constitution and that he was entitled to a writ of certiorari in the circumstances of this case. There the Supreme Court held : "it seems to me that the word "election" has wide sense, that is to say, it connect the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of selections" in Article 324 specifically points to the wide meaning, and, the meaning can also be read consistently into the other provisions can which occur in Part XV including Article 329 (b). we would "election" can be add has been appropriately used with reference to the etc. the process which consists of several, stages and embraces many steps, some of which may have an important bearing on the result of the process. "the question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extra ordinary jurisdiction of the High Court under Article 226 of the constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act which as I shall point cut later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre- polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it "the Representation of the People Act, 1951 which was passed by Parliament under Article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country. That Act is divided into 11 parts, and it is interesting to see the wide variety of subjects they deal with. Part II deals with "the qualifications and disqualifications for membership." Part III deals with the notification of General Elections. That Act is divided into 11 parts, and it is interesting to see the wide variety of subjects they deal with. Part II deals with "the qualifications and disqualifications for membership." Part III deals with the notification of General Elections. Part IV provides for the administrative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers, requirements of a valid nomination, scrutiny of nominations etc. and procedure for polling and counting of votes. Part VI deals with disputes regarding elections and provides for the manner of presentation of election petitions, the Constitution of election tribunals and the trial of election petitions, Part VII outlines the various corrupt and illegal practices which may affect the elections, and electoral offences. Obviously, the Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made there under. The provisions of the Act which are material to the present discussion are sections 80, 100, 105 and 170, and the provisions of Chapter II of: Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as Article 329 (b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part." Section 100,' as we 'have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper. Section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive." Section 170 provides that "no Civil Court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election." These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing -it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in wolverhampton New Year Works Co. v. Hawkesford, ( 1859) 6 C. B. (N. S.) 336, at p. 356 in the following passage : "there are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common Law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law, is created by a statute which at the same time gives a special and particular remedy for enforcing it. . . . . . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. " The rule laid down in this passage was approved by the House of Lords in Nevile v. London. Express newspapers Ltd. (1919) A. C. 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon grant and Co., 1935 A. C. 532 and Secretary of State v. Mask and Co., 44 C. W. N. 709; and it has also been held to be equally applicable to enforcement of rights (Hurdutrai v. Off. Assignee of Calcutta, 52 Cal. W. N. 343 at p. 349). Assignee of Calcutta, 52 Cal. W. N. 343 at p. 349). That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage". The Supreme Court also noted another contention raised in the said case which is as follows : "before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words : "it was next contended that if nomination is part of election a dispute as to the validity of nomination is a dispute relating to election and that can be called in question only in accordance with the provisions of Article 329 (b) by the presentation of an election petition to the appropriate Tribunal and that the Returning officer would have no jurisdiction to decide that matter, and it was farther argued that S. 36 of Act 43 of 1951 would be ultra vires inasmuch as it confers on the returning Officer a jurisdiction which article 329 (b) confers on a Tribunal to be appointed in accordance with the Article. " This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. Under S. 36, representation of the People Act 1951, it is the duty of the Returning officer to scrutinize the nomination papers to ensure that they comply with the requirements of the act and decide all objections which may be made to any nomination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensue. In dischargoing the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. In dischargoing the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal, however, turns not con the construction of the single word "election", but on the construction of the compendious expression "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the representation of the People Act 1951, Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method". 9. MR. Ganguly has also relied on a judgment of the Supreme Court in the case of Durai Muthuswami v. N. Nachiappan and Ors. reported in AIR 1973 SC 1419 . In that case the appeal arose out of the dismissal of the Election petition filed by the petitioner for setting aside the result of the election held in March 1971 from a Tamil Nadu Legislative assembly Constituency in which the first respondent was declared elected. In. that case before the Returning Officer and other candidate by the name Ramaswamy had presented an objection petition to the first respondent's nomination on the ground that he had a subsisting contract with the Highways Department of tamil Nadu and with the Panchayet Union and was also an agent for selling tickets in the Raffle conducted by the State of tamil Nadu. The Returning Officer rejected this contention and accepted those nomination papers of the first respondent. Subsequently, ramaswamy withdrew from the contest and the Appellant and the first respondent were the only candidates in the Election petition. The Appellant had mentioned that on the date of presenting his nomination papers the first respondent, inter alia, had subsisting contract with the State Government and the election of the First respondent was void on that ground. Subsequently, ramaswamy withdrew from the contest and the Appellant and the first respondent were the only candidates in the Election petition. The Appellant had mentioned that on the date of presenting his nomination papers the first respondent, inter alia, had subsisting contract with the State Government and the election of the First respondent was void on that ground. The First Respondent maintained that there was no subsisting contract with the State Government on the date of filing of the nomination and that the contention of the appellant that his election was void on that ground was not legally sustainable and it was also contended that the appellant had not alleged that by reason of such improper acceptance the result of the election had been materially affected. In that case the Supreme Court held as follows: "one other point which the learned Judge failed to notice is that on the allegations contained in the petition, if they were established, the respondent must be deemed to suffer the disqualification under S. 9-A of the Act and all that S. 100 (1) (a) requires is that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act. In order to declare his election void it is not necessary that the election petition should state that the result of the election was materially affected thereby. The question of the election being materially affected does not arise in a case falling under S. 100 (1) (a)". 10. THE next decision cited by Mr. Ganguly is in the case Ganapat v. Presiding officers and Ors., reported in AIR 1975 SC 1420. In the election to the Maharastra legislative Assembly held in March'72 to fill up a seat from the North Nagpur Constituency reserved for members of the scheduled Caste, the second respondent was declared elected. The appellant filed an election Petition questioning the election. That petition having been dismissed by the high Court of Bombay, the appeal was preferred before the Supreme Court. One of the issues being Issue No. 10 in that case related to the question as to whether the Respondent Nos. 2 and 4 to 10 could be said to be the members of the Schedules Caste so as to be eligible to stand for election from the said Constituency. One of the issues being Issue No. 10 in that case related to the question as to whether the Respondent Nos. 2 and 4 to 10 could be said to be the members of the Schedules Caste so as to be eligible to stand for election from the said Constituency. The Supreme Court first dealt with the said question as follows: "we must first of all notice the fact that when the nominations were scrutinized the appellant did not object to the nomination papers of respondents, 2, 6 and 9 being accepted on the ground that they were not members of the scheduled Castes. Though legally there is no bar to the appellant raising that question in the election petition questioning the election of the 2nd respondent his allegation that respondents 2, 6 and 9 are not members of the scheduled Castes would be considerably weakened because of his failure to object at the time of the scrutiny of the nomination papers". The next decision cited by Mr. Ganguly is in the case of S. Raghubir Singh Gill v. Gurcharan singh Tohra reported in AIR 16980 SC 1362. The following passage of the Supreme Court has been relied: "therefore, the wide comprehensive panorama of S. 100 will certainly embrace the grievance made by the election petitioners in this petition. Conversely, S. 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of chapter II in the Act. Section 100 which finds its place in Chapter III sets out grounds for declaring election to be void. If the contention of the appellant that the grievance for voiding the election made in the petition is not comprehended in any of the sub-sections of S. 100 is accepted and there is no other provision in the Act for voiding election, the election petitioners would be without a remedy. It should mean that even though one can indulge in forgery - what is tampering of ballot: papers, if not forgery - and get away with it. In order to ensure the purity of election it is better to so construe S. 100 as to embrance within its fold, as has been done by the Constitution Bench, all conceivable infirmities which may be urged for voiding an election. Therefore, the contention of the appellant must be negatived". 11. MR. In order to ensure the purity of election it is better to so construe S. 100 as to embrance within its fold, as has been done by the Constitution Bench, all conceivable infirmities which may be urged for voiding an election. Therefore, the contention of the appellant must be negatived". 11. MR. Ganguly in the light of the principles laid down in the said decisions of the Supreme Court has contended that the decision of the Returning Officer holding that the respondent was a Scheduled Caste can be challenged in the Election Petition and there is no other forum for challenging such decision of the Returning Officer. It is his contention that if in the Election the decision of the Returning Officer regarding accepting the nomination paper of the respondent cannot be challenged, then the Election Petition will become an idle formality. 12. MR. Lala has sought to distinguish those decisions of the Supreme Court on the ground that no specific issue was raised in those cases under Section 170 of the Representation of People act, 1951. According to him the Election petition is not maintainable in view of the provisions of Section 170 of the said Act, once a decision has been rendered by the Returning Officer that the respondent does belong to a scheduled Caste, such decision cannot be challenged at all in the election petition. Having regard to the facts and circumstances of this case and the principles laid down by the Supreme court in the decisions referred to above, i am of the view that the contentions raised by Mr. Lala must fall. Section 170 of the Representation of the People Act, 1951 provides that no Civil Court has jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer but this cannot be construed a taking away the jurisdiction of the High Court trying an Election Petition to decide whether the decision of Returning Officer is erroneous or not. It is true that in none of the decisions relied on by Mr. Ganguly the ground as regards the maintainablity of the Election Petition in view of the provisions of Section 170 was taken, but the supreme Court in Ganpath v. Presiding Officer and Ors. It is true that in none of the decisions relied on by Mr. Ganguly the ground as regards the maintainablity of the Election Petition in view of the provisions of Section 170 was taken, but the supreme Court in Ganpath v. Presiding Officer and Ors. (supra) held that even if no objection was raised at the time of scrutiny of the nomination paper that candidate concerned did not belong to Schedule Caste and as such he was not qualified, the Court in deciding an Election Petition could go into that question, if such ground is taken in the Election Petition. Under section 5 (a) of the said Act a person shall not be qualified to be chosen to fill a seat in the legislative assembly of a State unless in the case of a seat reserved for Schedule Castes, he is a member of any of those castes and is an elector for any assembly constituency in that State. In my view, therefore the question whether the petitioner belongs to Schedule caste or not goes to the root of the matter. If the respondent does not belong to the Schedule Caste as alleged by the Election petitioner, in that event the respondent would not be qualified to contest the election in the reserved seat and his disqualification will render his election as nullity. Even if the question whether a person belongs to Schedule Caste or not is considered by the Returning Officer on evidence, even then such decision of the Returning Officer can be challenged in the Election Petition. There is no other alternative forum for determination of such issue. 13. IF the contention of Mr. Lala is accepted in that event any eroneous or preverse decision of the Returning Officer as regards qualification of the candidate cannot be questioned in an Election Petition. This cannot be the object of Section 170. An unqualified person cannot be a member and it is the High Court trying an election petition would ultimately decide the issue. The scope of Section 170 of 1951 Act is different from Section 30 of 1950 Act. By an Election Petition an election petitioner cannot challenge directly or indirectly the electoral roll because entries in the electoral roll are deemed to be conclusive. The Election Petition in this case does not challenge the entries of the electoral roll. The scope of Section 170 of 1951 Act is different from Section 30 of 1950 Act. By an Election Petition an election petitioner cannot challenge directly or indirectly the electoral roll because entries in the electoral roll are deemed to be conclusive. The Election Petition in this case does not challenge the entries of the electoral roll. The Court trying an election petition cannot go into the validity of the entries made in the electoral roll. Here the question is whether the respondent was qualified to file. his nomination paper as a schedule caste candidate. If he did not belong to Schedule Caste then his nomination paper could not have been received by the Returning Officer. This Court in trying an Election Petition can go into the question whether: the returning Officer rightly or wrongly held that a particular candidate does or does not belong to Schedule Caste. Under section 100 of the Representation of the People Act an Election will be void if on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the said Act. The grievance made by the election petitioner will come within the purview of Section 100 of the Said Act. The determination made by the Returning Officer goes to the root of the election itself. Such determination can only be called in question by an Election Petition. 14. IN the premises, the preliminary objection raised by the respondent that this Court has no jurisdiction to entertain this Election Petition has to be rejected. The Election Petition will be heard on the issues which have already been settled. Let the matter appears as marked "to be mentioned" on 2. 0th November 1985. Mr. R. K. Lala has asked for a plain copy of this judgment. Let a plain copy of the judgment be handed over to him.