Judgment ( 1. ) BY filing this writ under Articles 226/227 of Constitution of India, the petitioner seeks to assail the order dated 6-2-2001 (Annexure P-12) passed by Returning Officer, Ujjain, under Municipal Corporation Act, By impugned order, the Returning Officer has rejected the nomination paper of petitioner. Facts that led to filing of this writ need mention in brief. ( 2. ) AN election for Councillor for Ward No. 35 of Nagar Palika Nigam, Ujjain were announced. The Ward No. 35 was declared as a reserved constituency - earmarked for SC/st Community, for contesting election for the post of Councillor. ( 3. ) THE petitioner claiming to belong to Scheduled Tribe Community "halba" submitted his nomination paper on 26-9-2000, for contesting election for the post of Councillor from Ward No. 35. The respondent (Returning Officer) by his order dated 26-5-2000 (Annexure P-10) rejected nomination paper. The petitioner then felt aggrieved filed writ being W. P. No. 1175/2000 challenging the order rejecting his nomination. This Court by order dated 3-1-2000 (Annexuer P-11) allowed the writ and set aside the order of rejection. This Court while allowing the writ and setting aside the order of rejection, remanded the case for its reconsideration. After remand, the respondent again by impugned order dated 6-2-2001 (Annexure P-12) rejected petitioners nomination. It is against this rejection, the petitioner has felt aggrieved and filed this writ. ( 4. ) THE respondent has defended the impugned order and contended that petitioners nomination was rightly rejected. ( 5. ) HEARD Shri C. L. Yadav, learned counsel for the petitioner and Shri P. Verma, Govt. Advocate for the respondent. ( 6. ) IN substance, the submission of learned counsel for the petitioner while attacking the impugned order was that the basis on which the impugned order was passed by the Returning Officer itself was faulty and hence it vitiates the impugned order. According to learned counsel when admittedly, the petitioner was able to prove with reference to certificate issued by the Authority that petitioner belongs to Halba Community, the Returning Officer had no authority to disbelieve the certificate nor he should have ignored it. Learned counsel further submitted that documents filed by the petitioner clearly indicated that the petitioner was in fact a resident of Ujjain where person belonging to Halba Community were living. Learned counsel further submitted that documents filed by the petitioner clearly indicated that the petitioner was in fact a resident of Ujjain where person belonging to Halba Community were living. Learned counsel then pointed out that reliance placed by the Returning Officer on petitioner affidavit was not proper in as much as what was required to be examined and seen was not taken note of whereas what was not taken note of was relied on resulting in total non-application of mind. Learned counsel further pointed out that the Halba Community is admittedly declared to be a S. C. Community under Constitution (Scheduled Tribes) Order 1950 and also it is so declared for Ujjain and hence benefit of same should have been extended to petitioner. These were mainly the submission of learned counsel for the petitioner which were pressed in service. Learned counsel also relied on the dictum of Supreme Court reported in the case of AIR 2000 SC 525 . ( 7. ) IN reply learned counsel for the State while defending the impugned order contended that firstly, remedy of writ petitioner against the rejection of nomination paper lies in filing election petition and hence this writ be not entertained. Secondly, it was contended that the circular dated 13-8-1998 (Annexure R-1-P-16) dated 31-3-2000 (Annexure P-7) and circular dated 18-7-90 (Annexure P-8) would show that unless the person is the permanent resident of Madhya Pradesh, he is not entitled to get a certificate of the SC/st community of State of M. P. It was thus pointed out that since petitioner was resident of Maharashtra and having now claims to be migrated to Madhya Pradesh (Ujjain) and hence not entitled to get the benefit of caste certificate of Halba Community. These were mainly the submission urged by the learned counsel for the respondent while defending the impugned order of rejection of nomination paper. ( 8. ) HAVING heard the learned counsel for the parties and having perused the record of the case, I am inclined to set aside the impugned order and remand the case to the respondent for passing appropriate order in the light of observations so made hereinafter. ( 9. ) IN my opinion, the rejection of nomination paper by the Returning Officer on the ground of alternative remedy being available namely Election Petition in the peculiar facts of the case is not tenable. ( 9. ) IN my opinion, the rejection of nomination paper by the Returning Officer on the ground of alternative remedy being available namely Election Petition in the peculiar facts of the case is not tenable. As rightly urged by the learned counsel for the petitioner, in the facts of this case, all the nominations submitted by the four candidates including that of petitioner were rejected by the Returning Officer on one or other grounds. The effect of this rejection was that no election for Ward No. 35 could take place till date for want of any candidate in fray. In view of this peculiar position emerging from the circumstances, the right to file any Election Petition to any candidate did not arise. Sections 441, 441-A and B of the Municipal Corporation Act in clear terms provides that no election petition can be presented and admitted unless the result of election is notified in the Gazette. In other words the right to file an Election Petition to any candidate arises only when the election takes place and it is notified in the Gazette as prescribed under the Act. The bar contained in constitution under Article 246 will apply only when a right to file an Election Petition is available to petitioner and he does not avail of it. Since in this case all the nominations submitted by the candidates were rejected, by the Returning Officer, there did not arise any occasion to hold election in the ward nor any candidate got any opportunity to contest the election. When the election itself did not take place may be for any reason then in such eventuality an aggrieved can not be forced to file an election petition which itself is not tenable for want of availability of cause of action. The petitioner, therefore, had no right to file any election petition and raise the grievance of impugned rejection of his nomination paper. He could, therefore, file a writ in this Court and question the legality of the order of Returning Officer, at least in the facts of this case. ( 10. ) THE next submission of learned counsel for the petitioner was on merits. According to him, Returning Officer committed an error in his approach as also in his conclusion in rejecting the nomination paper of petitioner. ( 10. ) THE next submission of learned counsel for the petitioner was on merits. According to him, Returning Officer committed an error in his approach as also in his conclusion in rejecting the nomination paper of petitioner. Relying on the law laid down by their Lordships of Supreme Court in the case of Union of India vs. Dudh Nath Prasad ( AIR 2000 SC 525 ) learned counsel urged that impugned order deserves to be quashed. In reply, learned counsel for the State referring to and relying upon the circulars referred supra urged for the upholding of the impugned order. ( 11. ) BEFORE I come to the merits of the case, it is necessary to state the facts of Dudh Nath case (supra) and then the law laid down by the Supreme Court in that case. ( 12. ) DUDH Nath Prasad was born in State of Bihar and had his schooling till graduation in State of Bihar. However his parents had migrated from Bihar and were residing in District Howrah in State of West Bengal, for last 30 years. The parents of Dudh Nath belonged to Nuniya Community which was declared to be a Scheduled Caste community in the State of West Bengal but not in State of Bihar, where Dudh Nath had born and had his schooling throughout. Duth Nath then obtained one caste certificate from Sub-Divisional Officer, Howrah certifying that he belongs to Nuniya Community and on that basis, he was allowed to appear in the UPSC Examination. He then successfully cleared the examination and became an I. A. S. Officer. After few years the Government wrote to Dudh Nath that since he was born in Bihar, and also had his schooling in Bihar and hence he can not be regarded as a member of Scheduled Caste Community because in Bihar, the said Community is not regarded as SC Community. In other words, the complaint of Government was that certificate issued by State of West Bengal certifying Dudh Nath to belong to Nuniya Community is of no use nor it can be acted upon to confer him the recognition of belonging to Nuniya Community. In other words, the complaint of Government was that certificate issued by State of West Bengal certifying Dudh Nath to belong to Nuniya Community is of no use nor it can be acted upon to confer him the recognition of belonging to Nuniya Community. It is this action of Government that gave rise to litigation at the instance of Dudh Nath who filed an application before the Central Administrative Tribunal and sought a declaration that he belongs to Nuniya Community on the strength of certificate issued by S. D. O. , Howrah. The Tribunal having held in favour of Dudh Nath, the Government went up in appeal to Supreme Court. ( 13. ) THE question that fell for consideration before the Supreme Court amongst other was what is meaning of the word ordinarily reside as defined in Para 5 of the instructions to the candidate appearing in I. A. S. Examination read with Section 20 of the Representation of the People Act. Their Lordships examined the meaning of the word "reside" and "residence" and concluded as under in para 15:- "if the two meaning referred to above are to be read along with the word "ordinarily", it becomes clear that a person, before he can be said to be ordinarily residing at a particular place, has to have an intention to stay at that place for a considerably long time. It would not include a flying visit of a short or casual presence at that place. " ( 14. ) AFTER laying down the aforesaid legal principle then their Lordships while examining the facts as under in Para 26 :- "we have already explained the meanings of the words "ordinarily resident" and have found that notwithstanding that the warrants or the respondent lived at one time in a village of District Siwan in the State of Bihar and that they owned some property also there, they had shifted to the State of West Bengal long ago and had been living there since then. For, all intents and purposes, therefore, they be treated to be "ordinarily residing in the State of West Bengal, the President in exercise of his powers under Article 341 (1) read with Article 366 (24) had already declared "nuniya" Caste as a Scheduled Caste candidate and was rightly appointed against a Reserved vacancy, after being declared successful at the examination held by the UPSC for the Indian Administrative and Allied Services in 1960". 14-A. When I examine the facts of this case keeping in view the facts of Dudh Nath case (supra) and the law laid down therein, it clearly emerges that petitioner though the resident of Maharashtra at one time had migrated to State of Madhya Pradesh and had been living in Ujjain for last more than 30 years. This becomes clear and indeed not disputed by the respondent when one look to the certificate issued to petitioners by his employer on 19-7-70 (Annexure P-15) certifying that petitioner is in their employment for last 7 years (it means from 1963) at Ujjain. It is also not in dispute as is clear from Annexure P-1 that the persons belonging to Halba Community have been living in Ujjain District. Indeed, Annexure P-l is a document issued by State after making survey as to how many persons belonging to Halba Community are residing in various districts of State of Madhya Pradesh. It is also not in dispute that Halba Community is recognized as a SC/st Community in State of Madhya Pradesh. It is on this basis, the authority has issued a certificate in favour of petitioner (Annexure P-14) certifying that petitioner is the resident of Ujjain and belongs to Halba Community. ( 15. ) IN view of aforesaid undisputed factual scenario and the law laid down by Supreme Court in Dudh Nath case (supra), one can easily conclude that if a person is living in State of M. P. for a quite long time though not born in State of M. P. yet on his proving that he belongs to a particular caste, he is entitled to get the benefit. In other words, there is no bar for such person to prove that he belong to a particular caste. The only requirement is that he must be able to tender prove before the authority concern in support of his case that he belongs to a particular caste. ( 16. In other words, there is no bar for such person to prove that he belong to a particular caste. The only requirement is that he must be able to tender prove before the authority concern in support of his case that he belongs to a particular caste. ( 16. ) AS I have observed supra in the present case, the authority concern was satisfied that the petitioner belonged to Halba Community and hence issued the certificate. None has challenged the correctness of the certificate on any ground. ( 17. ) IN view of aforesaid discussion, the impugned order dated 6-2-2001 (Annexure P-12) passed by the respondent is not sustainable and hence deserves to be quashed. It is accordingly quashed by Writ of Certiorari. The petition thus succeed and is allowed. This Court has no option but to remand the case to respondent to reconsider the case of petitioner in the light of observations made supra and then after taking into account all other relevant facts necessary for considering whether to accept the nomination or not pass appropriate orders. No costs.