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2010 DIGILAW 134 (ORI)

JOHARLAL MAHALI v. SUSHIL KUMAR KINDO

2010-03-03

R.N.BISWAL

body2010
JUDGMENT : R.N. Biswal, J. - The petitioner has challenged the judgment and orders dated 15.04.2009 passed by the learned District Judge, Sundargarh in F.A.O. No. 9 of 2008, confirming the judgment and orders dated 31.03.2008 passed by the learned Civil Judge (Senior Division), Rourkela in Election Petition No. 24 of 2007, allowing the election petition and declaring the election of the returned candidate as void and further declaring that the election petitioner was duly elected as Chairman of Bisra Panchayat Samiti. 2. The petitioner was opposite party No. 3 and the opposite No. 1 was the election petitioner before the Civil Judge (Senior Division), Rourkela in the aforesaid election petition. As per the case of election petitioner, Bisra Block is divided into two segments-Bisra 'Ka' and Bisra-'Kha'. Election for Panchayat Samiti members in respect of Bisra-'Ka' and Bisra-'Kha' was held on 17.2.2007 and 19.2.2007 respectively. The petitioner and opposite party No. 3 were elected as Samiti Member from Jhirapani Gram Panchayat under Bisra-'Kh' segment and Kapatmunda Gram Panchayat under Bisra-'Kha' segment respectively. Pursuant to the notification No. 548 dated 25.7.2007, the petitioner and opposite party No. 3 filed their respective nominations for election to the office of Chairman of Bisra Panchayat Samiti. As per the notification No. 579 dated 10.5.2006 of the Collector Sundargarh, the office of Chairman of the said Panchayat Samiti was reserved for Scheduled Tribe candidates. The election was held on 11.3.2007 and as opposite party No. 3 secured highest number of votes, was declared elected to the office of Chairman on the same date. 3. According to the election petitioner, opposite party No. 3 is Tury by caste which comes under Scheduled Caste category but he falsely declared that he is Mahali by caste and as such belongs to Scheduled Tribe. So, the election petitioner filed the aforesaid election petition to declare the election of opposite party No. 3 as void and further to declare him to have been duly elected to the office of Chairman of Bisra Panchayat Samiti. The Block Development Officer, Bisra Block and Sub-Collector, Panposh (Opposite party No. 1 and 2 respectively) in their joint show cause contended that the election was conducted as per law and opposite party No. 3 having secured the highest number of votes was rightly elected to the office of Chairman, Bisra Panchayat Samiti. The Block Development Officer, Bisra Block and Sub-Collector, Panposh (Opposite party No. 1 and 2 respectively) in their joint show cause contended that the election was conducted as per law and opposite party No. 3 having secured the highest number of votes was rightly elected to the office of Chairman, Bisra Panchayat Samiti. Opposite party No. 3 in his show cause averred that he comes under Scheduled Tribe for which there was no objection from any quarter while he filed the nomination for election to the office of Chairman and prayed to dismiss the election petition. 4. On the basis of above pleadings of the parties, the learned Civil Judge (Senior Division), Rourkela framed five issues. To prove his case, the petitioner examined five witnesses, including himself as P.W.1 as against 12 witnesses examined by opposite party No. 3. Both of them also filed some documents to prove their respective cases. After assessing the evidence on record, the learned Civil Judge (Senior Division) Rourkela held that opposite party No. 3 is Tury by caste which comes under Scheduled Caste. The office of Chairman having been reserved for Scheduled Tribe candidates, his election to the said office was void and since their were only two candidates in the election fray the Election Tribunal declared the election petitioner to have been duly elected to the said office. 5. Being aggrieved with the said judgment and orders, opposite party No. 3 preferred F.A.O. 9 of 2008 before the District Judge, Sundargarh. After hearing the counsel for the parties, the learned District Judge dismissed the appeal and confirmed the judgment and orders passed by the learned Civil Judge (Senior Division), Rourkela. 6. The defeated appellant has preferred the present writ petition. Learned counsel appearing for the petitioner submitted that without properly scanning the evidence on record, the learned Civil Judge (Senior Division), Rourkela held that the petitioner belongs to Tury caste which comes under Scheduled Caste category, but the evidence on record shows that the petitioner is Mahali by caste and as such belongs to Scheduled Tribe. Learned District Judge, Sundargarh without going deep into the matter and critically examining the evidence, dismissed the appeal and confirmed the judgment and order of the election tribunal. In fact he has not at all touched Exts. K and L, the caste certificates granted by the local M.P. and Sarpanch in favour of the petitioner. Learned District Judge, Sundargarh without going deep into the matter and critically examining the evidence, dismissed the appeal and confirmed the judgment and order of the election tribunal. In fact he has not at all touched Exts. K and L, the caste certificates granted by the local M.P. and Sarpanch in favour of the petitioner. So, learned counsel for the petitioner prayed to allow the writ petition. On the contrary, learned counsel for opposite party No. 1 (election petitioner) contended that the trial Court rightly held that the present petitioner belongs to Mahali caste which comes under Scheduled Caste category and accordingly declared his election void and declared opposite party No. 1 to have been duly elected. 7. Now the only point to be decided in this writ petition is whether both the trial Court and appellate Court committed gross illegality and perversity in holding that the petitioner is not Mahali by caste and as such does not come under Scheduled Tribe category. 8 It is found from the evidence of P.W.1 that opposite party No. 3 was reading in Bisra High School, Bisra, which was corroborated by the evidence of P.Ws.2, 3 and 5. Ext.2/a the certified Xerox copy of the admission register of the year 1989-90 of Bisra High School issued by the Public Information Officer-B.D.O., Bisra, which was exhibited without objection, shows that Jaharlal Tury (present petitioner) son of Baha Tury of Kapatmunda under Bisra P.S. was a student of Bisra High School. Ext.2/b the Xerox copy of stipend register of schedule caste and schedule tribe maintained by Headmaster, Bisra High School, reveals that Jaharlal Tury belongs to Scheduled Caste category. Ext.2/ c, the copy of the transfer certificate issued by the Head Master, Bisra High School to Jaharlal Tury who received the original of the same on 6.1.1999 by putting his signature as Jaharlal Tury. As found from Ext.2/d Soma Tury son of Baha Tury of Kapatmunda (brother of the present petitioner) was appointed as Education Volunteer for E.G.S. Location Mahat-Tola. Ext-4 the R.O.R. shows that Sufal Tury, Baha Tury (father of present petitioner), Sahan Tury, Shiba Tury, all sons of Kartik Tury of village Kapatmunda are Tury by caste. Ext. D, the certified copy of R.O.R. of Khata No. 22 of mouza-Barabans, filed by the opposite party No. 3 (present petitioner) reveals Mahali belongs to mahali by caste. Ext-4 the R.O.R. shows that Sufal Tury, Baha Tury (father of present petitioner), Sahan Tury, Shiba Tury, all sons of Kartik Tury of village Kapatmunda are Tury by caste. Ext. D, the certified copy of R.O.R. of Khata No. 22 of mouza-Barabans, filed by the opposite party No. 3 (present petitioner) reveals Mahali belongs to mahali by caste. Ext.E, the R.O.R. in respect of Khata No. 47 of mouza-Kapatmunda reveals that it stands in the name of Parsuram Tury s/o. Jibanlal Tury, Saharai Tury, Tulasi Tury, Budhuram Tury, Sukhamani Tury and others and all of them are Mahali by caste. Similarly, the certified copy of R.O.R. of Khata No. 87 of mouza Bangarkela shows that it stands in the name of Samara Mahali son of Lapara Mahali of mouza Bangarkela and all of them are Mahali by caste. The trial Court held that the documentary evidence adduced on behalf of opposite party No. 3 the present petitioner, show that some members having Tury title belong to Mahali caste and some others having Mohali title are Mahali by caste. Learned trial Court did not rightly take Exts. K and L, the caste certificates issued by the local M.P. and Sarpanch showing that the writ petitioner belongs to Schedule Tribal into consideration as they were not competent to issue such caste certificates. They are only recommendatory authorities. They can recommend to the competent authority for issue of caste certificates to the persons belonging to Scheduled Caste and Scheduled Tribes as envisaged under Rule-7 of the Orissa Caste Certificates (Scheduled Caste and Scheduled Tribes) Rules, 1980. Even if the appellate Court did not discuss about these two documents, it would not affect the result of its judgment. The appeal is not required to be remanded to the trial Court on that ground alone. It transpires from the evidence of O.P.W.1, the nephew of the present petitioner that he belongs to Harijan category. So, the learned trial Court after assessing the evidence on record, rightly held that the present petitioner belongs to Scheduled Caste and the office of Chairman of Bisra Panchayat Samiti having been reserved for Scheduled Tribe candidates rightly declared the election of the present petitioner as void and since there were only two candidates in the election fray, he also rightly declared the other candidate i.e., opposite party No. 1 to have been duly elected to the said office. The appellate Court rightly confirmed the judgment and order of the trial Court. 9. So, I do not find any illegality, impropriety or perversity in the judgment of the appellate Court, confirming the judgment of the Election Tribunal, to be interfered with by this Court in writ jurisdiction and as such the writ petition stands dismissed. No cost. Final Result : Dismissed