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2010 DIGILAW 303 (ORI)

Gauranga Naik v. Collector, Sambalpur

2010-04-27

R.N.BISWAL

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JUDGMENT R.N. BISWAL, J. — The office of Sarpanch of Kulundi Gram Panchayat was reserved for candidates belonging to Scheduled Tribe Community. As per the writ petition, petitioner being Gond by caste, belongs to Scheduled Tribe. He along with opp. party nos. 3 and 4 contested the election held on 15.2.2007 for the said office, wherein he won the election and was declared elect¬ed. The said election was challenged by opp. party no.3 in Elec¬tion Misc. case No.3 of 2007 before the Court of learned Civil Judge (Junior Division) Kuchinda, mainly on the ground that the returned candidate belongs to Nakasia caste, which does not come under the Scheduled Tribe category, but by influencing the Addl. Tahsildar, Kuchinda, he could manage to obtain a caste certifi¬cate showing his caste as Nagesia, which is recognized as Sched¬uled Tribe in the State of Orissa. The petitioner in his show cause before the learned Civil Judge (Junior Division) Kuchinda flatly denied the averment that he is Nakasia by caste. It is his specific case that he belongs to Nagesia caste, which comes under the Scheduled Tribe category, and, accordingly, caste certificate was issued in his favour showing him as a member of Schedule Tribe Community. 2. On the basis of the pleadings of the parties 5 issues were framed. To establish his case, the writ petitioner examined 2 witnesses including himself as O.P.W. No.1, while the present O.P.No.3 examined himself alone as P.W.1. Besides adducing oral evidence, the writ petitioner filed two Record of Rights vide Exts. 1 and 2 and opp. party No.3 filed the caste certificate issued by the Addl. Tahasildar, Kuchinda marked as Ext.A. After assessing the evidence, both oral and documentary, learned Civil Judge (Jr. Division) Kuchinda held that Ext.A was issued under the Orissa Caste Certificates (for Scheduled Caste & Scheduled Tribe) Rules, 1980 (hereinafter referred to as ‘the Rules’), Rule 4 of which prescribes the procedures to be adhered to before issuing a caste certificate by the competent authority. So under Section 114 of the Indian Evidence Act, it can be presumed that the competent authority issued the caste certificate in favour of the petitioner on due compliance of the procedure. Exts. So under Section 114 of the Indian Evidence Act, it can be presumed that the competent authority issued the caste certificate in favour of the petitioner on due compliance of the procedure. Exts. 1 and 2, the Records of Right, even though show that the petitioner be¬longs to Nakasia caste cannot conclusively prove that he is a member of Scheduled Tribe and accordingly dismissed the Election Misc.case vide judgment and order dated 29.9.2007. 3. Being aggrieved with the said judgment and order, the election petitioner (present opp. party no.3) preferred Misc. Election appeal no.6/1 of 2007-08 before the Addl. District Judge, Kuchinda. After hearing learned counsel for the parties, learned Addl. District Judge, Kuchinda held that Exts. 1 and 2, the Records of Right have strong evidentiary value. A duty is cast under Rule 5 of the Rules upon the competent authority to base his verification with regard to caste of a person on the basis of revenue record. Ignoring such entry in the Records of Right vide Exts. 1 and 2 and without support of any substantial material to that effect, the Addl. Tahasildar, Kuchinda issued the caste certificate under Ext.A in favour of the returned candi¬date (the petitioner). So, the order passed by learned Addl. Civil Judge (Jr. Division) was set aside by the appellate Court vide its judgment and order dated 20.1.2009. The returned candi¬date has filed the present writ petition challenging the said judgment and order of the appellate Court. 4. Learned counsel appearing for the writ petitioner submits that as per Ext.A, the caste certificate issued by the Addl. Tahasildar, Kuchinda, the petitioner is Nagesia by caste, which comes under Scheduled Tribe. The said caste certificate having not been cancelled, the appellate Court ought not to have ignored it. Moreover, the competent authority after making proper enquiry and following due procedure as provided in the Rules issued the caste certificate in favour of the petitioner. Learned Addl. District Judge, Kuchinda while deciding the election appeal ought not to have gone into the question of validity or otherwise of the caste certificate, Ext.A. Law is well settled that the contents of the Records of Right bear a presumptive value but the presumption is rebuttable. In other words, the contents of the Record of Rights are presumed to be correct unless and until the same is rebutted. In other words, the contents of the Record of Rights are presumed to be correct unless and until the same is rebutted. In the case at hand, the caste certificate has overriding effect on the Record of Rights under Exts. 1 and 2. Accordingly, learned counsel for the petitioner submits that the writ petition should be allowed, the judgment of the appellate Court should be set aside and the judgment and order of the learned Civil Judge (Jr. Division) Kuchinda should be upheld. 5. On the contrary, learned counsel appearing for opp. party no.3 submits that the caste certificate issued by the Addl. Tahasildar cannot be said to have over-riding effect on Exts.1 and 2. In support of his submission, he relied on the decision in the case of Desh Raj Vs. Bodh Raj, AIR 2008 Supreme Court, 632. He further submits that the caste of the petitioner must be within the special knowledge of his parents, but neither of them having been examined an adverse inference can be drawn against the claim of the petitioner. In support of his submission, learned counsel for opp. party relies on the decision Punit Rai vs. Dinesh Chaudhary, AIR 2003 Supreme Court, 4355. He further submits that only because the caste certificate issued by the Addl. Tahasildar, Kuchinda has not been cancelled by the appro¬priate authority, it cannot be said that the appellate Court would not have ignored it on the teeth of the revenue records like Exts. 1 and 2. So, the appellate Court has rightly held that petitioner does not belong to Scheduled Tribe and allowed the appeal. 6. In view of the rival submission of learned counsel for the parties, the points to be considered are whether the peti¬tioner is Nakasia or Nagesia by caste and whether without cancel¬lation of the caste certificate issued by the Addl. Tahasildar, Kuchinda vide Ext.A, the appellate Court ought not have ignored it. 7. Exts. 1 and 2, the Major Settlement Records of Right show that the petitioner is Nakasia by caste. Admittedly, the caste Nakasia does not come under Scheduled Tribe category. On the other hand, as per Ext.A, the certificate issued by the Addl. Tahasildar, Kuchinda, the petitioner belongs to Scheduled Tribe, his caste being Nagesia. Rule-4 of the Orissa Caste Certificate (for Scheduled Caste and Scheduled Tribe) Rules, 1980 stipulates that after due verification the caste certificate should be issued. On the other hand, as per Ext.A, the certificate issued by the Addl. Tahasildar, Kuchinda, the petitioner belongs to Scheduled Tribe, his caste being Nagesia. Rule-4 of the Orissa Caste Certificate (for Scheduled Caste and Scheduled Tribe) Rules, 1980 stipulates that after due verification the caste certificate should be issued. To ascertain caste of a person the revenue record plays a vital rule. In the present case, as it appears, the Addl. Taha¬sildar has not verified the Records of Right standing in the name of the petitioner or his ancestors. When Exts. 1 and 2 clearly show that the petitioner belongs to Nakasia caste, the Addl. Tahasildar should not have ignored the same. In the decision Desh Raj (supra) it has been held by the apex Court that after the initial burden of proof is discharged showing that the returned candidate does not belong to Scheduled caste, burden lies with the returned candidate to prove that he belongs to that caste. In the case at hand, when the initial burden that the returned candidate does not belong to Nagesia caste is discharged by the opp. party No.3 by proving the same through Exts. 1 and 2 (Re¬cords of Right) the returned candidate ought to have proved that he belongs to Scheduled Tribe. But except Ext.A, there is no adequate evidence to show that he belongs to Nagesia caste, which comes under Scheduled Tribe category. It has also been observed in the decision Desh Raj (supra) that if the school records in respect of a person show a particular caste, the caste certificate issued to such person by the Executive Magistrate showing a different caste, should be ignored. So, the submission of learned counsel for the writ petitioner that without cancella¬tion of the caste certificate, Ext.A issued by the Addl. Tahasil¬dar, Kuchinda, the appellate Court ought not to have ignored it, cannot stand. In the decision Punit Rai (supra) it has been held: “A person in fact not belonging to Scheduled Caste, if claims himself to be a member thereof by procuring a bogus caste certificate, would be committing fraud on Constitution.” 8. Accordingly, the writ petition stands dismissed and the judgment and order of the appellate Court is hereby confirmed. Petition dismissed.