ORAL ORDER 1. Heard learned counsel for the petitioner and learned counsels for the respondent State Election Commission, for the State and for private respondent No.7. 2. The petitioner seeks quashing of the order dated 31.10.2012 passed by the State Election Commissioner in Case No. 129 of 2011 by which he has declared the petitioner as disqualified under Sections 135, 136(2) of the Bihar Panchayat Raj Act, 2006, read with Rule 117 of the Bihar Panchayat Election Rules and has further held that the post shall be treated as vacant and steps shall be taken to fill it up. 3. The petitioner claims to be Momin by caste and a member of the Extremely Backward Class for which he was issued Extremely Backward Class Certificate dated 19.2.2010 by the District Magistrate, Banka on the basis of the report of the Sub-Divisional Officer, Banka. The petitioner contested the election on the post of Mukhiya of Gram Panchayat Kath Bangaon which was a reserved seat for the members of Extremely Backward Class. Subsequently the petitioner was declared elected defeating the respondent No.7 in the said election. The respondent No.7 filed a complaint under Section 136(2) of the Bihar Panchayat Raj Act, 2006 with a prayer to disqualify the petitioner from holding the post of Mukhiya on the ground that the post was reserved for the members of Extremely Backward Class to which the petitioner does not belong since he is “Sheikh” by caste. In support of the same a Cadastral Survey Khatian in the name of the great grandfather of the petitioner was produced in which the caste of the great grandfather was mentioned as “Sheikh”. The District Magistrate, Banka was directed by the State Election Commissioner to make an enquiry and submit a report regarding the caste of the petitioner. The report of the District Magistrate dated 19.12.2011 was submitted to the State Election Commissioner. Both the petitioner and the respondent No.7 were heard by the District Magistrate and only thereafter the report was prepared. The District Magistrate, Banka was directed by the State Election Commissioner to make an enquiry and submit a report regarding the caste of the petitioner. The report of the District Magistrate dated 19.12.2011 was submitted to the State Election Commissioner. Both the petitioner and the respondent No.7 were heard by the District Magistrate and only thereafter the report was prepared. The said report of the District Magistrate came to the conclusion that the caste of the great grandfather of the petitioner mentioned in the Cadastral Survey Khatian as “Sheikh” which is not included in the Extremely Backward Class (Annexure-1) by the Government of Bihar since as per Serial 94 of the same only “Momin (Muslim) (Julaha and Ansari)” has been mentioned and the caste “Sheikh” is not mentioned therein, from which it was clear that in the list of Extremely Backward Class (Annexure-1) notified by the State Government the Sheikh caste was not included. Aggrieved by the said report, copy of which was sent to the petitioner also, the petitioner approached this Court by filing CWJC No.2747 of 2012 and in the said writ application the further proceeding of Case No. 129 of 2011 pending before the State Election Commissioner was stayed. However, ultimately on 9.10.2012 after some argument learned counsel for the petitioner chose to withdraw the writ application with liberty to raise the contentions raised in the said writ application before the State Election Commission against the enquiry report of the District Magistrate and by order dated 9.10.2012 the writ application was disposed of by this Court with the leave aforesaid. Thereafter again on hearing learned counsels for the petitioner and respondent No.7 and after considering the report dated 19.12.2011 of the District Magistrate-cum-District Election Officer (Panchayat), Banka by the impugned order dated 31.10.2012 the Commission referred to its earlier order dated 12.4.2012 passed in the said case in which it was stated on the basis of the said report of the District Magistrate that the petitioner earned the disqualification for being disqualified from the post of Mukhiya. The Commission also referred in detail to the report of the District Magistrate and the conclusions that had been drawn therein quoting the main part in the said order dated 31.10.2012 and thereafter disqualified the petitioner from the post of Mukhiya. Aggrieved by the said order the petitioner has come to this Court. 4. The Commission also referred in detail to the report of the District Magistrate and the conclusions that had been drawn therein quoting the main part in the said order dated 31.10.2012 and thereafter disqualified the petitioner from the post of Mukhiya. Aggrieved by the said order the petitioner has come to this Court. 4. Learned counsel for the petitioner submits that Sections 137, 138(2) and 139 of the Bihar Panchayat Raj Act, 2006 are special provisions laying down that no election of any Panchayat shall be called in question except by an election petition presented to an election authority under the Act and further specifically mentioning as one of the grounds for declaring the election of the returned candidate as void as that on the date of his election a returned candidate was not qualified or was disqualified to be chosen as a member under the Act, which according to learned counsel read with the proviso to Section 136(2) which lays down that the State Election Commission shall not be entitled to entertain such complaint which is subject matter of purely election dispute, would override Section 136(2) under which the question of disqualification is to be referred for decision of the State Election Commissioner. It is urged by learned counsel that Section 137 of the Act is a special provision to set aside the election and it would prevail over any general provision like Section 136 which being a general provision must accordingly be read down. In support of the same learned counsel relies upon a decision of the Supreme Court in the case of J.K.Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh and others : AIR 1961 SC 1170 , in paragraphs 9 & 10 of which it has been held as follows : “9. There will be complete harmony however if we hold instead that Cl.5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. There will be complete harmony however if we hold instead that Cl.5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206, 6th Edition) Romilly, M.R., mentioned the rule thus :- “The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.” The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon, 1858 28 LJ Ch 598, Churchill v. Crease, (1828) 5 Bind 177, United States v. Chase, (1889) 135 US 255 and Carroll v. Greenwich Ins. Co., (1905) 199 U.S. 401. 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that Cl. 5(a) has no application in a case where the specific provisions of Cl. 5(a) has no application in a case where the specific provisions of Cl. 23 are applicable." It is further submitted by learned counsel that the State Election Commission cannot go itself into the issue of deciding the caste of a person in view of the decision of the Supreme Court in the case of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development and others : (1994) 6 SCC 241 in which procedure for verifying the caste certificates has been laid down by directing the appointment of Scrutiny Committee for the said purpose. It is submitted that the said guidelines are still effective as laid down by the Apex Court in the case of Anand vs. Committee for Scrutiny & Verification of Tribe Claims & Ors. : AIR 2012 SC 314 , in paragraph-15 of which it has been held as follows : “15. Again in Director of Tribal Welfare, Government of A.P. v. Laveti Giri & Anr., while reiterating the guidelines laid down in Kumari Madhuri Patil (supra), this Court observed that it was high time that the Government of India should have the matter examined in greater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and corner the benefits reserved for the real tribals, etc., so that the menace of fabricating records to gain unconstitutional advantages could be prevented.” 6. It is thus submitted by learned counsel that it was not open to the State Election Commission to have itself gone into the question of deciding the caste of the petitioner or directing the District Magistrate-cum-District Election Officer to examine the same rather than sending it before the Scrutiny Committee and thereafter abiding by the decision of the Scrutiny Committee. 7. In support of his stand that the Election Commission has no authority to interfere in the matter of disqualification which exists from before the election learned counsel further relies upon three decisions of this Court in the case of Sri Bhagwan Singh & Ors. vs. The State of Bihar & Ors. : 2004(4) PLJR 482, in the case of Kahkashan Parveen vs. The State of Bihar & Ors.: 2007(1) PLJR 616 and in the case of Kiran Kumari @ Kiran Devi vs. The State of Bihar & Ors. : 2007(4) PLJR 442 . vs. The State of Bihar & Ors. : 2004(4) PLJR 482, in the case of Kahkashan Parveen vs. The State of Bihar & Ors.: 2007(1) PLJR 616 and in the case of Kiran Kumari @ Kiran Devi vs. The State of Bihar & Ors. : 2007(4) PLJR 442 . The said decisions, however, were rendered before amendment of Section 136(2) of the Bihar Panchayat Raj Act, 2006 by the Bihar Panchayat Raj (Amendment) Act, 2009 which has brought about substantial changes in the said provision and making otiose the decisions rendered before the said amendment on the basis of the provisions as they existed earlier either in the Act of 2006 or under the Bihar Panchayat Raj Act, 1993. 8. The next submission of learned counsel for the petitioner is that even if the Election Commission can declare a candidate as disqualified under the provisions of Section 136(2) of the Act but it cannot thereafter set aside the election and declare the post as vacant. It is submitted that the Election Commission cannot exercise the adjudicatory function of setting aside the election and thus the impugned order dated 31.10.2012 setting aside the election of the petitioner and declaring the post vacant is bad on that count also. 9. The further contention of learned counsel for the petitioner is that under Section 136(2) of the Act it is the Commission which has to determine the issue of qualification or disqualification and it has to do so by taking a decision on its own wisdom and it cannot be permitted to follow the wisdom of either superiors or subordinates. It is submitted that the State Election Commission has exceeded its jurisdiction in the matter by relying on the report of the District Magistrate without applying its own mind. In support of the same learned counsel relies upon a decision of the Apex Court in the case of Manohar Lal vs. Ugrasen & Ors. (2010) 11 SCC 557 , in paragraph 23 of which it has been held as follows : “23. Therefore, the law on the question can be summarized to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. Therefore, the law on the question can be summarized to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.” Learned counsel for the State Election Commission, on the other hand, submits that the authority of the State Election Commission to consider the question of any disqualification before the election or even after election cannot be restricted by anything that is stated by Sections 137, 138(2) and 139(1)(a) of Panchayat Raj Act. It is submitted by learned counsel that both these special provisions in no manner restrict one or the other and where disqualification is of a period prior to the election it is open to the party to elect one of the remedies. 11. It is pointed out by learned counsel that Section 123(3) and Section 125(2) of the Panchayat Raj Act clearly provide that the State Government is to make available to the State Election Commission such officers and staff as may be necessary for discharge of functions and the District Magistrate has been specifically designated and nominated as the District Election Officer (Panchayat) for each district with the provision to act under the supervision of the State Election Commission. It is submitted by learned counsel that in terms of Section 243D(6) of the Constitution of India the State Legislature has power to make reservation of seats in the Panchayats in favour of backward class of citizens pursuant to which under Section 135 of the Act it has been provided that in the case of seats reserved for Scheduled Castes or Scheduled Tribes or Backward Classes or Women, no person who is not a member of any of such Caste, Tribe or Class shall be qualified to be elected to such seat. 12. 12. It is further pointed out that it is clearly mentioned in the amended Section 136(2) that if any question arises as to whether a Member of a Panchayat at any level or Mukhiya of Gram Panchayat was before election or has become after election subject to any of the disqualifications mentioned in Section 135(1) and Section 136 of the Act, the question shall be referred to the decision of the State Election Commissioner. It is thus urged by learned counsel that the question of disqualification under Section 135 has now after the amendment been specifically brought within the purview of decision of the State Election Commissioner even where such disqualification existed before election and thus it is not open to assail the power of the State Election Commissioner to decide such a question. It is submitted that the proviso to Section 136(2) cannot be so read as to completely obliterate what has been provided by the Legislature under the main part of Section 136(2) and the effect of the proviso is to exclude only such complaint or petition, the subject matter of which is purely an election dispute such as corrupt practice, wrongful rejection of nomination, etc. in accordance with Article 243-O of the Constitution of India read with Section 137 of the Act. It is submitted that the question of decision on disqualification is ousted in terms of the proviso only where the dispute is a purely election dispute which has been described in the proviso itself. It is urged that the existence of the word “etc.” after the words “corrupt practice, wrongful rejection of nomination” has to be read ejusdem generis and cannot be used to cover every type of election dispute. In support of the same he relies upon a decision of the Privy Council in the case of Quebec Railway, Light, Heat and Power Company Limited vs. Vandry and Others : AIR 1920 Privy Council, 181, at page 186 in the right hand column of which it has been held as follows : “Secondly there is no reason why the usual rule should not apply to this as to other statutes namely that effect must be given if possible to all the words used, for the Legislature is deemed not to waste its words or to say anything in vain.” 13. The said observations of the Privy Council have been quoted with approval by the Supreme Court and the said proposition has been reiterated in the Constitution Bench decision in the case of Aswini Kumar Ghose and another vs. Arabinda Bose and another : AIR 1952 SC 369 , in paragraph-26 in the following terms : “26. Much ado was made on both sides about the comma occurring just before the word “or” in the non obstante clause, the petitioner stressing its importance as showing that the adjectival clause “regulating the conditions etc.” does not qualify the words “Indian Bar Councils Act” which are separated by the comma and that, therefore, the whole of that Act is superseded, while learned counsel for the respondents insisted that in construing a statute punctuation marks should be left out of consideration. Nothing much, we think, turns on the comma, as it seems grammatically more correct to take the adjectival clause as qualifying “law”. Having regard to the words “anything contained” and the preposition “in” used after the disjunctive “or,” the qualifying clause cannot reach back to the words “Bar Councils Act.” But, whichever way we take it, it must be admitted that, in framing the non obstante clause, the draftsman had primarily in mind those provisions which stood in the way of an Advocate not enrolled in any particular High Court practicing in that Court. It does not, however, necessarily follow that s.2 is concerned only with the right of Advocates of the Supreme Court to practice in the High Courts in which they are not enrolled. The true scope of the enacting clause must, as we have observed, be determined on a fair reading of the words used in their natural and ordinary meaning, and in the present case, there is not much room for doubt on the point. The words “every Advocate” and “whether or not he is an Advocate of that High Court” make it plain that the section was designed to apply to the Advocates of the Supreme Court not only in relation to the High Courts of which they are not Advocates but also in relation to those High Courts in which they have been already enrolled. The learned Judges below dismissed the words “whether or not etc.” with the remark that “they are not very apposite,” as “no one who is an Advocate of a particular High Court requires to be an Advocate of the Supreme Court in order to practice in that Court.”. While it may be true to say that s.2 does not give Advocates of many of the High Courts any additional right in relation to their own Courts, it would, according to the petitioner’s contention, give at least to the Advocates of the Calcutta and Bombay High Courts some additional right in the Original Side of those Courts, and that may well have been the purpose of using those words. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.” 14. The aforesaid decision has been quoted with approval by the Constitution Bench of the Apex Court in the case of Union of India and another vs. Hansoli Devi and others; (2002) 7 SCC 273 , in the relevant part of paragraph-9 of which it has been held as follows : “9. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of a statute. The rule stated by Tindal, C.J. in Sussex Peerage case still holds the field. The aforesaid rule is to the effect: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.” It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. In Kirkness v. John Hudson & Co. Ltd. Lord Reid pointed out as to what is the meaning of “ambiguous” and held that : “A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning.” It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat & Power Co. Ltd. V. Vandry it had been observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons……” 15. Learned counsel further submits that so far as the Scrutiny Committee, as per the guidelines of the Apex Court in the case of Kumari Madhuri Patil is concerned, it would be evident from the reading of the said decision as also the subsequent decisions that have followed it that the said principles are confined with respect to verification of certificates only of Scheduled Castes and Scheduled Tribes, that too, for the purpose of admission to educational seats and appointments and have no application in the case of elections. Learned counsel submits that in the case of Anand (supra) relied upon by learned counsel for the petitioner it has been clearly mentioned that while dealing with the documentary evidence, greater reliance must be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. Learned counsel submits that in the case of Anand (supra) relied upon by learned counsel for the petitioner it has been clearly mentioned that while dealing with the documentary evidence, greater reliance must be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. It is thus submitted that the document of 1905 upon which the State Election Commissioner has relied clearly mentioned the caste of the great grandfather of the petitioner as “Sheikh” which is definitely more reliable than the khatian of the year 2011 produced by the petitioner which has mentioned the caste of the petitioner as also his close relations as the members of Extremely Backward Class. 16. Learned counsel also submits that the petitioner has not challenged the order of the District Magistrate dated 19.12.2011 and thus no relief can be granted to the petitioner. 17. It is also urged by learned counsel that no material has been placed by the petitioner on the record to show that the findings of the District Magistrate which have been accepted by the State Election Commissioner are perverse. 18. Learned counsel also assails the reliance by the petitioner on the Notification issued by the State of Jharkhand recently including “Sheikh” in Serial 94 of Annexure-1 of the other backward classes stating that the same can in no way benefit the petitioner. In support of the same learned counsel relies upon a decision of the Apex Court in the case of Nityanand Sharma and another vs. State of Bihar and others : AIR 1996 SC 2306 , in paragraph 14 of which it has been held as follows : “14. It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, “Scheduled Tribes” defined under Article 366(25) as substituted under the Act, and the Second Schedule thereunder are conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, “Scheduled Tribes” defined under Article 366(25) as substituted under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was in fact, included in the concerned Schedule, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe.” 19. Learned counsel for the respondent No.7 has adopted the submissions of learned counsel for the State Election Commission. 20. I have considered the rival submissions of learned counsels for the parties. The first issue to be considered is as to whether after the amendment to Section 136(2) brought about by the 2009 Amendment Act the State Election Commissioner has the power to enter into the issue of disqualification of a person where such disqualification exists from a date prior to the election. Section 136(2) of the Act after the amendment in 2009 is as follows : “If any question arises as to whether Member of Panchayat at any level including Mukhiya of Gram Panchayat, Pramukh of Panchayat Samiti or Adhyaksh of Zila Parishad or Sarpanch of Gram Kutchahry or Panch of Gram Kutchahry was disqualified before election or has incurred disqualification after election as provided in Article 243-F of Constitution of India and subject to any disqualifications mentioned in Section 135 or sub-section (1) of Section 136, the question shall be referred for the decision of State Election Commissioner. The matter of disqualification before or after election may be brought to the notice of State Election Commission in the form of complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such disqualification and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard: Provided that the State Election Commission shall not be entitled to entertain any complaint or petition subject matter of which is purely an election dispute such as corrupt practice, wrongful rejection of nomination etc. in accordance with Article 243-O of the Constitution of India read with Section 137 of the Act”. 21. Since in the present case there is no challenge to the vires of any of the provisions of the Bihar Panchayat Raj Act including the above- mentioned amendment the matter has to be considered with reference to different provisions of the Act. In this regard the principle that the legislature is deemed not to waste its words has to be kept in mind and therefore effect must be given if possible to all the words used in the different provisions of Panchayat Raj Act. 22. The further principle to be considered is the circumstances which led to the enactment of the said provision. The said change appears to have been enacted consequent upon a decision of a Division Bench of this Court in the case of The State Election Commission & Ors. Vs. Punam Kumari & Anr. : 2009(2) PLJR 189 , in paragraphs 8, 9 & 10 of which it has been held as follows: “8. The disqualifications mentioned in Section 136 are specific and do not cover the disqualification mentioned in Section 135. If a Forum does not possess the power to decide a disqualification it cannot be directed to decide the same. In the instant case, the State Legislature has decided that disqualification matters should be decided by two Forums. As regards a type of disqualification a Forum has been selected and for other types of disqualifications another. Such Forums being available and the same having been established on the basis of a Constitutional mandate the judgment of the Hon’ble Supreme Court in K.Venkatachalam (supra) has no application as there is provisions for taking recourse for appropriate relief and, accordingly, it must be construed that the court under Article 226 of the Constitution would not at the threshold go into that question. 9. That being the situation, it appears to us that if disqualification as on the date of election based on the allegation that the person seeking election or having been elected was not a member of the community for whom the reservation was made, is the dispute, the same can only be sorted out by the election petition to be presented before the Election Tribunal and not by presenting a writ petition. 10. 10. As noted above, on the basis of the judgment and order under appeal the matter has been gone in by the Commission and the Commission has rendered a decision. The question is whether the decision is valid or not. For what we have discussed above it appears to us that the disqualification mentioned in Section 135 of the Act cannot be gone in by the Commission. The Commission being a creature of the Statute can function and discharge its duties within the four corners of the Statute and cannot assume or be vested with any power which has not been vested in it by the Statute. If the Commission had no authority to go into the question, as was decided by it, such authority could not be vested in it by exercising power under Article 226 of the Constitution of India, for the simple reason that the Article 226 authorizes the Court to uphold legal right of a citizen which right stands vested in the citizen and that signifies that the writ court cannot vest any right in a citizen which does not vest in him. That being the situation, the conclusion would be that the decision of Election Commission rendered on the basis of the command of the writ court being a decision rendered by a Forum non-juris, the same is invalid.” 23. Since in Section 136(2) as it originally existed there was no specific provision for the State Election Commissioner to enter into a question of disqualification under Section 135 of the Act as was noticed and laid down in the above decision, the said provision was specifically introduced by the Amendment Act of 2009. The intent of the Legislature is clear that in case of disqualification under Section 135 which by its very nature would be a disqualification inhering in a candidate and therefore in existence even before the election, such question would be referred for the decision of the State Election Commissioner. The question would be as to what would be the effect of Section 139(1)(a) of the Act, which is in the following terms : “139(1)(a). The question would be as to what would be the effect of Section 139(1)(a) of the Act, which is in the following terms : “139(1)(a). Grounds for declaring election to be void- (1) Subject to the provisions of sub-section (2) if the prescribed authority is of opinion- (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act,……the prescribed authority shall deal the election of the returned candidate to be void.” 24. Read with Section 137 which provides that the election to any office of a Panchayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed and the further bar in a negative form by Section 138(b) of the Act which declares that no election to any Panchayat shall be called in question except by an election petition presented to the prescribed authority under the Act, it is evident that in an election petition it would be open to the petitioner to challenge the election of a returned candidate on the ground that he did not belong to the particular backward class so as to contest the election on such seat which was reserved for the particular backward class. This, however, cannot have the effect of ousting the jurisdiction of the State Election Commissioner specifically granted to him under Section 136(2) of the Act as amended. It appears that it would be open to such a person to challenge the disqualification in an election petition on the ground of Section 139(1)(a) but it would also be open to the said person not to take recourse to such procedure but straightaway approach the State Election Commissioner by filing a complaint or application before it. 25. However, there is another aspect of the matter. 25. However, there is another aspect of the matter. While an election petition can be presented only by a limited number of persons, i.e., any one who is a voter in such constituency, the same does not hold true with respect to a question of disqualification to be considered and decided by the State Election Commissioner under Section 136(2) of the Act wherein it is clearly provided that not only such matter of disqualification can be brought to the notice of the State Election Commission in the form of a complaint/application or information by any person or authority but the Commission may take suo motu cognizance of disqualification. Thus the locus standi to challenge under Section 136 is much wider than under Section 139(1)(a) of the Act, apart from the fact that with respect to a disqualification the Commission may take suo motu cognizance and decide the same. 26. The next question would be as to the effect of the proviso to Section 136(2). The function of a proviso of the nature as contained in Section 136(2) is to take away from the main part certain matters which are included therein and further it is also explanatory of the extent of power contained the main part of Section 136(2). What is excluded from the main part of Section 136 is the non-entertainment of any complaint the subject matter of which is a purely election dispute. A pure election dispute would normally be a dispute which arises in the course of conduct of the election, some of which are enumerated in the proviso itself as corrupt practice, wrongful rejection of nomination and similar matters. So far as disqualification is concerned, the same is not something which can be considered as purely an election dispute rather as something inhering in the candidate himself or herself and would be irrespective of the fact that the election was otherwise conducted in accordance with law and there is no other defect in the conduct of the said election nor any complaint with respect to any corrupt practice committed by the successful candidate himself or his agent. Thus the question of disqualification cannot be equated with any other dispute arising out of an election which relates to the election process. 27. A disqualified candidate cannot under the Constitution and the law of the land be permitted to continue to hold such post. Thus the question of disqualification cannot be equated with any other dispute arising out of an election which relates to the election process. 27. A disqualified candidate cannot under the Constitution and the law of the land be permitted to continue to hold such post. Even if no power is provided in such matter, this Court would come forward and on proper complaint issue a writ of quo warranto to ensure that such disqualified person did not continue to hold a public office. Under the Act, however, the matter of disqualification which is pre-existing has been left to be decided either by the Election Tribunal or by referring the same to the State Election Commission. So far as the post election disqualification is concerned, the same has been kept exclusively for the decision of the State Election Commission, as per the provisions of the amended Act. The only power which was not specifically conferred on the State Election Commission under the earlier provisions was with respect to disqualification under Section 135 of the Act, as was noted by the Division Bench of this Court in Punam Kumari’s case (supra). The same having been specifically conferred upon the State Election Commission by the amended provision, it cannot be allowed to be defeated on the basis of the proviso, which in any case appears to be more in a nature of a clarificatory provision and does not in any way affect the power conferred in the main part of the provision. 28. So far as the issue raised by learned counsel for the petitioner, that the question of caste should have been left to be verified by the Scrutiny Committee, is concerned it is evident from the decision of the Apex Court in Kumari Madhuri Patil’s case (supra) and the subsequent decisions that they have been confined with respect to verification of caste of Scheduled Castes and Scheduled Tribes, that too, with respect to reservation in educational institutions and in the matter of appointment and have no application either with respect to the verification of caste of other backward class and others or in the matter of elections. 29. Moreover, where the statute specifically confers power upon any authority the same will have overriding effect over any guidelines laid down by the Court. 29. Moreover, where the statute specifically confers power upon any authority the same will have overriding effect over any guidelines laid down by the Court. Thus on both the aforesaid counts the submission of learned counsel for the petitioner in this regard must be rejected. 30. The further contention of learned counsel for the petitioner, that the Election Commissioner could only have declared the petitioner as disqualified but not set aside his election or declared the post vacant, appears to be misconceived. On a perusal of the order of the State Election Commissioner I find that the same is cogently worded and declares the petitioner as disqualified from the post of Mukhiya. The rest part of the order is only consequential so as to state that the post of the petitioner would accordingly be treated as vacant and therefore steps should be taken to fill up the same in accordance with law. Once the power has been conferred upon the State Election Commission to declare a person as disqualified from the said post then it is open for it to hold that such a person declared as disqualified cannot continue to hold the post for which he has been held to be disqualified by the competent statutory authority. In the said circumstances, the post has to be deemed to have become vacant and steps must be taken in any democratic system to see that the said post is filled up. Thus there is no any infirmity in the order of the Commissioner on this count. 31. The last important issue to be considered is the submission that since the Election Commissioner did not take evidence nor has decided the said issue itself but has relied upon a report of the District Magistrate hence the order declaring the petitioner as disqualified must go as it amounts to a surrender of his jurisdiction by the State Election Commissioner without application of his own mind to the issue. 32. It is true that when power is conferred by a statute then the same should be exercised by that very authority. However, the manner in which the power is to be exercised also depends upon the nature of the power that is to be exercised. So far as Section 136(2) is concerned, the power conferred therein is to declare as disqualified from holding any post under the Panchayats. However, the manner in which the power is to be exercised also depends upon the nature of the power that is to be exercised. So far as Section 136(2) is concerned, the power conferred therein is to declare as disqualified from holding any post under the Panchayats. Such disqualification order can be on various grounds, one of them being as not belonging to a particular reserved caste. Numerous grounds have been mentioned under Section 136(1) of the Act one of which is that such person is not a citizen of India. Can it be held that the State Election Commissioner, if any such issue is raised against an elected candidate, should itself decide such issue. In my view, in view of the provisions of the Citizenship Act, 1955 it is evident that any such decision on the question of citizenship if it is one under Section 9 can only be decided in terms of the said Act by the authorities empowered under that Act and not by any other person, including a court of law or the State Election Commissioner under the Panchayat Raj Act. It is thus clear that any such question of disqualification on the ground of not being citizen of India will have to be referred by the State Election Commissioner for the decision of the competent authority under the Citizenship Act and on the basis of the decision rendered by such authority, such person has to be declared disqualified to the post under the Panchayat by the State Election Commissioner. Similarly for other types of disqualification, the proper course to be taken has to be decided by the State Election Commissioner keeping in view the mandate of the Act to decide the matter expeditiously and after allowing such particular person opportunity of being heard. Neither in the Act nor in Rule 117 which provides for decision on the disqualification to be taken by the State Election Commission the procedure has been specifically prescribed or laid down. It is thus evident that the only requirement for the State Election Commission is to ensure that the principles of natural justice, i.e., audi alteram partem, are followed and sufficient opportunity is given to the affected parties of being heard. It is thus evident that the only requirement for the State Election Commission is to ensure that the principles of natural justice, i.e., audi alteram partem, are followed and sufficient opportunity is given to the affected parties of being heard. Thus in a case of caste of a person it is open to the State Election Commissioner to require the authorities who issue such certificates to enquire into the matter and report to the Commission. If thereafter the Commissioner does not hear the affected parties and decides the matter merely on the basis of the report submitted by the authorities then the question can arise of violation of the requirement of Section 136(2) of the Act; but not when copy of the report is available or made available to the concerned party and he has full opportunity of assailing the same before the State Election Commission. It is true that thereafter the Commission itself has to come to its own findings keeping in mind the report of the concerned officers as also the submissions that may be made by the parties. 33. In fact, in a case of disqualification on the ground of caste it is even possible that the matter may reach to the State Election Commission after the authority who had issued the caste certificate has cancelled the same, which is well within the powers of such authority. In that case also the Commissioner will have to examine the various facts placed before it by the parties before coming to the proper conclusion. 34. From a perusal of the order dated 31.10.2012 I find that the Commissioner has examined in detail the findings of the District Magistrate-cum-District Election Officer and the enquiry report submitted by him. It is evident from the order itself that the Commissioner had directed the District Magistrate to enquire in the matter and submit report. The said report has also been taken to be an enquiry report and not an order by the petitioner while he had earlier approached this Court in CWJC No.2747 of 2012 as it is evident from the order dated 9.10.2012 disposing of the writ application with the leave sought that the petitioner may raise the contentions raised in the writ petition before the State Election Commission against the enquiry report submitted by the District Magistrate. 35. 35. I further find that the Commissioner has referred to the hearing held by it after receipt of the report of the District Magistrate and the order dated 12.4.2012 recorded by it in which it had already come to the conclusion that the petitioner had acquired the disqualification of holding the post of Mukhiya. However, since the proceedings before the Commissioner had been stayed by this Court by order dated 9.4.2012 in a writ petition, the matter could not be taken to its logical conclusion. 36. Further, I do not agree with the submission of learned counsel for the petitioner that the State Election Commissioner is obliged to take evidence in all matters before coming to the conclusion. 37. I also find sufficient force in the submission of learned counsel for the Commission that the petitioner has not been able to assail any of the findings nor has placed any material against it or that the findings of the District Magistrate on which the findings of the Election Commissioner that the petitioner is disqualified is based are perverse. As a matter of fact, the petitioner has not brought on record any land record of the same credibility as the khatian of 1905 with respect to the great grandfather of the petitioner as has been brought on the record by the respondent No.7. It is evident from the decision of the Apex Court cited above, that greater reliance may be placed on the pre-Independence documents and land records because they furnish a higher degree of probative value to the declaration of status of caste as compared to the post-Independence documents and were not made in contemplation of any such question of being entitled to reservation. 38. The reference by the petitioner on the amended Serial 94 of Annexure-1 of OBC reservation list made by the Jharkhand Government by including Sheikh therein does not favour the petitioner but as a matter of fact it goes against him, showing that the State of Jharkhand could not have given the said caste the benefit as Extremely Backward Class without adding “Sheikh” along with Julaha and Ansari in the said serial number and as such the petitioner cannot be given the benefit of Extremely Backward Class category. 39. Thus, in the light of the aforesaid discussions, I find no reason to interfere with the impugned order of the State Election Commissioner. 39. Thus, in the light of the aforesaid discussions, I find no reason to interfere with the impugned order of the State Election Commissioner. The writ application is, accordingly, dismissed.