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2014 DIGILAW 358 (ORI)

Sebati Behera v. Subasi Nayak

2014-06-18

I.MAHANTY

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JUDGMENT INDRAJIT MAHANTY, J. 1. This matter referred to this Bench in view of a difference expressed by Hon’ble Shri Justice P.K. Tripathy (the then was) and Hon’ble Shri Justice P. Mohanty. Whereas Hon’ble Shri Justice P.K. Tripathy not finding any merit in the writ petition, had directed its dismissal, Hon’ble Shri Justice P. Mohanty, on the other hand, had directed the writ petition be allowed. 2. The essential facts of this case briefly noted are that the writ petitioner-Sebati Behera and opposite party No.1 Subasi Nayak had both contested for the post of Sarpanch of Kalada Grama Panchayat under Parjang P.S. in the district of Dhenkanal. The said post of Sarpanch was reserved for candidates belonging to Scheduled Castes. Necessary nominations was filed along with necessary caste certificates and the Election Officer had been accepted the nominations after scrutiny. Both the candidates contested the said election and the petitioner ultimately succeeded in the election and was declared elected. 3. It is important to note herein that the petitioner-Sebati Behera had been granted a caste certificate in her favour describing her sub-caste is Dewar (Kaibarta), copy of which is available at Annexure-3. 4. It appears that opposite party No.1 Subasi Nayak, the defeated candidate filed election dispute in the court of Civil Judge (Jr. Division), Kamakhyanagar in Election Misc. Case No. 8 of 2002 challenging the election of the petitioner essentially on the ground that at the time of filing of nomination, the petitioner was not a member of the Scheduled Caste. This contention was sought to be substantiated by placing reliance on the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002, which came into force on 18.12.2002 and as a consequence of such amendment, the sub-caste Kaibarta was clarified/declared and included as a Scheduled Caste in Entry No. 24 of the Act. 5. The learned Civil Judge (Jr. Division), Kamakhyanagar allowed the election dispute filed by opposite party No.1 holding that the inclusion of Kaibarta as a Scheduled Caste was made only on 18.12.2002 and consequently was prospective in nature and the petitioner had been erroneously declared as Scheduled Caste by the Tahasildar, Parjang in its certificate granted on 17.01.2002 on the basis of which the petitioner had contested the election held on 21.02.2002 for the post of Sarpanch of Kalada Grama Panchayat. The aforesaid view was reiterated and accepted by the Adhoc Additional District Judge, Kamakhyanagar in Appeal and, accordingly, F.A.O. No. 5 of 2003/F.A.O. No. 2 of 2004 filed by the petitioner also came to be dismissed. Hence, the present writ petition. 6. I have had the privilege of going through the judgments rendered by the Hon’ble Shri Justice P.K. Tripathy as well as Hon’ble Shri Justice P. Mohanty. The essential differences between the two judgments appears to be that whereas Justice Tripathy referred to the judgment of the directives issued by this Court in the case of Narayan Behera vs. State of Orissa through Secretary, Tribal & Welfare Department and others, 49 (1980) C.L.T. 47 as well as the judgment of the Hon’ble Supreme Court in the case of Zile Singh vs. State of Haryana and others, 2004 A.I.R. S.C.W. 5842 his Lordship came to conclude that it cannot be said that inclusion of three castes in Sl. No. 24 is either declaratory or explanatory with retrospective effect and consequently came to conclude that the said amendment was correctly treated as prospective by the learned trial judge as well as the lower appellate court, Hon’ble Shri Justice P. Mohanty, on the other hand, placing reliance on the aforesaid two judgments of this Court as well as the Hon’ble Supreme Court in the case of Narayan Behera (supra) and in the case of Zile Singh (supra) respectively and also placed reliance in the case of State of Maharashtra vs. Milind Katware, 2000 AIR SCW 4303 as well as various other judgments of the Hon’ble Apex Court concluded that, a bare reading of the aforesaid judgments the mere absence of use of the word declaration in an Act explaining what was the law before may not appear to be a declaratory Act, but if the Court finds an Act as declaratory or explanatory, it has to be construed as retrospective since the legislative power to enact law includes the power to declare what was the previous law, and when such a declaratory Act is passed, invariably it has been held to be retrospective. 7. 7. With greatest respect to the Hon’ble Judges and after perusing the same, I am in respectful agreement with the views expressed by Hon’ble Shri Justice P. Mohanty and, in particular, the judgment of the Hon’ble Supreme Court in the case of Zile Singh (supra) where it has been held that, the presumption against retrospective operation is not applicable to declaratory statute and further that where a statute is passed for the purpose of supplying an obvious omission in a former statute or to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. In the case at hand, this Court in the case of Narayan Behera (supra) had already directed Kaibarta to be issued with caste certificates having held the same to be synonymous with Dhibara and since Kaibarta has come to be included by way of the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 dated 18.12.2002, yet ever since the date of the judgment of this Court in the case of Narayan Behera (supra) came delivered on 05.11.1979, till the date of the Constitutional Amendment, the judgment of Narayan Behera was the law on the subject and the Tahasildar, Parjang, having acted in terms of the direction of this Court in the case of Narayan Behera (supra) (though at the time prior to the Constitutional Amendment), the certificate issued by him in favour of the petitioner was valid and could not have been declared void without any challenge thereto and consequently, for the reason noted herein above, this Court record its opinion and agrees with the views render by the Hon’ble Shri Justice P. Mohanty. Accordingly, the writ petition is allowed in terms of the aforesaid judgment.