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2006 Supreme(Ori) 509
2006 (II) OLR — 363
P. K. TRIPATHY AND PRADIP MOHANTY, JJ.
Sebati Behera...Petitioner
Versus
Subasi Nayak and another...Opp. Parties
W.P.(C) No.14629 of 2004
Decided on 14th July, 2006.
For Petitioner:M/s. K. K. Swain, P. N. Mohanty, S.C.D. Dash and B. Jena
For Opp.Parties:Mr. Bibhuti Bhusan Mishra
Headnote:1. ORISSA GRAMA PANCHAYAT ACT, 1964 - Sec. 30 read with Sec. 31 - Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 - Entry No. 24 of Orissa Scheduled Castes List - Post of Sarpanch - Reserved for a Scheduled Caste candidate - On 21.01.02 nomination papers were filed - Amendment of the list by Second Amendment Act, 2002 came into force on 18.12.2002 - Whether the amendment brought about in the Presidential Order is prospective or retrospective ?
Per P. K. TRIPATHY, J. - The Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002, so far as Entry No. 24 of Orissa Scheduled Castes List, is not retrospective in operation.
The post of Sarpanch for Kalada Grama Panchayat remained reserved for a scheduled caste candidate. By the date of filing of nomination paper there was no Presidential Order upholding the castes ‘Ke¬uta’ and ‘Kaibarta’ as members belonging to scheduled castes. The Caste Certificate granted by the Tahsildar prior to the amend¬ment is illegal and inoperative in view of the ratio in Milind (supra). Therefore, on the basis of such a void certificate, a person cannot be permitted to contest the election. Her eligibil¬ity to claim as a member of scheduled caste only enforceable after 18.12.2002 and, therefore, by the date of filing nomination paper no authority concerned had the capacity, jurisdiction or authority to term ‘Keuta’ or ‘Kaibarta’ as a part of scheduled castes. Once that is so, nomination paper of opposite party No.2 could not have been accepted and in view of that she could not have contested election. For the aforesaid reasons, we uphold the judgment and order of the Courts below and since petitioner was the lone candidate after such elimination of opposite party No.2, therefore, she is bound to be declared elected in view of the prayer made by her to that effect. That decision of the learned Civil Judge was not interfered with by the Appellate Court and, therefore, that decision of the Civil Judge is operative.
(Para - 13)
Per PRADIP MOHANTY, J. - The said amendment in the Presiden¬tial Order is having retrospective effect even though there is no express provision to that effect.
Mere absence of use of the word ‘declaration’ in an Act explaining what was the law before may not appear to be declara¬tory Act, but if the Court finds an Act as declaratory or explan¬atory, it has to be construed as retrospective. The legislative power to enact law includes the power to declare what was the previous law, and when such a declaratory Act is passed, invaria¬bly it has been held retrospective.
In view of the ratio decided by the apex Court in Zile Singh’s case (supra) and by this Court in Narayan Behera’s case (supra), and in view of what has been stated in the Statement of Objects and Reasons of the Amending Bill, I am of the view that the amendment in question is declaratory and curative in nature. Therefore, the said amendment in the Presidential Order is having retrospective effect even though there is no express provision to that effect. Since the amendment in question has relation back to the time when the original Act was enacted, there was no infirmi¬ty in the caste certificate issued by the Tahsildar in favour of the petitioner. (Para - 18)
2. CONSTITUTION OF INDIA, 1950 - Art. 342 (1) - Any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by Parliament by law and by no other authority - It is not open to State Governments or Courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342. (Para - 16)
JUDGMENT
P. K. TRIPATHY, J. — Judgment of learned Civil Judge (Junior Division), Kamakshyanagar in Election Misc. Case No.8 of 2002 and the confirming judgment of learned Ad hoc Addl.District Judge, Kamakshyanagar in F.A.O. No.5/2 of 2003-04 is under challenge.
2. Facts leading to the dispute are that the writ petitioner Sebati Behera (hereinafter referred to as opposite party No.2) and opposite party No.1 Subasi Nayak (petitioner in the Election Misc. Case and hereinafter referred to as ‘the petitioner’) were the two rival candidates contesting for the post of Sarpanch of Kalada Grama Panchayat under Parjang P.S. in the district of Dhenkanal. That post of Sarpanch is reserved for candidates belonging to scheduled castes. On 21.01.2002 nomina¬tion papers were filed. On 22.01.2002 nomination papers were accepted after scrutiny by the Election Officer, who is opposite party No.2 in this writ petition and was opposite party No.1 in the Election Misc. Case. At that stage petitioner raised objec¬tion that opposite party No.2 was not a member of any scheduled caste. That objection was overruled by the Election Officer. On 21.02.2002 election was held and on 01.03.2002 Sebati Behera (opposite party No.2) was declared elected. Thus, Subasi Nayak (petitioner) filed the Election Petition under Section 30 read with Section 31 of the Orissa Grama Panchayat Act, 1965 (in short ‘the Act’). The main ground of challenge is that by the date of nomination and election opposite party No.2 was not a member belonging to any of the Scheduled Castes and the Caste Certifi¬cate (Ext.B) granted in her favour by the Tahsildar is illegal. She further stated that if nomination paper of opposite party No.2 would have been rejected, then she (petitioner) would have been declared elected without any contest. She also prayed to set aside election of the opposite party No.2 and to declare her (petitioner) duly elected.
3. Opposite party No.2 advanced counter contention that she is ‘Kaibarta’ by caste, which is synonymous to ‘Dewar’ caste as per the notification on the basis of the order of the Presi¬dent of India in accordance with the provision in Article 341 of the Constitution of India (in short ‘Constitution’). The Election Officer filed a written statement stating that on the basis of the caste certificate issued by Tahsildar, Parjang in favour of opposite party No.2 that she belongs to ‘Dewar’ (‘Kaibarta’), he accepted her as a person belonging to Scheduled Caste and accept¬ed the nomination paper.
4. In course of hearing, petitioner examined herself as P.W. No.1 and relied on certified copy of the Record of Right of Holding No.252 (Ext.1) to prove that opposite party No.2 does not belong to scheduled caste as enumerated in the Presidential Order in force for Orissa by the date of election. Opposite party No.2 examined herself and one witness in support of her case along with Exts.A and B. As already noted, Ext. B is the Caste Certifi¬cate issued by the Tahsildar and Ext.A is the certified copy of a ‘Khatian’ showing her father’s caste as ‘Kaibarta’.
5. On the issue as to whether opposite party No.2 was a member of scheduled castes at the time of filing of her nomina¬tion paper and on the date of election the Courts below assessed the evidence and examined the position of law and held that when opposite party No.2 has admitted that she belongs to the caste ‘Keuta’ and that was not included in the Presidential Order enumerating the same as scheduled caste, therefore, she could not be accepted as a member of scheduled caste. In that respect, so far as the amendment of the list by Second Amendment Act, 2002 which came into force on 18.12.2002, including ‘Keuta’ and ‘Ka¬ibarta’ as members of Scheduled Castes, the Courts below held that that has no retrospective operation on a plain and unambiguous meaning available from the statutory provision and, therefore, by the date of filing of the nomination paper and acceptance of it and even by the date of election,
