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2009 Supreme(Ori) 683
IN THE HIGH COURT OF ORISSA
M.M. Das, J.
RENUBALA MOHANTY - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
Decided On : 21-08-2009
The determination of OBC status cannot be confined to the caste alone, and the court can appreciate the materials brought before it to find out whether a person belongs to OBC or not.
Headnote:
Election Dispute - OBC Category - W.P. (C) No. 3404 of 2008 - Article 15(4), Ashoka Kumar Thakur Vs. Union of India, State of Maharashtra v. Milind and Ors. - The court discussed the genuineness of the caste certificate, the interpretation of OBC category, and the legal principles from various cases. The court remitted the matter back to the Election Tribunal for rehearing and directed the disposal of the case within six months.
Fact of the Case:
The election for the office of Sarpanch, Abadan Grama Panchayat was contested, and the Petitioner was declared elected. The Opp. Party No. 2 filed an election petition challenging the election solely on the ground of the Petitioner's caste, claiming that the nomination paper should have been rejected as the Petitioner does not belong to OBC category.
Finding of the Court:
The court found that the Election Tribunal and the Appellate Court misdirected themselves in determining the Petitioner's OBC status based on the caste of the Petitioner's father and the Presidential Notification. The court remitted the matter back to the Election Tribunal for rehearing and directed the disposal of the case within six months.
Issues: The main issue was whether the Petitioner belongs to the O.B.C. Category or not.
Ratio Decidendi: The court held that the determination of OBC status cannot be confined to the caste alone and remitted the matter back to the Election Tribunal for rehearing and fresh judgment.
Final Decision: The court set aside the judgments of the Election Tribunal and the Appellate Court, remitted the matter back to the Election Tribunal for rehearing, and directed the disposal of the case within six months. The Petitioner was entitled to continue as the elected Sarpanch of the Grama Panchayat until the final disposal of the election dispute.
JUDGMENT :
M.M. Das, J. - The Petitioner & Opposite Party No. 2 were contesting the election for the office of Sarpanch, Abadan Grama Panchayat under Kakatpur Panchayat Samity in the district of Puri. The said seat was a reserved seat for OBC category. The Petitioner having obtained highest number of votes was declared elected to the office of Sarpanch of the said Grama Panchayat. The Opp. Party No. 2 filed an election petition, being Election Misc. Case No. 16 of 2007 before the Learned Civil Judge (Junior Division), Nimapara challenging the election of the Petitioner solely on the ground that the nomination paper of the Petitioner should have been rejected as the Petitioner does not belong to OBC category.
2. The Opp. Parties 2 & 3 pleaded that the caste of the father of the Petitioner has been recorded as "Dakua Paika." But the Petitioner on obtaining a caste certificate that she belongs to the caste of "Paika" filed her nomination paper. It was, therefore, pleaded by them that the said certificate was obtained by the Petitioner fraudulently from the Tahasildar. In the written statement of the Petitioner, she pleaded that she has been issued with the said certificate by the Tahasildar in the year 2006, wherein it has been mentioned that she is "Paika" by caste. She further pleaded that the Election Tribunal cannot sit in appeal over the caste certificate, as the "Dakua Paika" & "Paika" are the same caste.
3. The caste certificate issued in favour of the Petitioner that she belongs to "Paika" by caste was under challenge in appeal before the Sub-Collector, Puri, which ultimately came up before this Court in W.P. (C) No. 3404 of 2008. The said Writ Petition was disposed of by this Court on 30.6.2008 with the following order:
Heard Learned Counsel for the Petitioner, Learned Additional Standing Counsel for the State & Mr. S.K. Mishra, Learned Counsel for Opp. Party No. 1. By means of this Writ Petition, the Petitioner has prayed for quashing of the Order Dated 7.1.2008 passed by the Tahasildar, Kakatpur cancelling the caste certificate issued in favour of the Petitioner & the Order Dated 23.2.2008 passed by the Sub-Collector, Puri in Misc. (A) No. 9 of 2008 disposing of the appeal filed by the Petitioner against the aforesaid order of the Tahasildar holding that he does not want to interfere in the order of the Tahasildar, Kakatpur, basing on records. The Hon'ble Apex Court in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, inter alia directed that all the State Governments shall constitute a Committee of three officers, namely, (i) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may, & (iii) in the case of Scheduled Castes another officer who has intimate knowledge in the verification & issuance of the social status certificates to consider the genuineness or otherwise of the caste certificates issued. Learned Additional Government has submitted that the State Government has constituted a Committee headed by the Director, SC & ST Development Department to examine the genuineness or otherwise of the caste certificates issued. We, therefore, quash the impugned orders passed by the Tahasildar as well as the Sub-Collector & remit the matter to the Tahasildar concerned to deal with the same keeping in mind the directions issued by the Hon'ble Apex Court in Madhuri Patil case (supra) & the fact that the State Government has constituted a Committee pursuant to the direction issued by the Hon'ble Apex Court. However, we make it clear that issuance of, castes certificate or cancellation of the same will not affect the proceeding pending before the Court of Election Petition & it will be open for the Court concerned to decide the Election Petition on the basis of the evidence adduced before it. The Writ Petition is disposed of accordingly.
From the above, it
