ORDER :

The present petition under Article 226 of the Constitution of India has been filed challenging the order dated 16.11.2023 (Annexure P-16) passed by the Commissioner, Jabalpur Division, Jabalpur (MP), whereby the election of the petitioner to the post of Member, Zila Panchayat, has been set aside by allowing the election petition filed by the present respondent No.1.

2. The said election has been set aside on the ground that the seat in question was reserved for Scheduled Caste (SC) and the petitioner is not a member of SC community, hence, is disqualified to be elected from a reserved seat for that category. Further, fresh election has been ordered in the constituency.

3. The learned senior counsel appearing for the petitioner, while assailing the order of the Election Tribunal of the Commissioner, states that the petitioner is a member of Bagdi Caste, which is duly notified Scheduled Caste for the State of Madhya Pradesh, and is entered at Sr. No. 2 for the list of SCs for the State of Madhya Pradesh.

4. The learned counsel submits that though the petitioner had not submitted a copy of the caste certificate, but that was for the reason that the caste certificates of Bagdi caste members are not being issued by the authorities in Seoni and the petitioner cannot be put to a fault for this. It is also submitted that his cousin brothers namely Pramod Singh Baghel and Satyendra Singh Baghel have duly been issued the caste certificate of Bagdi caste, annexed at page 49 and 50 of the petition. It is also submitted that earlier the petitioner was issued the temporary caste certificate by the Naib Tehsildar, however, no permanent certificate could be issued due to the stubborn attitude of the authorities in not issuing fresh certificates of Bagdi Caste in Seoni District.

5. The learned counsel for the petitioner further submits that there is no statutory requirement that a member of reserved community should file copy of his caste certificate in Panchayat election in State of Madhya Pradesh. The learned counsel refers to Rule 40-A of M.P. Panchayat Nirvachan Niyam 1995, to state that if it comes to notice of the Returning Officer that the nomination paper of any candidate has been accepted for a seat reserved for SC, ST or OBC, though the said person prima-facie does not appear to be a member of such community, then the Returning Officer shall ask the candidate to file an affidavit to that effect that he is member of such category, and then no further enquiry will be held. The learned counsel further submits that there is no provision of any enquiry at any later stage during the election process to that effect. Thus, it is the contention of the learned counsel for the petitioner, that the question gets buried for the purpose of election and a person, merely by submitting affidavit of being member of a reserved community, can very well contest the election, though he may not be having caste certificate of that reserved category. The learned senior counsel submits that the proposition may seem outrageous, but that is what the rule provides.

6. It is the further case of petitioner that merely submitting a certificate of being a member of reserved category is sufficient, and that the election tribunal also cannot conduct an enquiry to the aspect of caste status, as that jurisdiction is vested only in the Higher Level Committee as per the judgment in case of Kumari Madhuri Patil Vs. Addl. Commissioner Tribal Development & Ors; 1994 (6) SCC 241. It is the case of the petitioner that the Election Tribunal, while carrying out enquiry into the caste status of the petitioner, has acted contrary to the aforesaid judgment of the Supreme Court, and has assumed the jurisdiction of the Higher Level Committee, and decided a question, for which it was not having the technical expertise.

7. The learned counsel for the petitioner further submits tha