I.M. Quddusi, J.
1. This writ petition has been filed against the Judgment and order dated 5.1.2004 passed by the Addl. District Judge, Sonepur in Election Appeal (RFA No. 57 of 2003) filed by Opposite party No. 1 allowing the appeal and setting aside the Judgment and order dated 20.03.2003 passed by the Civil Judge (Jr. Division), Sonepur in Misc. Judicial Case No, 17 of 2002 and declaring the election of the Petitioner as a returned candidate to the office of Sarpanch, Lachhipur Grama Panchayat void and consequently declaring a casual vacancy to the said office.
2. The brief facts of the case are that the seat of Sarpanch, Lachhipur Grama Panchayat was reserved for Scheduled Castes category in the last election held in the year 2002. The Petitioner as well as Opposite party No. 1 both filed their nomination papers before the Election Officer scrutiny of which was conducted on 22.1.2002 wherein the Opposite party No. 1 raised written objection before the Election Officer challenging the validity of nomination papers filed by the Petitioner with the allegation that he was not a person belonging to scheduled castes community. But the Election Officer did not accept the same and accepted the nomination papers of the Petitioner. Thereafter, the election was held and the Petitioner was declared elected. Thereafter, Opposite party No. 1 filed election petition under the Orissa Grama Panchayat Act before the Civil Judge (Jr.Division), Sonepur which was registered as M.J.C. No. 17 of 2002. The Learned trial, Court framed the following issues:
1. Whether the Opposite party No. 1 is not a member of scheduled caste category and is disqualified to contest the election for the office of Sarpanch, Lachhipur G.P. held on 21.2.2002.
2. Whether the election of the Opposite party No. 2 to the office of Sarpanch Lachhipur G.P. declared by the Opposite party No. 1 as on 1.2.2002 invalid.
3. To what relief the Petitioner is entitled.
3. The case of the Opposite party before the Trial Court was that the instant Petitioner belongs to 'Keuta' caste which does not come under the category of scheduled castes community under the Constitution (Scheduled Castes) Order, 1950. But according to the instant Petitioner he belongs to 'Dewar' caste and the authority had issued caste certificate in his favour which was marked as Ext.4 during the trial. During the trial the Petitioner of Election petition (Opposite party No. 1) produced himself in the witness box as P.W.I and one Makardhwaja Sethi as P.W.2. The instant Petitioner was Opposite party in the election petition ,who produced himself as 0.P.W.1 and one Muralidhar Naik as O.P.W.2.
4. The Election Petitioner-Opposite party No. 1 in the instant writ petition P.W.I filed a certified copy of 'Record of Rights') (in short 'ROR') and the orders dated. 19.1.2002 and 21-1 -2002 passed in Revenue Misc. Certificate Case No. 381 of 2002, vide order dated. 21.1.2002 the certificate regarding schedule caste of the instant Petitioner was refused on the ground that in the ROR it is mentioned as 'Keuta' caste which is not expressly provided in the Presidential order. The ROR holding No. 245 of 1998 of Mouza-Lachhipur, P.S. Dungripalli, P.S. 153 of 4th settlement in which his caste has been mentioned as 'Keuta'. Therefore, the Opp. party had relied upon the said document apart from oral evidence by him as well as given by P.W.2, Makardhwaja Sethi, who had also given oral evidence stated that the instant Petitioner is 'Keuta' by caste. In rebuttal, the writ Petitioner as OPW 1 stated that he belonged to 'Dewar' caste' and the caste certificate was issued by the Tahasildar, Sonepur in his favour which was marked as Ext.4. OPW 2, Muralidhar Naik, had also given oral evidence stating that the instant Petitioner Bairagi Charan Nuain belongs to 'Dewar' caste.
5. The Learned Civil Judge, (Jr. Division), Sonepur dismissed the election petition has already mentioned above.
6. Feeling aggrieved, Opposite party No. 1 filed an appeal before the District Judge which was heard and decided by the Addl. District Judge, Sonepur allowing the same.
7. Learned Addl. District Judge while allowing the appeal has taken note of the documents, i.e., ROR in which the caste of the Petitioner was recorded as 'Keuta' and also the order passed in Revenue Misc. Case No. 381 of 2002 as Ext. 3 by which the Petitioner was refused the said caste certificate on the ground that he belonged to 'Keuta' caste which was not included in the Constitution (Scheduled Castes) Order, 1950.
8. The instant writ petition has been filed by the Petitioner against the impugned order passed in the appeal setting aside the order passed by the Trial Court and declaring the election of the Petitioner as void and also declaring casual vacancy to the office of Sarpanch, Lachhipur Grama Panchayat.
9. Learned Counsel for the Petitioner has produced the Constitution (Scheduled Castes) Orders (Second Amendment) Act 2002 which was published in the official gazette by the Ministry of Law and Justice dated 18.12.2002. After receiving the assent from the President on 17.12.2002 in which in Section 9 amendment in respect of Orissa has been made to Para VIII and in Clause (3) thereof Entry No. 24 in the original order has been substituted as 'Dewar, Dhibara, Keuta, Kaibarta'. The amendment reads as follows:
1. This Act may be called the Constitution (Schedule Castes) Orders (Second Amendment) Act, 2002.
2. The Schedule to the Constitution (Scheduled Castes) Orders 1 950 is hereby amended in the manner and to the extent specified in Schedule 1.
SCHEDULE I
(See Section 2(1)
Amendments to the Constitution (Scheduled Castes) Order, 1950
XXX XXX XXX XXX9. In Part XIII-Orissa-
(i) (i) xx xx(ii) xx xx(iii) for entry 24, substitute
24. Dewar, Dhibara, Keuta, Kaibarta.
10. But the date of scrutiny of nomination paper was 22.1.2002 and the elections were holding on 21.2.2002 . The amendment to the Constitution (Scheduled Castes) Order, 1950 came into force through official gazette dated 1 8.12.2002, i.e., much after the date of scrutiny of nomination papers and therefore the Petitioner cannot be given benefit of the said amendment.
11. The earlier certificate to the effect that the Petitioner belong to 'Dewar' caste was issued on 13.2.1984 due to the reason that 'Keuta' was synonymous to 'Dewar'. 'Dewar' was included in the Constitution (Scheduled Castes) Order, 1950 as held by the Learned lower Appellate Court. But in 2002 the same was refused in view of the Supreme Court's decision in State of Maharastra v. Millind AIR 2001 SC 393 in which the Constitutional Bench of the Hon'ble Court has held as under:
1. It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950.
2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any Tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.
3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the laws of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament bylaw and by no other authority.
4. It is not open to State Governments or Courts or tribunals or any other authority to modify, amend or alter the laws of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.
5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patra : [1971]1SCR804 and Dina v. Narayan Singh (1968) 38 ELR 212; did not lay down law correctly in stating that the enquiry was permissible and the evidence showing admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no enquiry at all is permissible and no evidence can be let in, in the matter.
12. Since the Learned Addl. District Judge, Sonepur has given his finding on the basis of the document exhibited in the election petition by which it has been proved that the Petitioner belongs to 'Keuta' caste which was not included in the Constitution (Scheduled Castes) Order, 1950 at the time of filing of nomination and on the date of scrutiny of nomination, he was not qualified to contest the election.
13. In view of the facts and circumstances discussed above; we see no reason to interfere with the findings given by the Learned Addl. District Judge, Sonepur, while allowing the appeal. The writ petition has no force and is, therefore, dismissed.
N. Prusty, J.
14. I agree.