A.K Parichha, J.:— Petitioner was elected as Sarpanch of Haladidiha Gram Panchayat in the election held on 19.2.2002 His election was challenged by Opposite Party No. 1, one of the defeated candidates, in Election Misc. Case No. 23 of 2002, in the Court of Learned Civil Judge (Jr. Div.), Jajpur, on the plea that though petitioner does not belong to Scheduled Caste, yet basing on a wrong certificate granted by Tahasildar, he got his nomination paper cleared and contested the election for the seat reserved for Scheduled Caste category. In the election petition, it was, inter alia, claimed that petitioner belongs to “Niari” caste, which does not find place in the list mentioned in the concerned Entry in the Constitution (Scheduled Tribe) Order, 1950, but obtaining an illegal certificate, Ext. A from the Tahasildar that he belongs to “Dewar” caste, he could contest the election. Petitioner, as Opp. Party No. 3, contested the election Misc. Case asserting that “Niari” is a Sub-caste of “Dewar” and therefore, he belongs to Scheduled Caste community and the certificate, Ext. A issued by competent authority is there to establish his claim.
2. Both Parties adducted oral and documentary evidence in support of their respective cases. Learned Civil Judge on assessment of such evidence on record held that petitioner belongs to “Niari” caste, which is not there in the list of the Presidential Order and is accordingly not a person belonging to Scheduled Caste. Since the post of Sarpanch of Haldidiha Gram Panchayat is reserved for Scheduled Caste, Learned Civil Judge declared the election of the petitioner to be void and further declared casual vacancy for the said office.
3. Petitioner preferred Election Appeal No. 4 of 2003 before Learned District Judge, Cuttack and the said Court after hearing the parties, delivered the impugned judgment on 30.7.2003 confirming the conclusion and finding of the Learned Civil Judge.
4. Argument is advanced by Learned Counsel for petitioner that the caste certificate granted by the Tahasildar was challenged in appeal, but that appeal was dismissed and, therefore, the status of the petitioner as a member belonging to Scheduled Caste is conclusive and the said conclusion could not have been negatived by the Courts below on the basis of entries in the R.O.R and revenue records, which have no statutory enforceability or legal status as public documents. Relying on Sanatan Mangal…Petitioner. v. State Of Orissa & Another…Opp. Parties., 73 (1992) CLT 208, he further submitted that “Niari” community people are by caste “Kaibarta” or “Keuta”, which are synonymous with “Dewar” and accordingly, the persons belonging to “Niari” caste can be accepted as Scheduled Caste people.
5. Learned Counsel for Opp. Party No. 3, on the other hand, submitted that the list of Scheduled Caste in the Presidential Order, 1950 is self contained and when it does not include “Niari” caste then it is not permissible to say that a Sub-tribe, community or groups is synonymous to the one mentioned in the list, if they are not so specifically mentioned. He submitted that the ratio laid down in Sanatan Mangal (supra) is no more a good law in view of the judgment of the Apex Court in State of Maharashtra v. Millind, (2001) 1 SCC 4 : AIR 2001 SC 393. He further submitted that entries in the records of right prepared over the years and the entries in the Revenue Official records carry strong evidentiary value and the Tahasildar should not have ignored these entries and given an arbitrary certificate that petitioner belongs to “Dewar” caste.
6. In the case State of Maharashtra v. Millind (supra), a Constitution Bench of the Apex Court after making a thorough examination of the provisions of the Constitution, existing laws, earlier judicial pronouncements overruled the ratio laid down by this Court in the case of K. Adikanda Patra v. Gandua, AIR 1983 Orissa 89 and by the Apex Court in Bhaiya Ram Munda v. Anirudha Patar, (1970) 2 SCC 825 : AIR 1971 SC 2533 and Basavallingappa v. D. Munichinnappa, AIR 1965 SC 1269 and held that the Scheduled Tribes Order must be read as it is and it is not at all permissible to hold any enquiry 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 Presidential Order. In that judgment, the Apex Court laid down some principles on the subject, which are noted below:
(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 list of Scheduled Tribes issued under Clause 1 of Article 342 only by the Parliament by law 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 list of Scheduled Tribes specified in the notification as issued under Clause 1 of Article 342.
(5)*********
7. The above ratio, mutatis mutandis, applies to the cases of Scheduled Castes as per the Presidential Order, 1950. In view of the ratio laid down by the Apex Court in Millind Case (supra), the ratio of Sanatan Mangal (supra) is no more a good law and is of no help. Whether “Niari” is a Sub-caste of “Dewar” or not is not a matter to be decided by any revenue authority or any Court.
8. In the present case, petitioner admitted that he belongs to “Niari” caste, but made a claim that “Niari” is a Sub-caste of “Dewar” and relied on the certificate, Ext. A granted by the Tahasildar. As has been indicated above, by the relevant date Tahasildar had no legal authority to enquire and interpret that “Niari” would come within “Dewar” caste and could be taken as a caste included in the list of the Presidential Order. That apart there are public documents like Exts. 1 to 4, 6 & 7 indicating that petitioner belongs to “Niari” caste, whereas there is no evidence that the petitioner is in any way a person belonging to “Dewar” caste. We find from the impugned judgment that Learned District Judge has duly considered the above noted aspects in Paragraphs 11 to 14 of the judgment.
9. After perusal of the impugned judgment, contentions of the parties, materials on record and relevant law on the subject, we find no irregularity or jurisdictional error in the impugned judgment. Therefore, we are not inclined to interfere with the same in exercise of our jurisdiction under Articles 226 & 227 of the Constitution.
10. Writ Petition is accordingly dismissed. No cost.
11. Writ Petition dismissed.
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