M.M.DAS,J. - (1.)The petitioner in this writ petition has challenged the order dated 27.2.2008 passed by the learned Addl. District Judge, Nayagarh in Election Appeal No. 1 of 2008 dismissing the said appeal and thereby confirming the judgment dated 14.1.2008 passed by the learned Civil Judge (Junior Division), Nayagarh in Election Misc. Case No. 17 of 2007. The Election Tribunal in the said election petition while allowing the same declared the election of the petitioner as Sarpanch of Narsinghpur Grama Panchayat to be null and void and further declared the opp. party No. 1 as elected unopposed to the office of the Sarpanch of the said Grama Panchayat.
(2.)Facts in gist leading to the present writ petition are that, the post of Sarpanch of Narsinghpur Grama Panchayat in the district of Nayagarh is a reserved post for Scheduled Tribe candidate. The present writ petitioner and the opp. parties 1 to 3 contested the election for the said post. On 14.1.2007, the petitioner was declared elected. The opp. party No. 1 Dalimba Dei preferred Election Petition No. 17 of 2007 only on the ground that she belonged to Scheduled Tribe category amongst all the candidates and none other candidates are Scheduled Tribe candidates, therefore, the election of the petitioner to the post of Sarpanch of Narsinghpur Grama Panchayat is required to be declared as null and void and it was further prayed that the opp. party No. 1 be declared elected unopposed for the office of the Sarpanch, Narsinghpur Grama Panchayat. During hearing of the election petition, the present petitioner, who was the opp. party No. 1 in the Election Misc. Case, filed a petition for amendment of his pleadings and challenged the eligibility of opp. party No. 1 (election petitioner) to contest the said election on the ground that she was disqualified to contest the said election as she does not know how to read and write Oriya. The opp. parties 2 and 3 in the Election Misc. Case, who are also opp. parties 2 and 3 in the present writ petition did not contest the said Election Misc. Case. The petitioner also tried to make out a case that the opp. party No. 1 (election petitioner) married a person called Nalu Nahak and, therefore, by virtue of their marriage, he is no more a member of Scheduled Tribe community. The Election Tribunal on analyzing the materials produced before it, i.e. both oral and documentary, concluded that merely on the basis of the marriage, the caste of a person does not change, it derived support for the above conclusion from the decision in the case of Sandhya Thakur v. Devi Kushwah, 2005 CLT 161 (SC). Thus, it held that the election petitioner (present opp. party no.1) is SABAR by caste and is, therefore, a person belonging to Scheduled Tribe community. With regard to the pleadings as amended by the writ petitioner before the Election Tribunal referring to section 33 of the Orissa Grama Panchayat Act, 1964 (for short 'the Act'), the learned Election Tribunal held that under no circumstances, a returned candidate can move a petition challenging disqualification of his contestant, who seeks a relief in terms of Section 38 (2) (b) of the Act. The O.G.P. Act does not provide any thing like a counter claim under Order VIII Rule 6-A C.P.C. Further, relying upon the decision in the case of Chandrakanti Bhoi v. The Collector, Bolangir and another, (2001) C.L.R. 550, the learned Election Tribunal held that the writ petitioner, who was the opp. party No. 1 before it, had no cause of action under the Act to challenge the eligibility of the election petitioner in the said election petition and such a matter cannot be decided in the said election petition. On the above basis, it found that the election petitioner (present opp. party No. 1) should have been declared elected in view of ineligibility of all the other contestants to contest the said election to the post of Sarpanch, which was reserved for a candidate belonging to Scheduled Tribe. It, therefore, declared the election of the petitioner as null and void and made a further declaration that the opp. party No. 1 herein (election petitioner) is to be declared elected unopposed to the office of the Sarpanch of Narsinghpur Grama Panchayat. The petitioner preferred an appeal against the said judgment and the learned appellate court on taking note of the grounds and reasons given by the Election Tribunal in its judgment and on analyzing the evidence afresh confirmed the said judgment of the Election Tribunal.
(3.)Be it mentioned here that before the Election Tribunal, the opp. party No. 4 therein, who is the Election Officer of Nayagarh District, filed his pleadings, inter alia, stating that the election petitioner (opp. party No. 1 herein) does not belong to Sabar by caste and does not come under Scheduled Tribe category though he has admitted that the father of the petitioner was a person belonging to SABAR caste. He further admitted that the other two contestants, opp. parties 2 and 3, did not belong to Scheduled Tribe community and after the marriage of the election petitioner to one Nalu Naik @ Nahak, who belonged to Saara, the caste of the election petitioner has changed to the caste of her husband and she is no more a candidate belonging to the Scheduled Tribe community. It was further averred by him that since no person belonging to Scheduled Tribe community contested the election for the post of Sarpanch of the said Grama Panchayat, no illegality or irregularity has been committed by the Officer-in-charge of the election at the time of scrutiny of the nomination papers in allowing all such candidates to contest the election.