EXTRAORDINARY PUBLISHED BY AUTHORITY No. 647, CUTTACK, SATURDAY, APRIL 21, 2018 / BAISAKHA 1, 1940 HOME (ELECTIONS) DEPARTMENT NOTIFICATION The 3rd April, 2018 No. 3154– VE(A)-61/2018 /Elec.– The following Notification, dated the 12th March, 2018 of Election Commission of India, New Delhi is hereby republished in the Extraordinary Gazette of Odisha for general information. Sd/- SURENDRA KUMAR Chief Electoral Officer, Odisha ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi-110001 Dated 12 th March,2018 21, Phalguna, 1939 (Saka) NOTIFICATION No. 82/ECI/LET/TERR/ES-II/OR-LA/ (20 & 17/2014)/2018: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby published the Order of the High Court of Orissa, dated 30.01.2018 passed in Election Petition No. 20 of 2014 (Sri Sahadev Xaxa -Vrs- Jogesh Kumar Singh & others) and Election Petition No. 17 of 2014 (Sri Ajay Kumar Patel Vrs Sri Jogesh Kumar Singh & others related to the 9-Sundargarh (ST) Assembly Constituency. 2 HIGH COURT OF ORISSA: CUTTACK ELPET NO.20 OF 2014 & ELPET NO.17 OF 2014 In the matter of an application under Section 80 to 84 read with Sections 100,101 of the Representation of People Act, 1951 read with Orissa High Court Rules to regulate proceedings under the' Representation of People Act.1951. ………………….. ELPET NO.20 OF 2014 Sahadev Xaxa …. ….. Petitioner Versus Jogesh K. Singh & Others … … Respondents For Petitioner : M/s. Gopal Agarwal, K. K. Mishra & T. Mishra For opp. Parties : Mr. Pitambar Acharya, Senior Advocate. ELPET NO.17 OF 2014 Ajay Ku. Patel…. ….. Petitioner Versus Jogesh K. Singh & Others … … Respondents For Petitioner : Mr. Dayananda Mohapatra For opp. Parties : Mr. Pitambar Acharya, Senior Advocate PRESENT THE HON’BLE SHRI JUSTICE B. K. NAYAK …………………………………………………………………………………………………… Date of hearing: 20.12.2017: Date of order: 30.01.2018 B. K. NAYAK. J. These two Election Petitions have been filed challenging the election of Mr. Jogesh Kumar Singh, respondent no. 1 in both the election petitions, to 9- SunJargarh (ST) Assembly Constituency. The petitioner in Election Petition No.20 of 2014 is a defeated Candidate in the said election, where as the petitioner in ELEPET No. 17 of 2014 is a voter of the constituency. The Constituency has been reserved for Scheduled Tribe candidates. The election to the said constituency was held on 10.04.2014 and the result thereof was published on 16.05.2014 declaring respondent no. 1 elected. The petitioners in both the Election Petitions have challenged the election of respondent no. 1 on the common ground that respondent no. 1 does not belong to Schedule Tribe community and as such he was not eligible to file nomination and contest the election from 9- Sundargarh (ST) Assembly Constituency, which was reserved for Scheduled Tribes 3 Only.) It is alleged by both the petitioners that respondent no. 1 filed his nomination by submitting false and fabricated caste certificate (scheduled Tribe Certificate) which was obtained by him from the office of the Tahasildar, Lephripara by practising fraud and misrepresentation, and his nomination was illegally and improperly accepted by the Returning Officer which materially affected result of the election. 2. As per the averments made in paragrapgh-7 in ELPET No.20 of 2014,respondent no. 1 filed his nomination describing himself as S.T. candidate belonging to ‘Bhuyan’ community, on the basis of a caste certificate obtained by him from Tahasildar, LephriparaIn M.C.C.No.107 0f 2014 on the basis of R.O.R of Khata no.207/12 of village- Sargipali. He however concealed the said ...R.O-.R. in the affidavit filed with his nomination paper. He, however belongs to the caste of ‘Khandayat Bhuyan’ which is not a Scheduled Tribe. It is stated that in a series of Revenue records available in the office of Tahasildar, Lephripara, the caste of respondent no. 1 and the caste of his father, grandfather and great grandfather has been mentioned as ‘khandayat Bhuyan’. By practising fraud and influencing the Revenue authorities, he managed to delete the word, ‘Khandayat’ from ‘Khandayat Bhuyan’ and got a mutation R.O.R. in Mutation Case No.162 of 1983. That however does not change the caste of respondent no. 1 from ‘Khandayat Bhuyan’ to ‘Bhuyan’, Thus, respondent no. 1 has succeeded in creating false entries in the R.O.R. with regard to his caste by colluding with the Revenue authorities and on that basis obtained the caste certificate indicating that he belongs to Schedule Tribe of Bhuyan’ community. The correction of R.O.R. in respect of Khata No.207/ 12 and the grant of certificate in favour of respondent no. 1 was on the basis of the inquiry report prepared by the Revenue Inspector which was not consistent with the Revenue records available in the Tahasil office. It is thus stated that on the basis of such false and fabricated caste certificate respondent no. 1 filed his nomination as a S.T. candidate, and that though the petitioner raised objection before the Returning Officer, the latter improperly accepted the nomination of respondent no. 1 and as such the result of election has been materially affected. The further plea of the petitioner in ELPET No.20 of 2014 is that respondent no. 1 along with his nomination filed affidavit in Form-26 as required under Section 33 of the Represent of the People Act, 1951 and in such affidavit he concealed the details of his spouse and dependants. He had not filled up the proforma in Form-26 prescribed by the Election Commission, wherein he is required to state , the name and address etc. of his spouse and dependants and concealed his immovable properties under Khata No.207 of mouza-Sargipali and khata no.75 of village-Sagjori and as such he violated the mandatory 4 requirement of law. For such violation, the Returning Officer should have rejected the nomination paper of respondent no.1, but he improperly accepted the same though it was required to be rejected. – 3. Similarly the petitioner in ELPET No.17 of 2014 has pleaded that respondent no. 1 is the son of late Renu Pratap Singh @, Renu Prasad Singh, who belonged to ‘Kshyatriya / Khandayat Bhuyan’ community, which comes under general caste. This fact is evident from the different record of rights standing in the name of Renu Pratap Singh. It is stated that the caste ‘Khandayat Bhuyan’ is not included in the list of Scheduled Tribes State of Orissa as per the Scheduled Castes and Scheduled Tribes Order, 1950 as amended from time to time. Respondent no. 1 fraudulently and by misrepresentation succeeded in obtaining caste certificate in his favour from office of the Tahasildar, Lephripara showing his caste as ‘Bhuyan’ for the purpose of filing nomination. The Returning Officer illegally and unlawfully accepted the nomination of respondent no. 1 even though objected to. It is further pleaded that respondent no. 1 did not mention in his affidavit in Form-26 about his immovable assets measuring Ac.0.30 under Khata no.·207/ 12 of mouza-Sargipalli appertaining to plot no.872/1405 which he inherited from his father. This was violation of the mandatory provision of law and as such his nomination was liable to be rejected. The petitioners have accordingly prayed for declaring the election of respondent no. 1 void and further the petitioner in ELPET NO.17 of 2014 has prayed that respondent no.2 therein. Namely Kusum Tete another candidate should be declared elected. 4. Upon issuance of notice respondent no. 1 appeared and filed his written statement in both the cases taking almost identical pleas. Except Kusum Tete and Sahadev Xaxa (petitioner in ELPET No.20 of 2014 and respondent no.5 in ELPET No.17 of 2014) all other respondents have been set ex-parte. In his written statement, respondent no.1 has denied the allegations made against him in the Election Petitions. It is stated that the election petitions do not satisfy the requirements of Sections 81 to 83, 117 and 123 of the Representation of the People Act, 1951 and as such liable to be dismissed preliminarily under Section 86 of the Act. It was also alleged that the election petitions do not disclose cause of action and nom appropriate material facts and concise statement have been pleaded. It is admitted however by him that 9 -Sundargarh Assembly Constituency is reserved for Scheduled Tribe candidates. It is stated that he belongs to 'Bhuyan' community, which is a Scheduled Tribe and his forefathers were tribal Zamindars in Sargipalli under erstwhile Gangpur State. His great grandfather was Gajaraj Singh Majhi and his grandfather's name is Dibyasankar Singh. 5 His father Renu Pratap Singh and aunt Nalini were the son ai1d daughter of Dibyasankar Singh. They belonged to ‘Bhuyan’ community. It is further explained that the forefathers of respondent no.1 were the warriors and had given protection to the king from the wrath of Manhas for which the King conferred on them the title of 'Khandayat',i. e. ‘youdha’. Therefore, the Tribe of respondent n o.1 is ‘Bhuyan’ and the word ‘Khandayat’ is a pre fix to the same. Therefore, the mention of ‘Khandayat Bhuyan’ as the caste of his great grandfather and forefathers in some of the Record of Rights has nothing to do with the determination of the tribe of respondent no.1. Whether a person is a Scheduled Tribe or not is dependent upon several factors like customs, usage I practice, system of marriage, festival, worship, social behavior, anthropological origin and several other factors. Respondent no.