R.N.BISWAL, J. W.P.(C) NO.13570 OF 2008( Decided on 23.06.2010) BIDYUTLATA NAYAK …….. Petitioner. .Vrs. SMT. SUCHETA SAMANTA …….. Opp.Party. (A) ORISSA GRAMA PANCHAYAT ACT, 1964 (ACT NO.1 OF 1965) – SEC.32. (B) ORISSA GRAMA PANCHAYAT ACT, 1964 (ACT NO.1 OF 1965) – SEC.31 (1). (C) ORISSA GRAMA PANCHAYAT ACT, 1964 (ACT NO.1 OF 1965) –SEC.10 (D ) ORISSA GRAMA PANCHAYAT ACT, 1964 – SEC.40. For Petitioner - M/s. susanta Ku. Dash, A.K.Otta & B.P.Dhal. For Opp.Party – M/s. M.R.Mohapatra, B.S.Samal, R.R.Samantaray, P.K.Behera & P.K.Mohapatra. R.N.BISWAL,J. The petitioner calls in question the judgment dated 10.9.2008 passed by learned District Judge, Dhenkanl in F.A.O.No.26 of 2007 reversing the judgment dated 18.8.2007 passed by learned Civil Judge(Jr.Ddivision) Dhenkanal in Election Petition No.24 of 2007 declaring the election of opp.party to the office of Sarpanch of Digambarpur G.P. as null and void and consequentially declaring the petitioner as duly elected Sarpanch in her place. 2. The petitioner, sole opp.party and three others contested for the office of Sarpanch of Digambarpur G.P. under Gondia Block in the district of Dhenkanal held on 19.2.2007.Since the opp.party polled the highest number of votes, she was declared elected to the said office on 22.2.2007. 3. Being aggrieved with the declaration of the said result, the petitioner filed Election Petition No.24 of 2007 before learned Civil Judge (Jr.Division) Dhenkanal (hereinafter referred to as ‘Election Tribunal’) along with a petition for condonation of delay in filing it, mainly on the ground that the office of Sarpanch of the aforesaid G.P. was reserved for Other Backward Class (women),the opposite party does not belong to the said class, as her caste was Kshyatriya. During the time of filing of nomination by the opp.party, the petitioner challenged her candidature before the Returning Officer and requested him not to accept her nomination, but still then ,he accepted it. It is the further case of the petitioner that she secured the second highest number of votes. 4. Opp.party in her counter admitted that she was born in a Kshyatriya family. Her husband is also Kshayatrya by caste. But according to her, the caste Agnikula Kshyatriya having been notified as Socially and Educationally Backward Class, the caste Kshyatriya will come under it. It is her specific case that Ext.7 was issued by the Addl. Tahasildar, Gondia, certifying that she is a member of Socially and Educationally Backward class. Moreover, no body challenged her candidature before the Returning Officer while filing the nomination. It is her further case that even though opp.party was quite heal and hearty, still then she did not file the Election Petition within the statutory period and manufactured some documents to fit into her plea that she was ill from 28.2.2007 to 19.3.2007. 5. On the above pleadings of the parties, the Election Tribunal framed three issues .In order to prove her case, while the petitioner examined two witnesses including herself, as P.W.1, opp.party examined three witnesses to prove her stand. 6. After assessing the evidence on record, the Election Tribunal allowed the Election Petition and declared the election of the opp.party as null and void on the ground that she does not come under Socially and Educationally Backward class and further declared the Election Petitioner to have been duly elected as Sarpanch of Digambarpur G.P. 7. Being aggrieved with the said judgment, the opp.party preferred F.A.O.No.26 of 2007 before the learned District Judge, Dhenkanal, who set aside the judgment passed by the Election Tribunal on the grounds; that the Election Officer was not made a party in the Election Petition; that an Election Petition cannot be accepted beyond the period prescribed therefore and that the opp.party being Kshyatriya by caste is included within Agnikula Kshyatriya. 8. Learned counsel appearing for the petitioner submitted that the Election Officer is neither a necessary nor a proper party in an Election Petition. Section 32 of the Orissa Gram Panchayat Act,1964 (hereinafter referred to as ‘G.P.Act’) describes the persons, who are to be made parties in an Election Petition. There is nothing to show that the Election Officer is required to be made a party in such a petition. He further submits that learned District Judge, Dhenkanal committed gross error in holding that in no circumstance an Election Petition can be filed beyond the prescribed limit. As envisaged under the 2nd proviso to Section 31(1) of the G.P.Act, if the petition satisfies the Election Tribunal that sufficient cause existed for his/her failure to present the petition within the period prescribed, it may condone the delay and accept the petition. He further submitted that the caste Agnikula Kshyatriya cannot include the caste Kshyatriya within its ambit. So, according to the learned counsel for the petitioner, the writ petition deserves to be allowed. 9. On the contrary, learned counsel for the opp.party contended that the certificate under Ext.7 certifying that opp.party comes under Socially and Educationally Backward caste having not been set aside by any higher forum, the appellate court rightly held that opp.party comes under Socially and Educationally Backward Class. He further submitted that the result of the election was declared on 22.2.2007.So, as per the mandate contained under Section 31(1)of the G.P. Act, the Election Petition ought to have been filed within 15 days thereafter i.e. on 9.3.2007, but, the same having been filed on 21.3.2007,learned Election Tribunal ought not to have entertained it. Furthermore, he submitted that the petitioner could not prove satisfactorily that she was suffering from illness from 20.2.2007 to 19.3.2007 In view of the rival submissions of learned counsel for the parties, it would be profitable to quote Section 32 of the G.P.Act, which reads as follows: “32.Parties to the petition-(1)The petition may be presented by any person who has filed his nomination. (2)A person whose election is questioned and where the petition is to the effect that any other candidate is to be declared elected in place of such person, every unsuccessful candidate who has polled more votes than such candidate shall be made opposite party to the petition.” In the case at hand, prayer of the petitioner before the Election Tribunal was to declare the election of the opp.party as null and void and to declare her (petitioner) as the duly elected Sarpanch of Digambarpur G.P. There is no dispute that she secured the second highest number of votes.So, she was required to make the returned candidate as the sole opp.party, which she has done. Moreover, there is no personal allegation against the Election Officer. So, he was not required to be made a party. Accordingly, the finding of the appellate court that the Election Petition is bad for non-joinder of the Election Officer cannot stand. 10. As per Section 31(1) of the G.P.Act, the Election Petition is required to be filed within 15 days after the date on which the name of the person elected, is published. But, the 2nd provision to it, reads as follows: Provided further that if the petitioner satisfies the Civil Judge (Jr.Division)that sufficient cause existed for the failure to present the petition within the period aforesaid, the Civil Judge(Jr.Division) may in his discretion condone such failure” In the instant case, along with the Election Petition, the petitioner filed a petition under section 5 of the Limitation Act to condone the delay. As per the said petition, she suffered illness from 20.2.2007 to 19.3.2007. She proved it through the doctor, P.W.2, under whom she was undergoing treatment. She also proved Ext.2, the medical certificate issued by P.W.2 and also the prescriptions Annexure-3 and Annexure 3/3. The Election Tribunal was satisfied that she was suffering from serious illness from 20.2.2007 to 19.3.2007 and could not file the Election Petition within time. So the finding of the appellate court that there is no provision in the G.P. Act for condonation of delay in filing the Election Petition cannot stand. 11. As stated eaerlier, opp.party was born and brought up in a Kshyatriya family. She married to a person belonging to Kshyatriya caste. Ext.7, the caste certificate issued by the Addl.Tahasildar, Gondia also shows that her caste is Kshyatriya. Of course, it further shows that she belongs to Socially and Educationally Backward class. The additional Tahasildar was of the view that the caste Agnikula Kshayatriya includes Kshyatriya and issued the certificate under Ext.7. As per the submission of learned counsel for the opp.party, when the correctness of the said certificate has not been challenged and it stands as it is, it can safely be held that opp.party comes under Socially and Educationally Backward Class. 12. As stated above, Ext.7 shows that opp.party is Kshyatriya by caste, but Addl.Tahasildar issued the certificate showing that she belongs to Socially and Educationally Backward Class which is not correct. Even if Ext.7 is not challenged in any higher forum, it cannot be said that opp.party comes under Socially and Educationally Backward Class. Ext.5, issued by the State Election Commission, Orissa, to all the Collectors of the State, shows that the list of Socially and Educationally Backward Classes notified by the Govt. of Orissa from time to time shall be adopted for the purpose of filling up the seats/offices reserved for Backward class of citizens. The State list of Socially and Educationally Backward classes furnished by the Minorities and Backward Classes Welfare Department, Govt. of Orissa reflects that the caste Agnikula Kshyatriya comes under Socially and Educationally Backward class. So, a person belonging to that caste can file nomination to contest the election reserved for Back Ward Classes. The apex court, time and again have held that it is not permissible to say that a tribe, sub-tribe or part of or group of any tribe is synonymous to the one mentioned in the scheduled tribe order, if they are not specifically mentioned in it. So, when as per the aforesaid notification the caste Agnikula Kshyatriya has been specified as Socially and Educationally Backward class, the caste Kshyatriya cannot be included in it. The trial court committed an error in holding that the caste Kshyatriya is within the ambit of the caste Agnikula Kshyatriya. Since the office of Sarpanch was reserved for O.B.C.(women,) the nomination of opposite party ought not to have been accepted. Admittedly, there are five candidates including opp.party in the election fray. Had the nomination of the opp.party not been accepted, the votes secured by her would have been distributed amongst the remaining candidates; in that event it is difficult to say who would have secured the highest number of votes. So, the trial court ought not have declared the petitioner to have been duly election as the Sarpanch of Digambarpur Grama Panchayat. 13. Under such circumstances, the writ petition is allowed, the judgment passed by the appellate court is set aside and the judgment of the trial court is confirmed to the extent that election of the opp.party is null and void. So far the order declaring the petitioner to have been duly elected as Sarpanch of Digambarpur G.P. is hereby set aside. The competent authorities are directed to conduct fresh election in respect of the office of Sarpanch of Digaambarpur G.P. expeditiously. No cost