ORDER
Rajendra Menon, J.
1. Petitioner, by this petition has called in question the tenability of the order Annexure P-1 passed by the Returning Officer whereby the objection with regard to the acceptance of the nomination paper of respondent No. 4 for contesting the election to the post of Member of Janpad Panchayat has been accepted.
2. It is the case of the petitioner that the post was reserved for a candidate belonging to other backward classes. Nomination paper submitted by respondent No. 4 discloses that his caste was Sikh Harijan Keer. According to the notification issued by the State Government vide Annexure P-5 Sikh Harijan had been deleted from the category of OBC, accordingly, it is averred that respondent No. 4 was not entitled to contest the election.
3. This Court by order dated 18-2-2000 had issued notices and stayed issuance of the notification of the election as required under Rule 90 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as ‘Election Rules’). Learned Senior Advocate appearing for the petitioner vehemently submitted that respondent No. 4 is a Sikh Harijan and Sikh Harijan having been deleted from the category of OBC vide Annexure P-5, acceptance of his nomination was per se illegal and he was disqualified from contesting the election, it is also submitted by him that earlier also petitioner had filed Writ Petition No. 87/2000 challenging the impugned order of acceptance of nomination of respondent No. 4 and this Court vide order dated 21-1-2000 (Annexure P-8) had directed the Returning Officer to decide the objection
before polling commences. In spite of the order of this Court, without considering the same, the impugned order was passed on 29-1-2000.
4. Placing reliance upon the judgment of this Court in the case of Surendra Kumar Lakhera v. Malik Singh Chawla and others [1998 (1) JLJ 278], it is submitted that in that case also matter pertaining to Sikh Harijan Chawla was taken into consideration and this Court had held that Sikh Harijan Chawla does not belong to OBC as the word ‘Chawla’ is not included in the category of OBC.
5. Respondents have filed return and a preliminary objection has been raised with regard to maintainability of the petition before this Court. It is stated that in view of the provisions of Article 243O of the Constitution of India, petition is not maintainable. It is highlighted that the election petition under the Election Rules of 1995 being available, no petition under Article 226 of the Constitution can be maintainable.
6. It is further averred that a notification has been issued vide Annexure R-4 on 5-4-1997 wherein ‘Keer’ has been declared to be in the OBC category in all the districts of Madhya Pradesh, except Bhopal, Raisen and Sehore Districts. In view of the above, it is stated that election of respondent No. 4 is ‘Keer’ by caste and belonging to OBC, accordingly, it is stated the impugned order Annexure P-1 has been correctly passed.
7. Basic question that requires determination is as to whether the petition is maintainable in the facts and circumstances of the present case, in view of the bar contained in Article 243O of the Constitution and in view of the fact that the bar of filing election petition is provided in the Election Rules, 1995.
8. Inviting my attention to the judgment of the Supreme Court in the case of K. Venkatachalam v. A. Swamickan (AIR 1999 SC 1723), Shri S.B. Mishra, learned Senior Advocate contends that when the candidate elected lacks basic qualification for contesting the election, constitutional bar will not come in the way of entertaining petition under Article 226 of the Constitution. Inviting my attention to the observations made by the Supreme Court in Paragraphs 25 and 28 of the aforesaid judgment, learned Senior Advocate submits that in the instant case also, respondent No. 4 was disqualified from contesting the election as he did not belong to the OBC category.
9. Having heard learned Counsel for the parties, I am of the opinion that in the instant case, the law laid down by the Supreme Court in the case of K. Venkatachalam (supra) will not be applicable. That was a case where the candidate’s name was not included in the voters list and in spite of that he was permitted to contest the election. It was in that background, that the Supreme Court had held that the candidate must possess basic qualification for contesting the election, therefore, the petition was maintainable. In the present case, there is serious disputes between the parties with regard to the social status of
respondent No. 4. The documents on record indicate that respondent No. 4 in his nomination paper had declared himself as Sikh Harijan Keer. Even though Sikh Harijan has been deleted from the category of OBC vide Annexure P-5, but the notification Annexure R-4 indicates that ‘Keer’ in all the districts of Madhya Pradesh except Bhopal, Raisen and Sehore belongs to OBC category. The Returning Officer also while passing the impugned order has held that even though respondent No. 4 has disclosed himself to be Sikh Harijan, but his caste is ‘Keer’. This is a dispute which requires adjudication. This dispute can be adjudicated more appropriately by the Election Tribunal. That being so, this is not a case, where disqualification of the candidate in question is apparent on the face of the record and, therefore, the law laid down in the case of K. Venkatachalam (supra), is distinguishable.
10. Case of Surendra Kumar Lakhera (supra) was a case where the question of ‘Chawla’ being in the OBC category was disputed and in the list of OBC non-inclusion of the word ‘Chawla’ was considered by this Court and the case decided accordingly. In the instant case, inclusion of the word ‘Keer’ in Annexure R-4 makes all the difference. Whether respondent No. 4 is a ‘Keer’ or is only a Sikh Harijan is a disputed question which requires determination.
11. This Court vide order dated 26-4-2002 had given time to the State to clarify the position. Learned Government Advocate appearing today indicated that no further clarification is required as it is clear from Annexure R-4 that ‘Keer’ belongs to OBC category in all the districts except those in which it is excluded. As respondent No. 4 has been declared to be ‘Keer’, no further clarification is required.
12. Considering the totality of the facts and circumstances of the case and the nature of dispute which has come up for adjudication, it is the considered view of this Court that petition under Article 226 of the Constitution would not be maintainable for adjudication of the present dispute. Constitutional bar and the statutory bar prevent this Court from entertaining the petition as the petitioner has to resort to the remedy of raising the dispute by filing an election petition in accordance with the Election Rules, 1995. Accordingly, the petition is dismissed as the same is not maintainable in view of the bar under Article 243O of the Constitution and the petitioner is free to raise a dispute in accordance with the rules. Petition is accordingly dismissed.
13. In view of the interim order dated 18-2-2000 passed by this Court, it seems that the notification of the election has been made. After the notification of the election is made, petitioner shall be free to file election petition in accordance with law.