ANIL KUMAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner, who is an elected member of the Zilla Parishad, Balasore, has filed this writ petition for a declaration that opposite party Nos. 6 and 7 who had been elected as President and Vice -President have ceased to hold office in such capacity having not taken oath/affirmation as required under Sub -section (2) of Section 36 of the Orissa Zilla Parishad Act, 1991 and a further declaration that the Petitioner being the number one in the panel of elected members is entitled to assume the office of the President of Zilla Parishad in terms of Sub -sections (3) and (4) of Section 9 of the said Act.

(2.) THE case of the Petitioner is that the elected members of the Balasore Zilla Parishad took oath/affirmation as members of the said Zilla Parishad on 13.3.2007. The first meeting was convened for the purpose of election of President and the nomination was scheduled to be filed between 10.30 A.M. to 12.30 A.M. The nomination papers were scrutinized at 12.30 A.M. and the process for withdrawal of candidature started from 1.00 P.M. One Nityananda Sahu, who had filed nomination submitted an application for withdrawal of his candidature and thereafter the voting process for the post of President was done between 2.30 P.M. to 5.00 P.M. At 5.15 P.M. the counting of votes started and opposite party No. 6 having secured a maximum number of votes was declared elected as President of the Zilla Parishad. Similarly on 22.3.2007, the second meeting of the Parishad was convened for election to the post of Vice -President and opposite party No. 7 having secured the maximum number of votes was also declared elected as the Vice -President of the Parishad. On 19.9.2007 in the fifth meeting of the Parishad under Agenda No. 2, a panel of Members for the post of President was prepared in terms of Sub -sections (3) and (4) of Section 9 of the Act and the name of the Petitioner was at sl. No. 1 in the said panel. Referring to Section 36 of the Act, it is contended by the Petitioner in the writ petition that both the opposite party Nos. 6 and 7 having not taken oath as President and Vice -President respectively, they ceased to hold office any further and therefore, the Petitioner being number one in the panel is required to be declared as President of the Zilla Parishad.

(3.) COUNTER affidavit has been filed on behalf of opposite party Nos. 3 and 4 wherein it is stated that consequent upon election to the post of members of Zilla Parishad, Balasore in the year 2007, all the 45 elected members were administered oath of allegiance to the Constitution of India by the Collector, Balasore in a special meeting convened on 13.3.2007. Soon thereafter the election for the post of President was undertaken and opposite party No. 6 was declared to have been elected as President of the Zilla Parishad on 13.3.2007. Later on 22.3.2007 opposite party No. 7 in an election was declared to have been elected as the Vice -President of the Zilla Parishad. In paragraph -6 of the counter affidavit, it is stated that there is no specific provision in the Act specially in Section 36 for taking oath or affirmation twice by the elected members including the President and Vice -President and therefore, there is no necessity of administering oath or affirmation to the President and Vice President again. Opposite party No. 6 has also filed a counter affidavit taking the same stand as opposite party Nos. 3 and 4 and learned Counsel appearing for opposite party No. 7 in course of hearing of the application also took the same stand as taken in the counter affidavit filed by the said opposite party. Therefore, the Court is now called upon to decide as to whether under Section 36 of the Act it is necessary for the members of the Zilla Parishad who have taken oath once as members to take oath again after being elected as President or the Vice President as the case may be. Section 36 of the Act is quoted below: