SRI JEETENDRA KUMAR DEBATA Vs. LAXMIDHAR PRADHAN

JUDGEMENT

(1.) THE Petitioner in the present Writ Petition was elected as a Samiti Member of Talamundali samiti election Zone of Baramba Panchayat Samiti under Baramba Block in the district of Cuttack. The Opp. Party No. 1, as Petitioner, filed an election dispute before the Learned Civil Judge (Sr. Division), Athagarh numbered as Election Petition No. 8 of 2007 Under Section 44B of the Orissa Panchayat Samiti Act, 1959 (hereafter referred to as 'the Act') praying for declaring the result of the election published on 24.2.2007 in which the Writ Petitioner was declared elected, as illegal & void.

(2.) THE case of the Opp. Party No. 1 was that the Writ Petitioner filed his nomination paper on 11.1.2007 & he filed the same on 15.1.2007. On 16.1.2007, at the time of scrutiny of the nomination paper, the Opp. Party No. 1 (election Petitioner) raised objection Under Section 45(1)(s) of the Act that the Writ Petitioner is not qualified to contest the election having not completed 21 years of age as on the said date & he mentioned in the nomination paper that he is aged 22 years on the basis of school leaving certificate obtained from Panasapatna Kendra Prathamika Vidyalaya, which is a forged one. It was further pleaded by the Opp. Party No. 1 - election Petitioner that the nomination paper should have been rejected by the Election Officer thereby, he should have been declared elected as an uncontested candidate as the Samiti Member. The Writ Petitioner, who was the Opp. Party No. 1 in the election petition, after his appearance in the election dispute filed his show cause/written statement denying the allegations made in the election petition, more specifically, denying the fact that an objection was filed by the election Petitioner before the Election Officer. He also asserted that he was more than 21 years of age at the time of filing of the nomination paper & as such, prayed for dismissal of the election petition. The Opp. Party No. 2 in the election petition, who was the Election Officer also filed a separate show cause denying the allegations of the election Petitioner in its entirety & contending, inter alia, that the acceptance of the nomination paper was justified in view of the fact that as per the records available before him, the returned candidate (Writ Petitioner) was above 21 years of age on the date of filing of the nomination papers. He also refuted the allegation that an objection was filed to the nomination filed by the Writ Petitioner.

(3.) DURING the course of trial, the election Petitioner examined himself as P.W. 5 & also proved number of documents marked as Ext. 1 to Exts.10. The Writ Petitioner, who was Opp. Party No. 1, also examined his witnesses & he himself produced his horoscope as Ext. A. The Election Officer, however, neither examined any witness nor produced any document. The Learned Election Tribunal after hearing the contesting parties, came to a finding of fact that the Writ Petitioner (Opp. Party No. 1 before the Election Tribunal) did not attained the age of 21 years as per his matriculation certificate Ext. 9 &, hence, declaring him as elected member of the Samiti is illegal & void. He further held that the Opp. Party No. 1 - election Petitioner should be declared elected for the post of the above Samiti Member. Being aggrieved, the Writ Petitioner filed Election Appeal No. 19 of 2008 before the Learned District Judge, Cuttack Under Section 44 of the Act. The Learned Appellate Court after hearing the contesting parties dismissed the Election Appeal & confirmed the Judgment passed by the Learned Election Tribunal.