BANABIHARI DAS Vs. BIJAY KUMAR SAHU

JUDGEMENT

(1.) This writ application is directed against the Order Dated 27.2.2010 passed by the Learned District Judge, Ganjam-Gajapati, Berhampur in Election Petition No. 11 of 2008 holding that the Petitioner is disqualified Under Section 16(1)(ix) of the Orissa Municipal Act, 1950 (for short 'the Act') to be a Councillor of the Notified Area Council, Khallikote (for short 'N.A.C') Election Petition No. 11 of 2008 was filed by O.P. No. 1, one of the Councillors of the N.A.C. against the Petitioner & O.Ps. 2 to 5, officials entrusted to the task of conducting elections.

(2.) Polling for ejection to the Council of the N.A.C. was held on 19.9.2008. For the purpose, nominations were received from 25.8.2008 to 27.08.2008. Declaration of successful candidates was made on 20.09.2008. O.P No. 1 was declared as a Councillor from Ward No. 5 & the Petitioner was declared elected as a Councillor from Ward No. 3. On 30.09.2008 the Petitioner was declared to be the Chairman of the N.A.C. First meeting of the Council was held on 11.11.2008.

(3.) It was alleged in the election petition that the Petitioner was disqualified for election as a Councillor of the N.A.C. as on the date of filing of nomination he was an advocate appearing against the N.A.C in C.S. No. 17/06 & C.S. No. 3/08 pending in the Court of Addl. Civil Judge (Jr. Division), Khallikote. In his counter-affidavit the Petitioner took the stand that though he was appearing as an Advocate against the N.A.C. in 2 to 3 cases, he gave up the briefs prior to filing of nomination. The briefs in respect of C.S. No. 17/06 & C.S. No. 3/08 were returned to the clients on 6.8.2008 after which he never took any step in the cases. On the basis of rival pleadings, the Learned Tribunal settled the following seven issues for determination: