PRAVAKAR BEHERA Vs. BIBEKANANDA ROUT

JUDGEMENT

(1.) IN this writ petition, the petitioner has called in question the judgment dated 2.2.2008 passed by the learned District Judge, Cuttack in Election Appeal No.5 of 2007 confirming the judgment dated 22.9.2007 passed by the learned Civil Judge (Junior Division), Athagarh in Election Misc. Case No.5 of 2007.

(2.) THE facts leading to the present case are that the election to the office of Sarpanch of Viruda Grama Panchayat was scheduled to be held on 13.2.2007. The said seat of the Sarpanch was a general seat. As per the schedule of election, nomination papers were to be filed between 8.1.2007 to 15.1.2001. The Opp. Party no. 1 filed his nomination to contest the election to the office of Sarpanch of the said Grama Panchayat on 15.1.2007. Scrutiny of the nomination papers was held on 16.1.2007 and the Election Officer rejected the nomination paper of the Opp. Party no.1 on the ground that he has not mentioned his caste in the space provided in the declaration column of the nomination paper. Election as scheduled was held on 13.2.2007 and the petitioner was declared elected as the Sarpanch of the said Grama Panchayat. The Opp. Party no.1 filed Election Misc. Case No.5 of 2007 before the learned Civil Judge (Junior Division), Athagarh challenging the illegal and improper rejection of his nomination paper. The grounds of challenge to the election of the petitioner as Sarpanch were that the nomination paper of the Opp. Party no. 1 could not have been rejected by the Election Officer since as per Rule 29 (b) of the Orissa Grama Panchayat Rules, the Election Officer shall not reject the nomination paper if he is otherwise satisfied that the identity of a candidate is not in doubt and the question of eligibility is not involved. The other ground for challenge was that the nomination paper of the Opp. Party no. 1 being illegally rejected, the same has materially affected the election, as the Opp. Party no. 1 was debarred from cor1testing the said election and, hence, the election becomes void as per section 39 (c) of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act'). The petitioner, who was declared elected, on receiving summons in the Election Misc. Case filed his objection to the same, inter alia, denying the statement made in the election petition that just after rejection of the nomination paper, the election petitioner (Opp. Party no. 1) immediately intimated regarding such high -handed action of the Election Officer to the Election Commissioner, Orissa, Bhubaneswar. The learned Civil Judge (Junior Division), Athagarh after framing the issues in his judgment dated 22.9.2007 arrived at the findings that Rule 29 of the Orissa Grama Panchayat Rules (for short, 'the Rules') does not provide that non -mention of caste is a ground for rejection -of the nomination paper. He further found that the Opp. Party no. 3 in the Election Misc. Case, i.e., the Authorized Election Officer, who scrutinized the nomination paper was found to have acted carelessly for which the Election Officer (Opp. Party no.2 in the Election Misc. Case) wrote to the Sub -Collector, Athagarh by his letter dated 2.2.2007 along with the photo copy of the nomination paper of the Opp. Party no. 1 (election petitioner) with a request to take necessary action as deemed proper against the said Authorized Election Officer. On the above findings and on the analysis of the materials, both oral and documentary, produced before the Election Tribunal, he held that it is crystal clear that during scrutiny of the nomination paper, the Opp. Party no. 1 was 'not disqualified to contest the election on any ground as provided under section 25 of the Act. From Ext. A/1, he concluded that the Authorized Election Officer had no doubt about the identity of the candidate and also the question of eligibility of the candidate to contest the election was not involved. Accordingly, he declared the election of the present petitioner to the office of Sarpanch, as null and void and allowed the Election Misc. Case. The petitioner carried an appeal to the learned District Judge, Cuttack in Election Appeal No.5 of 2007. The learned District Judge also referring to the materials on the point and further referring to section 39 (1) of the Act as well as the decision of this Court in the case of Abhan Singh @Abhan Singh Rajput v. Election Officer, Raighara G rama Panchayat and ors, 57 (1984) CLT 451 and a decision of the Kerala High Court, found no error in the judgment of the learned Civil Judge (Junior Division), Athagarh and confirmed the same.

(3.) LEARNED counsel for the Opp. Party no. 1, on the contrary, drawing the attention of this Court to the decision in the case of Abhan Singh (supra) as well as the judgment of the apex Court in the case of Dillip Kumar Gon v. Durga Prasad Sinha, AIR 1974 SC 2343 contended that the seat of the Sarpanch in the concerned Grama Panchayat being a general seat, non -mention of caste did not affect the qualification of the Opp. Party no. 1 to contest the election to the office of Sarpanch in any manner. As per section 39 (1) (c) of the Act, if the learned Civil Judge (Junior Division) finds that the nomination paper has been improperly rejected or accepted, it is mandatory on his part to declare the election of a returned candidate void. Learned counsel also referred to Rule 29 of the Rules, which provides that the Election Officer shall on the appointed time, date and place, receive nomination papers for the office of Sarpanch in form No.4 and scrutinize them in presence of the candidates, their proposer and seconders, if any who may be present. If he finds that the candidate is duly qualified in accordance with the provisions of section 11 of the Act and not disqualified under any of the clauses of section 25 of the Act, he shall approve the candidature. It is also provided in clause (b) of the said Rule that the Election Officer shall not reject the nomination paper merely on account of some discrepancy between the age, name or other particulars of a candidate or his proposer or seconder as given in the nomination paper and in the electoral roll, provided that the Election Officer is otherwise satisfied that the identity of a candidate is not in doubt and the question of eligibility is not involved.