BANOMALI BEHERA Vs. MARKANDA MAHAPATRA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution filed by the petitioner for quashing the order dated 26-10-60 passed by the Sub-divisional Magistrate and Election Officer of Grama Panchayat, Nowrangpur, District Koraput. The facts, in short compass, are as follows: The petitioner, being a member of the Agnipur Grama Panchayat in the district of Koraput, contested the election for Sarpanch. But at the time of filing the Nomination Paper, Opposite Party No. 1, Markanda Mohapatra filed an objection petition on various grounds, to the nomination of the petitioner before the Presiding Officer, who gave him time to produce evidence. He having failed to do so, the nomination was accepted, the election was completed in due course and the petitioner was declared elected to the office of Sarpanch on 17-5-60. Opposite Party No. 1, being aggrieved by the election of the petitioner as Sarpanch, preferred an appeal to the Sub-Divisional Magistrate, Nowrangpur, on the ground inter alia, that the present petitioner being a deed writer registered under the Orissa Licensing oE Deed Writers Rules, 1950 (hereinafter referred to as 'the Rules'), holds an office of profit within the meaning of Section 10 (9) (c) of the Orissa Gram Panchayat Act, 1949 (hereinafter referred to as 'the Act') and as such, he is not eligible to be elected as Sarpanch. The Election Officer directed Sri. B. Mohapatra, Magistrate, 3rd Class, to make an enquiry and the said Enquiring Officer submitted his report holding that the petitioner holds an office of profit and on the basis of that report the Sub-Divisional Magistrate, by his order dated 26-10-60 in A. P. No. 2 of 1960, declared the election of the petitioner as Sarpanch to be void in law and ordered a fresh election. Against the said order of the learned Sub-Divisional Magistrate the petitioner has filed the present application under Article 226 of the Constitution.

(2.) The petitioner admittedly is a registered-deed writer under the Rules. The only question, therefore, is whether such a person--a deed writer--holds an office of profit within the meaning of Section 10 (9) (c), and as such, is disqualified to be a sarpanch. The relevant provisions of the said section of the Act run as follows:

(3.) In this connection, it is necessary to examine the various provisions of the Rules, which were made by the Inspector General of Registration, Orissa, in exercise of his powers conferred by" Clause (j) of Sub-section (1) of Section 69 of the Indian Registration Act, 1908. The Rules have been approved by the Government of Orissa under Sub-section (2) of the said Section, and were published in the Orissa Gazette, September 7, 1951, Part III p. 1111. Rule (4) of the Rules provides that any person of the district preferably of the area within the jurisdiction of the Sub-Registrar's Office, who is well versed in drafting documents etc. and whose conduct is good and who is of good character may a.pply in Form I to the Registrar of the District for licence to act as a deed writer. Rule 5 (1) provides that he is to pay a licence fee of Rs. 5/- and on payment of the said amount his name shall be entered in the Register of deed writers. The licence shall take effect from the date of issue. Rule 5(2) says that in granting the licence under Sub-rule (1) the persons, who on the date of the issue of the licence have been carrying on the work of the deed writers, if they apply under Rule 4 and fulfil the conditions specified in that rule, shall be given preference. Rule 6 says that the licence shall have effect till 31st December of every year, and will be renewed from year to year by the Registrar, subject, however, to the good conduct, satisfactory act and physical fitness of the applicant, and on payment of the annual renewal fee of one rupee. In case an application for renewal is not made within the due time by the licensee or his renewal is refused by the Registrar, then his name shall be struck off from the Register. Rule 7 provides that a list of licensed deed-writers shall be hung at the Sub- registrar's office and under Rule 8 they would be allowed to sit on the office precincts and to enter into the office of the Sub-Registrar to transact business authorised by the licence. Rule 9 provides that the number of deed writers for a particular office shall be fixed by the Registrar according to the requirements of that office and there will be no limit to the number of documents to be written by any particular deed writer. Rule 1 prescribes the scale of fee to be charged by the licenced deed writers with the approval of the District Registrar according to the condition prevailing in the district and the licence shall be liable to be cancelled in case the deed writer charges more than the prescribed fee. The licence is, however, subject to cancellation for breach of any of the provisions under the Rules, and an appeal is provided to the Inspector General of Registration against such order of cancellation.