GOLAKH BEHARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE facts of the writ application may be stated in short. The petitioner is a member of the Swatantra party. He was a candidate for the Chairmanship of the delang Panchayat Samiti. the election of which was held on 10th of January, 1971. Abhimanyu Ransing (opposite party No. 5) and Harihar Jena (opposite party No. 6)were the contesting candidates. The poll was taken on 10th January. 1971. Opposite party No. 5 secured 103 votes while the petitioner secured 95 votes. Thus by a margin of 8 votes opposite party No. 5 was declared elected. The petitioner prayed for issuing of a suitable writ for setting aside the election of opposite party No. 5. The election is assailed on an averment of the following facts. The coalition cabinet of the Swatantra and Jana Congress Parties tendered its resignation to the governor on 9-1-71 at about 7. 30 p. m. The Governor accepted the Chief minister's resignation at about 8. 30 p. m. on the same day. The Presidential proclamation under Article 356 of the Constitution was issued on 11-1-71. Thus for about two days from 9-1-71 till 11-1-71 there was a Governor without a cabinet. The petitioner's stand is that the executive power of the State shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution and as there was no cabinet the Governor could not exercise such executive power. The Collector, Puri (opposite party No. 3), could not exercise the function of an Election Officer and had no authority to appoint Presiding Officers and Polling Officers to conduct the election held on 10th of January 1971 and that the election held on that day was invalid and inoperative. No counter affidavit has been filed on behalf of the contesting candidates. The state Government and the Union Government have however filed their counter affidavits contending that the election was valid. The main plank of their stand is that 10th of January 1971, the date of polling, had been fixed long before under the Orissa Panchayat Samiti (Conduct of Election) Rules, 1970 (hereinafter to be referred to as the Rules) framed under Section 57 of the Orissa Panchayat Samiti act, 1959, (hereinafter to be referred to as the Act); that the Election Officer, presiding Officers and Polling Officers functioned under the provisions of the Act and the Rules and that the election was valid even though there was no cabinet on 10-1-71.

(2.) THE sole question for consideration in this writ application is whether the election held on 10th of January 1971 was invalid due to the absence of a cabinet to aid and assist the Governor in exercising executive power.

(3.) BEFORE noticing the rival contentions of the parties it would be proper to have a glance through the relevant provisions of the Rules under which election of chairman of Panchayat Samitis and conduct of polling take place. Rules 3 to 37 in part I of the Rules deal with election of Chairman of Panchayat Samitis and conduct of polling. Some of these Rules may be extracted to understand the scheme under which polling is conducted and election of the Chairman is held: "3. (1) The Election Officer shall, at least three weeks before the date fixed for election, issue notice in the form prescribed in Schedule I, calling for names of candidates for the office of the Chairman of each of the Panchayat Samitis. x x x x