CHINARI ARJU PATRA Vs. SADI RAMAMOHAN RAY

JUDGEMENT

(1.) THE undisputed facts of the case may be stated in brief. By a notice (Annexure 'a') dated 1st March, 1969, the first meeting of the newly elected councillors of the notified Area Council. Surada (hereinafter to be referred to as the Council) was held on 8th March, 1969 at 3 p. m. in the council office to hold the election of chairman and Vice-Chairman from amongst the newly elected members. The additional District Magistrate, Ganjam, Miss R. C. Amal, I. A. S. (opposite party no. 2) presided over the meeting being delegated with powers under Section 3 (16) of the Orissa Municipal Act, 1950 (hereinafter to be referred to as the Act ). The President called for nomination for the office of Chairman, The petitioner and opposite Party No. 1 were the only two contesting candidates. All the 12 members of the Council were present The two candidates did not vote. The remaining 10 members voted by secret ballot. Each of them got five votes. As there was equality of votes, on the direction of the President a peon of the office called one manmohan Acharya, a boy aged 7 years who was standing nearby, to draw the lots. Two empty ballot boxes were placed on the table of the Council hall. The names of the petitioner and opposite party No. 1 were written on two slips of the paper which were put inside the box. Into the other box two other slips of paper one containing the number 'zero' and the other the word 'chairman' -- were put. It was explained to the candidates in the meeting that the boy would draw two pieces of paper -- one from each box --and that the name of the candidate associated with the paper containing the word 'chairman' would be declared to be elected. The boy was asked by the President to take out one slip from each of the boxes. The boy accordingly picked up one slip from each box. In the first round the slip containing the name of the petitioner and the other slip containing 'zero' came out. Obviously the other two slips contained the names of opposite party No. 1 'chairman'. In the circumstances, the President declared that opposite party No. 1 was duly elected as the Chairman of the Council. The entire proceedings were recorded in the minute book of the Council by an assistant under the direction of the President.

(2.) ON the aforesaid facts Mr, Panda for the petitioner advanced the following contentions:-

(3.) UNDER Section 3 (16) of the Act, a "magistrate of the district" means District magistrate and includes any Magistrate ' subordinate to the District Magistrate to whom he may delegate all or any of his powers under this Act. The District magistrate delegated his powers to the Addl. District Magistrate to preside over the meeting. It is contended that this delegation is without jurisdiction inasmuch as the Addl. District Magistrate is not subordinate to the District Magistrate. It is not necessary to examine the contention whether the Addl. District Magistrate is subordinate to the District Magistrate within the meaning of Section 3 (16) of the Act as otherwise the Addl. District Magistrate could exercise the powers of the district Magistrate being empowered under Section 10 (2) of the Criminal P. C.