T. ABHIMANYU DORA Vs. SUDIPTA CHARAN RAY

JUDGEMENT

(1.) The present writ petition has been filed with a prayer to quash order dated 13.09.2012 (Annexure-5) passed by the learned Civil Judge (Sr. Division), Nayagarh (for short, "Election Tribunal") in Election Misc. Case No.15 of 2012, wherein the Election Tribunal has rejected the petition filed by the petitioner under Section 10 of C.P.C. read with Section 151 C.P.C. Further prayer of the petitioner is to allow the said petition filed in Election Misc. Case No.15 of 2012 (Annexure-3).

(2.) Petitioner's case is that opposite party No.1 who was the election petitioner before the Election Tribunal presented a petition under Section 44A of the Orissa Panchayat Samiti Act, 1959 (for short, "Act, 1959") before the Election Tribunal as Election Misc. Case No.15 of 2012 impleading the petitioner and the proforma opposite party no.2 as opposite parties therein with a prayer to declare the election of the present writ petitioner as Chairman, Dasapalla Panchayat Samiti as void and to make a further declaration that the election petitioner is the uncontested Chairman of the said Panchayat Samiti. Further case of the election petitioner is that for the election of the Chairman, Dasapalla Panchayat Samiti, the writ-petitioner, Election Petitioner and one Kedar Majhi filed nomination before opposite party No.2-Additional Project Director, D.R.D.A., Nayagarh-cum-Election Officer on 11.03.2012. During scrutiny of the nomination papers the (election petitioner) opposite party No.1 here filed a written objection before opposite party No.2 objecting the candidature of the writ petitioner on the ground that he has been illegality elected as Samiti Member by giving a false caste certificate as O.B.C. and practising fraud. Therefore, it was alleged that the writ petitioner is disqualified to contest for the office of Chairman. Since the objection of the election petitioner has not been considered, he filed the election petition. The election of the writ petitioner to the office of Samiti Member of Dasapalla Panchayat Samiti in Kujamendhi Grama Panchayat has been challenged by one Upendra Sahu, one of the contesting candidate to the office of Samiti Member of said Panchayat Samiti by filing an Election Petition bearing Election Misc. Case No.2 of 2012 making the same allegation that the writ petitioner is not belonging to OBC category but has submitted a false affidavit while filing the nomination papers and has prayed to declare the election of the writ petitioner to the post of Samiti Member of the said Panchayat Samiti as null and void and to declare him as the elected candidate in the said post. The said Election Misc. Case No.2 of 2012 is pending adjudication before the Election Tribunal. An application filed under Order 7, Rule 11, C.P.C. by the writ petitioner having been rejected by the Election Tribunal by order dated 26.07.2012, the writ petitioner has approached this Court by filing a writ petition bearing W.P.(C) No.14192 of 2012 and this Court vide order dated 10.08.2012 has been pleased to stay further proceeding in Election Misc. Case No.2 of 2012 which is continuing as such. While the matter stood thus, the writ petitioner filed an application on 04.09.2012 under Section 10 read with Section 151 C.P.C. inter alia stating therein that since in Election Misc. Case No.2 of 2012 and Election Petition No.15 of 2012 the issue is same, the Election Petition No.15 of 2012 which has been filed subsequently challenging the election of the writ petitioner to the office of the Chairman of Dasapalla Panchayat Samiti, the same needs to be stayed till the candidature of the present petitioner to the office of Samiti Member is not decided. It was further stated in the said petition that in the event of continuance of the subsequent proceeding there shall be conflict of decision which shall lead to miscarriage of justice.

(3.) The Election Petitioner filed the petition under Annexure-4 inter alia stating therein that both the Election Misc.Cases are not being the same nor between the same parties the decision in one case shall not operate as res-judicata in the other proceeding. He has also pleaded in the objection petition that the said misc. case being one under a special statute and not a suit under the C.P.C., Section 10 C.P.C. is not applicable to the present case. Filing of the objection petition is nothing but to delay the proceeding and therefore, he prayed under Annexure-4 to reject the said petition. Learned Election Tribunal after hearing the parties rejected the petition dated 04.09.2012 (Annexure-3) vide order dated 13.09.2012 passed under Annexure-5. Hence, the present writ petition.