BISHNU PRASAD DAS Vs. ELECTION OFFICER CUM BLOCK

JUDGEMENT

(1.) THE petitioner and opposite party No. 3 contested for the post of Chairman of Rairakhol Panchayat Samiti. Opposite party No. 3 was elected as Chairman of Rairakhol Panchayat Samiti. The petitioner presented Election Misc. Case No. 51/2002 in the Court of the learned Civil Judge (Senior Division), Sambalpur under Sections 44 -A and 44 -B of the Orissa Panchayat Samiti Act, 1959 (hereinafter referred to as 'the Act'). Opposite party No. 3 filed an application before the learned Civil Judge (Senior Division), Sambalpur contending that the election petition was not maintainable as the petitioner has not complied with the mandatory provision of Section 44 -B of the Act while presenting the election petition inasmuch as the petitioner has not made the security deposit along with the ejection petition within the time prescribed under Section 44 -B of the Act and as the petitioner and opposite party No. 3 were not the candidates from the same area for the post of Member, Panchayat Samiti and an election petition challenging the election to the post of Chairman of the Panchayat Samiti cannot be filed in view of the provisions of Section 44 -C of the Act. In his order dated 7.1.2003 the learned Civil Judge (Senior Division), Sambalpur held that the petition of opposite party No. 3 questioning the maintainability of the election petition does not appear to have any merit and accordingly rejected the same. Aggrieved by the said order dated 7.1.2003, opposite party No. 3 filed Civil Revision No. 3/2003, before the learned District Judge, Sambalpur. The petitioner appeared before the learned District Judge, Sambalpur and pleaded that the revision was not maintainable under Section 115, CPC. The learned District Judge rejected the said contention of the petitioner and instead admitted the Civil Revision and allowed the stay petition filed by opposite party No. 3 staying further proceeding in Election Misc. Case No. 51/2002 in the Court of the learned Civil Judge (Senior Division), Sambalpur. Aggrieved by the said order dated 30.1.2003 passed by the learned District Judge, Sambalpur, the petitioner has filed this writ petition under Article 226 of the Constitution.

(2.) MR . Sanjit Mohanty, learned counsel for the petitioner submitted that the contention of opposite party No. 3 before the learned Civil Judge was that the election of opposite party No. 3 as Chairman of Rairakhol Panchayat Samiti was challenged by the petitioner in the said Election Misc. Case but an election petition challenging the election to the post of Chairman of a Panchayat Samiti was not maintainable under Sections 44 -A and 44 -B of the Act. Mr. Mohanty submitted that this contention of opposite party No. 3 before the learned Civil Judge is misconceived as it has been held by two judgments of this Court in Gobind Ch. Panda v. Darsan Ch. Rout and Ors., 35 (1969) CLT 1108 and Suresh Kumar Azad v. State of Orissa and Ors., 1993 (1) OLR 563 that the election of a Chairman of Panchayat Samiti can be challenged under Section 44 -A of the Act,

(3.) SECTIONS 44 -A and 44 -C of the Act are quoted herein below :