RAM KUMAR JAIN Vs. RAMAKANTA GOUDA

JUDGEMENT

(1.) This Second Appeal has been preferred against the judgment dated 31.3.2011 passed in RFA No. 47 of 2010 (Election) by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna confirming the judgment and decree parsed in Civil Suit No. 13 of 2010 by the learned Civil Judge (Senior Division), Bhawanipatna. The appellant was the defendant No. 1 in the aforesaid suit. He got elected as a Councillor from a general seat to the Kesinga NAC. Similarly, the respondent No. 1 also got elected as a Councillor from another Ward of the said NAC. The electron for the post of Chairperson of Kesinga NAC was scheduled to be held on 30.9.2008. The appellant and the respondent No. 1 filed their nominations to contest for the post of Chairperson which was reserved for SEBC/OBC community candidate. The appellant filed a caste certificate to show that he belongs to such community/category. Admittedly, the respondent No. 1 belongs to such category. The election was held on the scheduled date and both the candidates got equal number of votes, i.e., six each for which there was drawal of lottery and the appellant was declared as elected to the post of Chairperson of the Kesinga NAC.

(2.) The respondent No. 1 filed an election dispute purportedly under section 18 read with section 21 of the Orissa Municipal Act, 1950 (for short, 'the Act') before the learned District Judge, Kalahandi, who is the designated Tribunal to decide the election dispute under section 18 of the Act. The appellant filed an application before the learned District Judge/Tribunal challenging the jurisdiction of the said Tribunal to try the election dispute. The said application being rejected, the appellant approached this Court in W.P. (C) No. 11555 of 2009. This Court exhaustively dealing with the question in detail with reference to Article 243ZG of the Constitution of India, sections 18 and 21 as well as section 57 of the Act, held that the election petition was not maintainable before the learned District Judge/Tribunal under section 18 of the Act. While holding thus and allowing the writ petition, this Court in its judgment dated 20.10.2009 came to the following conclusions:-

(3.) Written statement was filed by the appellant-defendant No. 1 traversing the allegations made in the plaint and on the pleadings of the parties, the learned trial court tried the suit by framing seven issues. The appellant while defending the suit pleaded that he belongs to SEBC/OBC community and thus, he is legally elected Chairperson of the NAC. The vital defence taken by him is that the suit was baited by limitation in respect of which issue No. 3 was settled by the learned trial court. Answering the said issue, the learned trial court came to the conclusion that the limitation prescribed for filing an election depute under section 18 of the Act will not be applicable to a suit for declaration for which the Limitation Act prescribes the period of three years. Therefore, the learned trial court held that the suit is not barred by law of limitation.