GOPAL KRISHNA BHANJA Vs. SAHADEV BISOI

JUDGEMENT

(1.) A short, but interesting point relating to scope and ambit of Section 45 -B of Orissa Panchayat Samiti Act, 1959 (in short, the 'Act') is the pivotal issue in this case, incidentally some other provisions of the said Act need reference. Since the fate of the application primarily depends upon interpretation of these provisions of the Act, a brief reference to the factual aspect is necessary.

(2.) PETITIONER Gopal Krishna Bhanja and opp. party No. 1 Sahadev Bisoi were the contestants for Chairmanship of Tentulikhunti Panchayat Samiti. The said Panchayat Samiti consists of fourteen Gram Panchayats. From each Gram Panchayat, a member was elected. Sahadev and Gopal Krishna were elected from Amalabhotta and Barangi Podar Gram Panchayats respectively in the election held in the month of May, 1992. Subsequently, as per programme fixed by the Election Officer for the office of Chairman, Tentulikhunti Panchayat Samiti, election was held on 29 -6 -1992. Sahadev and Gapal Krishna were the only contestants. Each of them secured seven votes, and in view of the situation, result was declared by a toss and Gopal Krishna was elected Subsequently, a petition purported to be one Under Section 45 -3 of the Act was filed by Sahadev before the learned District Judge, Koraput inter alia pleading that Gopal Krishna was not eligible and was disqualified to contest the election as he had a subsisting contract with the Samiti. The petition was filed on 13 -9 -1993 before the District Judge -cum -Election Commissioner, Jaypore, and was registered as MJC No. 131 of 1992. Subsequently, a petition purported to he Under Section 44 -C of the Act was filed by Sahadev praying for withdrawal of the petition. The prayer was rejected and the matter was taken up for adjudication by the learned District Judge By the imougned - order dated 6 -11 -1993, she held that Gopal Krishna had a subsisting contract with the Samiti which rendered him disqualified to stand for election. Additionally Sahadev was declared to be the Chairman, which was indicated to be consequential. In the present writ application, challenge is to the consequential direction given by learned District Judge, on the ground that such a direction could not have been given while exercising jurisdiction Under Section 45 -B of The Act.

(3.) BEFORE we cogitate and analyse Sahadev's bone of contention in some detail, it will be convenient at this stage to pore over some of the provisions of the Act. Section 16 deals with constitution of the Panchayat Samiti. Sub -sections 1 (a) thereof deals with election of Chairman and Vice Chairman of Samiti, under the provisions of Sub -section (3) Chapter - VI -A of the Act relates to election disputes. Section 44 -A deals with election petition and provides that election of a person as a member of a Samiti shall not be called in question except by an election petition presented in accordance with provisions of Chapter Vl -A. Section 44 -C deals with the manner of presentation of petition, while Section 41 -3 relates to parties to the petition. Sec.44 -D and 44 -E deal with contests of petition and relief that may be claimed by the petitioner. The petition Under Section 44 -B has to be presented before the Election Commissioner. Sub -section (2) of the said provision provides that the Subordinate Judge having jurisdiction over the place at which the office of the Samiti is situated is the Election Commissioner. In terms if Section 44 -B, a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other candidate may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate, and a petition had been presented calling in question his election. This is known as 'Recrimination when seat claimed 'as the heading of Section 44 -1 shows. Section 44 -L deals with grounds for which Election Commissioner can declare election of a returned candidate void. Section 44 -L (c) is relevant for our purpose. The same reads as follows ;