SACHIDANANDA MAHAKUD Vs. MANAS RANJAN SAMAL

JUDGEMENT

(1.) IN assailment is the judgment and order dated 15.3.2013 passed by the learned Single Judge in W.P.(C) No. 2803 of 2013 thereby declining to sustain the appellant/writ petitioner's impugnment of the order dated 06.11.2012 passed by the learned Civil Judge (Jr.Division), Jajpur in Election Misc. Case No. 16 of 2012 rejecting his impeachment of the maintainability of respondent No.1's petition as not being presented in accordance with Section 31 of the Orissa Grama Panchayat Act, 1964 (for short, hereinafter referred to as 'the Act') and Rule 88 of the Orissa Grama Panchayats Election Rules, 1965 (for short, hereinafter referred to as 'the Rules').

(2.) THE facts in bare minimum inevitably essential for the present adjudication are that the present appellant along with respondent No.1 herein had contested the election for the post of Sarpanch of Udayanathpur Grama Panchayat (for short, hereinafter referred to as 'the Grama Panchayat') under Bari block in the district of Jajpur in the year 2012. In the battle of hustings, the appellant/writ petitioner was returned elected. Subsequent thereto, the respondent No.1 filed the Election Petition Case No. 16 of 2012 in the Court of Civil Judge (Jr.Divn.), Jajpur being the Election Tribunal under the Act questioning the appellant's eligibility as a candidate contending that he was disqualified for the post of Sarpanch as he is the father of three children born after the year 1995. According to the appellant/writ petitioner, though the election petition was presented by the respondent No.1 on 6.3.2012, after the publication of the results on 21.02.2012, it was not accompanied by the statutory deposit as security for costs in terms of Section 31 of the Act and thus the petition was clearly not maintainable in law. He has averred that the challan for deposit of amount of Rs.150/ - towards security for costs was in fact filed on 6.4.2012 i.e. after a month of filing of the election petition, which was thus apparently barred by time. After receiving the notice of the Election Petition, as the appellant has asserted, he filed an application before the Election Tribunal seeking dismissal of the Election Petition on the ground that the same was not accompanied by the security for costs of Rs. 150/ - as enjoined in Section 31 of the Act. The learned Election Tribunal, however, by order dated 6.11.2012 dismissed the said application on the ground that the plea involved mixed questions of law and fact and could not be decided before trial. Having unsuccessfully impugned the same before the learned Single Judge in the aforementioned writ petition, the appellant/writ petitioner is in appeal.

(3.) THE respondent No.1 in his counter in the present appeal, while endorsing the validity of the impugned decision, has asserted that he indeed had filed the Election Petition on 6.3.2012 along with the security for costs by cash with the required challan and also filed a separate petition seeking a direction from the Election Tribunal to the Nazir of the Civil Court to accept the said deposit. Apart from pleading, that the order dated 6.3.2012 passed by the Election Tribunal is a clear testimony of the authenticity of this plea, the respondent No.1 averred further that the appellant/writ petitioner, after entering appearance in the election proceeding, though did file his objection, he did not express any reservation with regard to the deposit of security for costs. According to him, on the basis of the pleadings, learned Election Tribunal framed the issues, where after he led his evidence and it was after the closure of his part of the evidence, that the appellant/writ petitioner filed the application dated 3.10.2012 contending that the Election Petition had been filed without depositing the security for costs.