UPENDRANATH MAHAKUD Vs. B.N. SADANGI AND ORS.

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution, by a defeated candidate in the election to the office of Sarpanch of Khunta Grama Panchayat. The election was actually held by a Sub -Deputy Collector named Shri B.K. Parida, on 8 -4 -1963. There were two contesting candidates for the office of Sarpanch, namely the Petitioner Upendranath Mohanty and opposite party No. 2 Sarbeswar Mohanty. The report of the Election Officer to the Sub -divisional Officer, Kaptipada, shows that 19 members of the said Grama Panchayat were present at the election meeting and that one of the votes was rejected as the cross mark of the voter was not found in column 2 of the ballot paper meant for recording the vote and that the remaining 18 votes were cast equally in favour of the two candidates, namely 9 votes each. The Presiding Officer Shri B.K. Parida thereupon drew a lot in the presence of the two candidates and declared the Petitioner Upendranath Mahakud to be the successful candidate. As soon as he declared the election, the rival candidate Sarbeswar Mohanty filed an objection against the rejection of one of the ballot papers saying that it ought to have been coupled in his favour. This petition was however rejected. Then Shri Sarbeswar Mohanty filed an application before the Sub -divisional Officer, Kaptipada, under Rule 24 of the Orissa Grama Panchayat Rules challenging the order passed by the Sub -Deputy Collector. The learned Sub -divisional Officer registered it as Election Case No. 1 of 1963 and after perusing the relevant records (including the report of the Sub -Deputy Collector) and after scrutinising the ballot papers held that on of the ballot papers was wrongly declared invalid by the Presiding Officer and that it should have been counted in favour of the opposite party No. 2 Sarbeswar Mohanty. Hence according to him Sarbeswar got ten valid votes whereas the rival candidate, namely the Petitioner (Upendranath Mahakud) got only 9 votes. There was therefore no tie and no question of casting a lot. He therefore declared Sarbeswar Mohanty to be validly elected as Sarpanch of the said Grama Panchayat.

(2.) THE sole contention urged by Mr. B. Mohapatra for the Petitioner is that in deciding an election dispute under Rule 24 of the Orissa Grama Panchayat Rules, the Sub -divisional Officer was acting as a Judicial Officer and that under the rules of natural justice, be should have given notice to the Petitioner and given him an opportunity of being heard before passing an order prejudicial to him.

(3.) IT is too elementary that no judicial order can be passed so as to affect adversely the right of a party unless he is given a reasonable opportunity of being heard. Therefore we must hold that in this case the Sub -divisional Officer ought to have given notice to the Petitioner and heard him in full before allowing the election petition of the rival candidate.