JAGABANDU BEHERA Vs. SUBDIVISIONAL OFFICER AND ANR.

JUDGEMENT

(1.) THIS is an application under Article, 226 of the Constitution by the Sarpanch of Gopiakud Grama Panchayat challenging the validity of certain actions taken by the members of the opposite party for holding fresh elections to the said Panchayat and also to the offices of Sarpanch of the said Panchayat.

(2.) THE material facts are these. The Petitioner was elected as a member of the said Panchayat sometime in from ward No. 10 and was also elected Sarpanch sometime in 1958. On 10 -10 -1960, fresh elections to the Panchayat took place, but the names of the successful candidates were not published in the Orissa Gazette as required by Rule 28 of the Orissa Grama Panchayat Rules mainly because, in respect of election to ward No. 10 there was a dispute which was first decided by the Sub - divisional Officer (and a stay order was obtained) under Rule 24 of the Orissa Grama Panchayat Rules. The matter was taken up before the High Court in an application under Article 226 the Constitution. That was finally decided on 6 -2 -1962 in O.J.C. No. 144 of 1961 and the election of the Petitioner's rival, Khetrabasi Samal (opposite party No. 4) to ward No. 10 was declared valid. Finally, on 20 -11 -1962, a list of the names, of the duly elected members of the Panchayat was published in the Gazette, but before that date one of the members namely, Nidhi Sudan Majhi had resigned from ward XIII and that vacancy has not been filled up.

(3.) GIVING the natural meaning to the words used in the proviso, they would mean that if after the expiry of the term of office of the members of the old Panchayat all the new members had been ejected or appointed prior to 16 -12 -1961 but the new members had not yet elected a Sarpanch or Naib Sarpanch, then, notwithstanding the main portion of Clause (b) of that section the new Panchayat members alone shall continue in office. Mr. M Mohanty however contended relying mainly on the words and the Gram Panchayat stands reconstituted occurring in the said proviso, that a Panchayat is constituted or reconstituted only from the date on which the names of the duly elected members are published in the Gazette as required by Rule 28. Here admittedly the names of the new Punches were published in the Gazette only on 20 -11 -1962 after the coming into force of 894 the amending Act of 1961. Hence according to Mr. Mohanty, the aforesaid proviso has no application and by virtue of the main portion of Clause (b) of Section 49(1) of Orissa Act 24 of 1961 and the Petitioner must be deemed to have continued in office as a member of the Grama Panchayat and also a Sarpanch, notwithstanding the fact that the new elections had taken place in 1961 and the names of the new members had been duly published in the gazette on 20 -11 -1962.