PARAMESWAR DAS Vs. DHIRENDRA MALLICK

JUDGEMENT

(1.) The Election Commissioner under the Orissa Panchayat Samiti Act, 1959 (Orissa Act 7 of 1960) (hereinafter referred to as the 'Act') having refused the prayer to be added as a party to the election petition, the petitioner has approached this Court in this writ application to quash the order (Annexure-2) in exercise of the extraordinary jurisdiction by issuing a high prerogative writ under Arts.226 and 227 of the Constitution.

(2.) Opposite Party Nos. 2 and 3 were candidates contesting the election to the office of Chairman of Rajkanika Panchayat Samiti. Opposite Party No. 2 was declared elected by notification dt 22-2-1984. Opposite Party No. 1 who was an elector eligible to vote at the election presented an election petition for declaring the election of opposite party No. 2 as void and for declaring opposite party No. 3 as elected. The said petition was registered as Misc. Case No. 37 of 1984 (Election). The case was posted for hearing to 8-8-1984. On 6-8-1984 the petitioner who was also an elector filed an application to be added as party. Opposite party No. 2 filed an objection to the application. Opposite Party No. 1, however, in his rejoinder supported the application of the petitioner. The Election Commissioner after hearing the parties refused the prayer of the petitioner to be added as a party.

(3.) It is not disputed that there is no specific provision under the Act providing an elector to be made an opposite party to an election petition. Mr. R. Mohanty, the learned counsel for the petitioner, submitted that in the absence of prohibition in the Act the petitioner ought to have been added as a party under the provisions of Civil Procedure Code which are applicable to a proceeding arising out of an election petition. Mr. S. Misra (1), the learned counsel for opposite party No. 1 on the other hand, submitted that all the provisions of Civil Procedure Code not being applicable, there is no scope for addition of the petitioner as an opposite party to the proceeding. Rival contentions of both the parties require careful consideration.