BINOD NAYAK Vs. DASARATHI PADHI FB

JUDGEMENT

(1.) Binod Nayak, the petitioner, and Dasarathi Padhi, opposite party No. 1, contested election for the seat of Chairman of Dhamnagar Panchayat Samiti in the district of Bhadrak. The Election Officer, on coming to the conclusion that the petitioner as well as opposite party No.1 had secured equal number of votes, drew a lot and on such drawal of the lot, the petitioner was declared as elected on 29-6-92. The petitioner assumed charge on the next day. The election has been set aside on the ground that one invalid vote was wrongly counted in favour of the petitioner and hence there was no valid reason to draw a lot. Consequently, on the basis of the difference of one vote, opposite party No. 1 was declared elected, he took charge of the office and is on the saddle till this day. In this writ petition, the order passed in the election petition holding the vote invalid is impugned.

(2.) A Division Bench of this Court, while admitting this petition, felt that the point involved needs consideration by a larger Bench in view of its general public importance. No question of law as such has been framed, but the referring order indicates that the Division Bench of this Court in the case of Golak Behari Chhotrai v. Harihar Jena, (1970) 36 Cut LT 699, may need reconsideration in view of the decision of the Supreme Court in the case of H. V. Kamath v. Ahmad Ishaque, AIR 1955 SC 233, and the subsequent Supreme Court judgments.

(3.) Now, electorate college for the election of Chairman consists of a small number of Panchayat Samiti members who, in the instant case, were 26 in number. This election is governed by the Orissa Panchayat Samiti Election Rules, 1991 (";the Rules";) framed by the Government under Section 57 of the Orissa Panchayat Samiti Act, 1959 (";the Act";). Part VI of the Rules deals with the election of Chairman / Vice-Chairman of the Panchayat Samiti Rules 41 and 43 only are relevant for our purpose. We reproduce them here for ready reference: -