NATABAR DEBATA Vs. DISTRICT MAGISTRATE AND ORS.

JUDGEMENT

(1.) IN the municipality of Dhenkanal there was an election held as provided in the Orissa Municipal Act,1950 and the rules made thereunder, for the election of Chairman and Vice -Chairman of Municipalities, on the 26th of December (sic), for the offices of Chairman as also for some other office then of. The Municipality had then, in all, thirteen Councillors all of whom were present on that day at the meeting held for this election. The then District Magistrate of Dhenkanal, who has been impleaded here as opposite party No. 1, was the president of the meeting. It is not disputed that at that meeting two of the Councillors, namely the Petitioner (Sri Natabar Debata) and opposite party No. 2 (Sri Narayan Jee) were duly nominated and seconded as the contesting candidates for the office of Chairman, and the votes of the Councillors had to be recorded accordingly for these two candidates. Rule 4 of the aforesaid rules relates to voting and result of elections. That rule inter alia provides that every Councillor wishing to vote shall be supplied with a voting paper on which the names of the candidates shall be printed, typed, or cyclostyled, or legibly written in the following form, both in English and Oriya:

(2.) OUT of the thirteen Councillors, two being the candidates themselves were not entitled to participate in the ballot as t provided in the aforesaid Rule 5 and one of the remaining eleven candidates attained from taking part in the election. Thus, only 10 Councillors in fact participated in the polling. After the poll was over the ballot box was opened and the votes were counted by the Presiding Officer, namely opposite party No. 1. In the course of his counting the Presiding Officer found that two of the ballot papers put in the ballot box were blank, and three others according to his judgment, were invalid. Thus, the fate of the election hang on the remaining five ballot papers. Out of these five, three were found to have been cast in favour of Sri Narayan Jee (Opposite Party No. 2) and two in favour of Sri Natabar Debata. Accordingly, Sri Narayan Jee was declared elected by the then Presiding Officer as the Chairman of Dhenkanal Municipality. These facts are not controverted and are all fully supported by the minutes that the president on that day, immediately thereafter, recorded, which forms Annexure II of his counter affidavit. Paragraph 10 of his minutes states that:

(3.) ACCORDINGLY , on these averments the Petitioner has obtained a the from this High Court calling upon the opposite parties to show cause why the aforesaid order of the District Magistrate dated the 28th December 1963 should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution, and why a writ in the nature of mandamus should not be granted commanding him to give a declaration that the Petitioner Sri Natabar Dabata has been duly elected to the office of Chairman, Dhenkanal Municipality, or at least there had been a tie and therefore recourse should be had to drawing of lots as provided in Rule 4 of the aforesaid Rules.