RATNAKAR MOHANTY Vs. JUGAL KISHORE PATNAIK

JUDGEMENT

(1.) The Last general election to the Orissa Legislative Assembly was held in the month of February, 1974 pursuant to a notification calling upon all Assembly Constituencies in the State of Orissa to elect members to the said Assembly. In the notification a period between 22nd to 29th of January, 1974 was fixed for filing of nomination papers. The date for scrutiny of nomination papers was specified to be held on 30-1-74. Polling for the election took place on 26-2-74 and the result was declared on 28-2-74.

(2.) Bhadrak Assembly constituency is a single member general constituency. From this constituency four nomination papers were duly filed in favour of the petitioner. The respondent also was nominated as a candidate for election from this constituency and nomination papers were duly presented on his behalf. At the time of scrutiny an objection was raised at the instance of one Balaram Sahu before the Returning Officer that the petitioner was disqualified for being chosen as a member of the Orissa Legislative Assembly as there subsisted contracts entered into by him with the Government of Orissa for execution of works under-taken by that Government under Section 9-A of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') Some certificate cases were produced before the Returning Officer which had been filed by the Block Development Officer, Bhadrak and the Sub-divisional Officer, Bhadrak against the petitioner for realisation of amounts which were alleged to be the amounts due under a contract entered into by the petitioner with the Government of Orissa for execution of works undertaken by the latter. Though those certificate cases did not relate to any contract or contracts as envisaged under Section 9-A of the Act, nevertheless, the Returning Officer held the petitioner to be disqualified under the said section and rejected his nomination papers.

(3.) Records of two certificate cases were produced before the Returning Officer. One related to Certificate Case No. 15/Misc. of 1968-69 and the other related to Certificate Case No. 33/P. of 1962-63. The Certificate Case No. 15/Misc. of 1968-69 was a demand under Section 121 (2) (a) of the Gram Panchayat Act in respect of dues under four alleged contracts. The Certificate Case No. 33/P. of 1962-63 related to an amount paid by the Block Development Officer, Bhadrak to Rahanj Gram Panchayat from the funds of Bhadrak Panchayat Samiti. The petitioner was then the Sarpanch of Rahanj Gram Panchayat under the Bhadrak Panchayat Samiti. The respondent in his written statement gave some instances of contract besides those referred to by the Returning Officer. Again, during trial, he amended his written statement by incorporating nine further instances of subsisting contracts between the petitioner and the State Government. Objection to this amendment was raised by the petitioner on the ground that the enquiry by the Tribunal must be confined to only those matters as to disqualification which were raised, before the Returning Officer and the field of enquiry cannot be enlarged by adducing evidence of further instances of subsisting contracts. This was overruled on the basis of a Supreme Court decision rendered in the case of Veluswami Thevar v. Raja Nainar, AIR 1959 SC 422, where it was held that the enquiry before the Tribunal is not restricted to the material placed before the Returning Officer and that all evidence bearing on that ground can be adduced before the Tribunal. The proceeding before the Tribunal being of the nature of an original proceeding as contrasted with a proceeding by way of an appeal, it is open to a party to put forward all other grounds of disqualification against the petitioner and not be restricted to one ground of disqualification raised before the Returning Officer. Thus, it appears that a party cannot only place more materials than those placed before the Returning Officer relating to the same ground of disqualification but also can raise other grounds of disqualification than the one raised before the Returning Officer.