ABHIMANYU PRADHAN Vs. TRILOCHAN ROUT

JUDGEMENT

(1.) ABHIMANYU Pradhan, petitioner in W.P.(C) 8183 of 2003 and Trilochan Rout, Petitioner in W.P.(C) 8281 of 2003 were two rival candidates contesting for the post of Panchayat Samiti Member from Belipada Samity Constituency under Banki -Dompara Panchayat Samiti. For the sake of convenience Abhumanyu Pradhan is described as the petitioner and Trilochan Rout as Opp. Party No. 1. The said post was notified on 7.1.2002. Nominations were scrutinized on 22.1.2002 and election was held on 27.2.2002. Opp. Party No. 1 was declared elected on securing majority of the votes. At the time of scrutiny of the nominations, petitioner raised objection to the candidature of the Opp. Party No. 1, but such objection was rejected by the Election Officer (Opp. Party No. 2). After declaration of result, petitioner filed Election Misc. Case No. 6 of 2002 before the Civil Judge (Senior Division) -cum -Election Commissioner, Banki in accordance with the provision in Section 44 -A red with Section 44 -B of the Orissa Panchayat Samity Act, 1959 (in short 'the Act'). Petitioner reiterated the ground of objections challenging to the eligibility of the Opp. Party No. 1 to contest and also alleged about corrupt practice. According to the petitioner, Opp. Party No. 1 while continuing as a sitting member of the said Panchayat Samiti, without resigning from the post filed nomination paper and, therefore, he was disqualified being holding an office of profit, having accepted work order for construction of 'Indira Awas', therefore, there was a subsisting contract between him and the Samiti and petitioner (sic.) being indebted to the Banki Central Co -operative Bank failed to repay arrear dues for a continuous period of 2 years and more and on that ground also he was disqualified to contest. Opp. Party No. 1 denied to the allegations of holding office of profit, existence of any subsisting contract and corrupt practice. In reply to allegations of default in payment of arrear loan dues, Opp. Party No. 1 explained that on 17.1.2002 he applied for one time settlement and on 19.1.2002 he was directed by the Co -operative Bank to make payment of Rs. 73,501/ - under One Time Settlement Scheme (in short 'O.T.S.') and accordingly on the self same date (19.1.2002) he cleared such outstanding dues and, therefore, he is not disqualified to contest for the post of Member of Panchayat Samiti.

(2.) BOTH the parties led oral and documentary evidence in support of their respective case. Learned Civil Judge framed as many as 7 issues respectively on (1) maintainability of the case; (2) existence of a subsisting contract; (3) if Opp. Party No. 1 was holding office of profit; (4) if Opp. Party No. 1 was disqualified under Section 45(1)(m -1); (5) did he resort to corrupt practice; (6) was the election in favour of Opp. Party No. 1 was a nullity and (7) to what relief the petitioner is entitled to.

(3.) THAT judgment was challenged by the petitioner in the Court of District Judge, Cuttack in Election Appeal No. 13 of 2002. As noted in the impugned judgment, the sole point which was canvassed before the Appellate Court was relating to disqualification of the petitioner under Clause (m -1) of Section 45(1) of the Act. Learned District Judge considered rival submission of the parties and the undisputed factual finding recorded by the Trial Court to the effect that as against the loan taken by Opp. Party No. 1 in 1993, Dispute case No. 47 of 1998 -99 was decreed by Assistant Registrar, Co -operative Society on 30.10.1998 for Rs. 89,347/ -and Execution Petition No. 175 of 2000 -01 was initiated to realise the decretal dues together with interest and on the basis of O.T.S. and payment in that respect made on 19.1.2002, the loan file of the Opp. Party No. 1 was closed on 18.6.2002. Learned District Judge accepting the interpretations of law made by the petitioner held that the aforesaid faet situation proves default in payment of the arrear dues to he Society for a continuous period of over two years and, therefore, on that ground alone the disqualification against Opp. Party No. 1 was enforceable so as to debar him to contest the election or to hold the post even after the election. Accordingly Learned District Judge set aside the judgment of Learned Civil Judge and declared election of Opp. Party No. 1 as invalid. Consequently he declared a casual vacancy.