ULLASH CHANDRA NAYAK Vs. HARIHAR BISWAL

JUDGEMENT

(1.) THE petitioner along with four others filed their nomination before the Grama Panchyat Officer, Patalda Grama Panchayat, P. S. Kakatpur, District Puri, who was also the Election Officer of the said Panchayat, to contest the election for the office of the Sarpanch. Two other candidates who Had filed their nomination withdrew their candidature. The nomination paper of opp. party No. 1 was rejected on the ground that he was a defaulter in respect of some dues of a co -operative society. Therefore, there was a contest amongst three candidates including the petitioner. The petitioner was declared elected as the Sarpanch of the aforesaid Grama Panchayat. Opp. party No. 1 thereafter filed an application before the Munsif, Puri, Under Section 31 of the Orissa Grama Panchayat Act, 1964 challenging the rejection of his nomination paper and praying for a declaration that the election of the petitioner was invalid. The said application was registered as Misc. Case No 59/84 in the Court of the Munsif, Puri, which was dismissed after due enquiry by an ex parte order passed by the learned Munsif on 27. 6. 1984 (vide Annexure -1). Opp. party No. 1 preferred Misc. Appeal No. 40/84 in the Court of the District Judge, Puri, Under Section 38(4) of the Orissa Grama Panchayat Act challenging the order of the learned Munsif in Annexure -1. According to the petitioner no notice of the said appeal was ever served on him as a consequence of which he could not appear to contest the appeal. The learned District judge heard the Misc. Appeal ex parte and allowed the same by his order dated 24 -11 -198.4 vide Annexure -2 declaring that the election of the petitioner was invalid and that a casual vacancy has occurred in the office of the Sarpanch of the said Grama Panchayat. The Collector, Puri, by his order dated 28 -1 -1985 (Annexure -3) directed the petitioner to hand over the charge of the office of Sarpanch to the Naib Sarpanch persuant to the aforesaid order of the learned District judge. The petitioner alleges that the came to know about the misc. appeal and its result only after the aforesaid order of the Collector, was served on him. The petitioner thereafter an application purporting to be one under Order 41, Rule 21, CrPC, on 2 -1.1985 praying for rehearing;of the said Misc. Appeal No. 40/84 on the gruund that the appeal notice was suppressed at the instance of the present opp. party No., 1 , for whch he has been unduly prevented from appearing and contesting the appeal. The said application was registered as Misc. Case No. 3/85 in the Court of the District Judge, Puri. He also filed an applies Lion praying for stay of the order of the District Judge in Annexure -2 and their order of the Collector (Annexure -3). The learned District Judge, however, rejected the petition for stay by his order dated 16. 2. 1985 against which the petitioner moved this Court in OJC No. 434/85. Having heard the parties this Court by its order dated 18 -3 -1985 directed the District Judge, Puri, to dispose of Misc. Case No. 3/35 arising out of the Misc. Appeal No. 40/84 within a fortnight from the date of receipt of the order. Tilll then operation, of the order passed in Misc. Appeal No. 40/84 was stayed by this Court.

(2.) IN pursuance to the order of this Court in OJC No. 484/85 the learned District judge, Puri, took up the hearing of Misc. Case No. 3/85 in which the present petitioner examined three witnesses including himself in support of his case that no appeal notice was ever served on him. The present opp. party No. 1 also examined two witnesses to prove that the appeal notice was served by affixture as the petitioner refused to accept the notice after the same was made over to him and the contents thereof was read over to him. The learned Discrict Judged by his order dated 6 -4 -1935 (Annexure -4) dismissed the Misc. Case No. 3/85 holding that the petitioner was duly served with the appeal notice. The aforesaid order of the District Judge in Annexure -4 has been impugned in this writ application.

(3.) THE petitioner as a matter of abundant caution has also filed a misc appeal in this Court against the order of the learned District Judge in Misc. Case No. 3/85. In stead of examining as to whether the grievance of the petitioner comes within the purview of the writ jurisdiction of this Court, we proceed to examine the sufficiency or otherwise of the alleged service of appeal notice In this writ application by the consent of parties in view of the pendency of the aforesaid misc. appeal in which the said question is permissible to be gone into and disposed of which would follow the result of this writ application.