SURESH BARIK Vs. PURNA CHANDRA ROUT

JUDGEMENT

(1.) THIS Writ Petition is directed against the Judgment dated 30.8.2005 passed by the District Judge -Cum -Election Tribunal, Sundargarh in Election Petition No. 5 of 2003 upholding the election of O.P. No. 1 -Purna Chandra Rout to the office of the Councillor of Ward No. 9 of Rajgangpur Municipality and dismissing the election petition filed by the Petitioner. The Petitioner challenged the election on the ground that the same was invalid, improper and unlawful as O.P. No. 1 was disqualified under Clauses (xvi) and (xvii) of Section 16(1) of the Orissa Municipal Act, 1950 (for short, the 'Act') for having more than one spouse living and for having more than two children at the time of filing the nomination paper for the election.

(2.) BRIEFLY stated, the case of the Petitioner is that election of Councillors of different wards of Rajgangpur Municipality was notified to be held on 19.9.2003, the last date for filing nomination papers being 30.8.2003 and the date of scrutiny of the nomination papers being 2.9.2003. The Petitioner along with O.P. No. 1 - Purna Chandra Rout and some others filed their nomination papers for the Office of Councillor of Ward No. 9 of Rajgangpur Municipality. On the date of scrutiny of nomination papers, i.e., 2.9.2003, the Petitioner filed a written objection to the candidature of O.P. No. 1 before the Election Officer, Rajgangpur Municipality (O.P. No. 2) alleging that O.P. No. 1 was disqualified as per 8.16 (1)(xvi) of the Act for having more than one spouse living. O.P. No. 1 filed an affidavit before the Election Officer stating on oath that he has neither has more than one spouse living nor has he got more than two children. According to the Petitioner, the allegation was false. The Election Officer, on the basis of the said affidavit rejected the objection filed by the Petitioner and held the nomination paper of O.P. No. 1 as valid. The election was held on 19.09.2003 and, O.P. No. 1 was declared elected as the Councillor from Ward No. 9 for having secured the highest number of votes, i.e., 469. The present Petitioner was declared to have lost the election for having secured less number of votes, i.e., 350.

(3.) O .P. No. 1 filed his show cause denying the assertions and allegations made by the Petitioner in the election petition, so also questioning the maintainability of the case. O.P. Nos. 2 and 3, i.e., the Election Officer and the Returning Officer, were set ex parte as they did not contest the case.