GOUR CHANDRA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner who is one of the elected members of the Ganjam Zilla Parishad has filed this application under Article 226 of the Constitution of India praying for declaration that opposite parties 5 to 10 have ceased to hold office as members of the Zilla Parishad. He has also prayed for a direction to the opposite parties 2 and 3 to fill up those vacant seats held by those opposite parties.

(2.) The case of the petitioner is that results of election to the Ganjam Zilla Parishad (hereinafter referred to as 'the Parishad') were duly published on 29-1-1997 in the Official Gazette and its elected members were deemed to have held office with effect from that date. The Additional District Magistrate, Ganjam in letter No. 1084/GP dated 4-2-1997 (Annexure-1) noticed all the elected members to attend the D.R.D.A. Conference Hall, Chatrapur on 15-2-1997 at 10.30 A.M. to take oath of allegiance. Pursuant to the said notice, 36 elected members out of 69 took their oath and the first meeting of the Parishad was held on that day itself and one Smt. Renubala Pradhan was elected as the President of the Parishad. The second meeting of the Parishad was held on 25-2-1997 at 11.00 A.M. On that day (25-2-1997) 26 other elected members took their oath. In the said meeting, one Smt. Shanti Devi was elected as the Vice-President. The third meeting of the Parishad was held on 1-5-1997 and one more elected member took oath on that day. The opposite parties 5 to 10 who were present in all the aforesaid three meetings did not take oath or affirmation of allegiance to the Constitution of India. As a consequence, they have ceased to be members of the Parishad on their failure to take oath or affirmation at any one of the first three meetings of the Parishad as envisaged in sub-section (2) of Section 36 of the Orissa Zilla Parishad Act, 1991 (hereinafter referred to as 'the Act').The fourth meeting of the Parishad was held on 30-7-1997. The opposite parties 5 to 10 although have ceased to be the members of the Parishad, the Collector, Ganjam who is the Chief Executive Officer of the Parishad illegally wanted to administer oath. It was pointed out by some members that opposite parties 5 to 10 have ceased to be the members of the Parishad and they should not have been allowed to attend the meeting. On account of such objection, the attempt of the Collector to administer oath to them was foiled. In the meeting, it was decided that the dispute should be referred to the State Government for its decision but till now, no decision has been communicated from the Government level. The State Election Commission, Orissa, however, in his letter dated 19-8-1997 (Annexure-3) communicated its views stating, inter alia, that as per the executive instructions, the respective Collectors of the districts were to complete administering oath of office to the elected members of the Zilla Parishad and the concerned Collector having not done so, his lapse "should not negate the people's mandate in favour of the elected members" particularly when the Collector allowed them to attend the meetings and the six elected members could be administered oath of office. The State Election Commission further opined, as it appears from the aforesaid letter (Annexure-3) that if any one thinks that those six members have ceased to hold office, he can file an election dispute. As the opinion of the State Election Commission was unwarranted and legally untenable the petitioner made representation to the principal Secretary to the Government in the Panchayati Raj (G.P.) Department on 3-10-1997 (Annexure-4) requesting him to take necessary steps to fill up the vacancies caused on account of cessation of opposite parties 5 to 10 to be members of the Parishad. The Collector-cum-Chief Executive Officer in letter dated 1-10-1997 (Annexure-5) however wrote to the Government that since no clarification has yet been received, he would permit opposite parties 5 to 10 to take part in the deliberations of the Parishad scheduled to be held on 4-10-1997 in anticipation of the Government order. The opposite parties 5 to 10 being encouraged by the Collector-cum-Chief Executive Officer came to the meeting on 4-10-1997 but the Parishad decided not to allow them to take their seats as they have already ceased to be members.According to the petitioner, the provisions contained in sub-section (2) of Section 36 of the Act are mandatory and the opposite parties 5 to 10 having not taken their oath or affirmation as required thereunder within the prescribed time have ceased to hold office and their seats have fallen vacant.

(3.) The Collector-cum-Chief Executive Officer, Ganjam Zilla Parishad and the Project Director-cum-Ex-Officio Secretary, Ganjam Zilla Parishad, Chatrapur who are opposite parties 2 and 3 have filed their counter affidavit. Their case is that the first meeting of the Parishad was held on 15-2-1997 to elect the President and the second meeting was held on 25-2-1997 to elect the Vice-President. In both the aforesaid meetings, no other transaction except the election of President and Vice-President was carried out. The third meeting was fixed to 23-4-1997 but the same was postponed due to demise of Biju Patnaik. The third meeting was held on 1-5-1997 where a resolution was brought by the President to pay tributes to the departed soul of late Biju Patnaik by cancelling all the items of agenda fixed earlier. Therefore, no reasonable opportunity was made available in the first three meetings for opposite parties 5 to 10 to take their oath. In the fourth meeting held on 30-7-1997 one of the members of the Parishad raised objection about the continuance of the opposite parties 5 to 10 as members. Accordingly, it was resolved to move the Government seeking clarification in the matter. On that day (30-7-1997) although opposite parties 5 to 10 were present, they could not take oath in view of the opposition raised by some members of the Parishad. The opposite parties 2 and 3 have further stated in the counter-affidavit that in view of the opinion of the State Election Commission, such members who have not been able to take their oath can now be administered oath.The opposite party No. 4, the President of the Parishad has also filed counter-affidavit. Her case is that on 30-1-1997 the names of elected members of the Parishad were notified and as such, all the elected members were deemed to have held office from that day. On 4-2-1997 the Election Officer, Chatrapur as per Annexure-1 informed all the elected members to attend the D.R.D.A. Conference Hall on 15-2-1997 to take oath of allegiance. The Election Officer also issued notice as required under Rule 48(1)(i) of the Orissa Zilla Parishad Election Rules, 1994 (Annexure-A/4) stating that the first meeting of the parishad would be held on 15-2-1997 at 11.00 A.M. in the D.R.D.A. Conference Hall, Chatrapur "to elect the President of the Parishad". On the date fixed (15-2-1997) out of 69 elected members, 36 took their oath, but opposite parties 5 to 10 although were present did not avail the opportunity. The opposite party No. 4 was elected as President on that day (vide proceedings dated 15-2-1997 at Annexure-C/4). On the case day, the Election Officer issued notice (Annexure-D/4) in the prescribed form for holding the second meeting of the Parishad on 25-2-1997 with the agenda "to elect the Vice-President of the Parishad". Opposite Parties 5 to 10 were also present on that day (25-2-1997) but they did not take oath or affirmation although other 26 elected members of the remaining 38 who had got taken oath earlier took their oath. As per the agenda, the election for the post of Vice-President took place on the date fixed and one Smt. Shanti Devi was elected as the Vice-President (vide proceeding dated 25-2-1997 at Annexure-E/4). Notice for the third meeting of the Parishad was issued by the President on 21-4-1997 (Annexure-F/4) fixing the date to 1-5-1997. On the same day (21-4-1997) the Secretary of the Parishad issued notice for the third meeting to be held on 1-5-1997 (Annexure-G/4). On 1-5-1997, the third meeting was duly held under the Chairmanship of the President and the Collector-cum-Chief Executive Officer of the Parishad and other members were present. Cancelling other items of the agenda, a resolution condoling the sad demise of Biju Patnaik was moved and passed after paying tribute to the departed soul (Annexure-H/4). The opposite parties 5 to 10 also did not take their oath on that day. Thereafter, the Secretary of the Parishad issued notice dated 15-7-1997 for the next meeting fixing 20-7-1997 (Annexure-J/4). As per the programme, the fourth meeting took place on 30-7-1997 and the proceedings of the third meeting dated 1-5-1997 were duly approved (Annexure-K/4).