PITAMBER NAYAK Vs. DISTRICT JUDGE

JUDGEMENT

(1.) PETITIONER Pitamber Nayak's election and continuance as a member of Bhandaripokhari Panchayat Samiti within the local limits of Bhadrak revenue district was questioned by Nara Narayan Jena (opp. party No. 2) before the learned District Judge, Balasore in Election Misc. Case No. 2 of 1997 Under Section 45 -B of the Orissa Panchayat Samiti Act, 1959 (in short, the 'Act'). Initially petitioner and opposite party No. 2 were elected as members of the Panchayat Samiti. Subsequently Pitamber Nayak was elected as Chairman of the said Panchayat Samiti. Nara Narayan Jena filed an election petition as aforesaid for a declaration that Pitamber Nayak was disqualified to be a member and his membership should cease on two grounds. namely (i) he was convicted in a criminal case and the conviction was in force by the time the nomination was filed: and (ii) he being a member of a Co -operative Society had failed to pay arrear accrued dues to that society continuously for more than a decade.

(2.) PITAMBER resisted the claim on the ground that the application Under Section 45 -B of the Act was misconceived. The said provision, according to him, related to post -election disqualifications as enumerated in Sub -section (2) of Section 45, and the alleged disqualification related to Sub -section (1) which relates to pre -election disqualifications and such question can be only raised in an election petition filed Under Section 44 -A before the Election Commissioner. In any event the conviction alleged was for causing simple hurt punishable Under Section 323 of the Indian Penal Code, 1860 (in short, 'IPC'), and it does not amount to an offence involving moral turpitude. In any event there has been acquittal directed by the appellate Court. Further there was no arrear accrued dues to be discharged, and he was not liable to pay any amount to the society and no notice was served on him claiming payment of alleged arrear accrued dues.

(3.) THOUGH during hearing of the writ application, the learned counsel appearing for Nara Narayan submitted that correctness of the view was not mooted before this Court as ultimately the learned District Judge has founded Pitamber to be disqualified. But the relevant factor is the position relating to conviction as on the date of filing of nomination, and therefore the view is indefensible.