ORISSA HIGH COURT : CUTTACK
W.P.(C) NO. 585 OF 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Smt. Prafulla Biswal ...... Petitioner
-Versus-
Smt. Banajosna Barik and others ...... Opp. Parties
For Petitioner : M/s. Mahadev Mishra,
C.Mallik & Mamata Mishra.
For Opp. Parties: M/s. P.K. Sahoo,
A.C. Mohapatra &
A.K.Panda.
(For O.P. 1 )
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Date of order: 02.09.2010
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PRESENT:
THE HONOURABLE SHRI JUSTICE M. M. DAS
M.M. DAS, J. This writ petition has been filed by the petitioner, who
was the election petitioner in Election Case No. 2 of 2007 challenging
the election of the opp. party no. 1 to the office of Sarpanch of
Chahapara Grama Panchayat on the ground that the opp. party no.
1, who was declared elected was disqualified to contest the election to
the office of Sarpanch under the provisions contemplated in section
25 (i) (v) of the Orissa Grama Panchayat Act, 1964. It was alleged
that the opp. party no. 1 has more than two children born after the
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cut-off date. The learned Election Tribunal allowed the Election Misc.
Case declaring the election of the opp. party no. 1 as void and illegal
and further holding that in order to save wastage of time and money ,
since the petitioner was the only contesting candidate against the
opp. party no. 1, she is declared elected as Sarpanch of the said
Grama Panchayat in view of section 38 (2) (b) of the Act.
2. A Civil Suit was filed by the petitioner for a declaration
that Priyanka Priyadarshini is the daughter of opp. party no. 1
through her husband Saroj – opp. party no. 4.. The judgment of the
learned Election Tribunal was challenged in appeal and the learned
appellate court while confirming the judgment of the learned Election
Tribunal with respect of the disqualification of the opp. party no. 1 to
contest the election to the office of Sarpanch, reversed the finding of
the learned Election Tribunal declaring the petitioner to be the elected
Sarpanch. The said order was challenged by the opp. party no. 1 in
W.P. (C) No. 19200 of 2008, wherein this Court without interfering
with the said order with regard to disqualification of the opp. party
no. 1 has disposed of the said writ petition subject to the result of
the present writ petition.
` 3. Mr. Mishra, learned counsel for the petitioner
submitted that the learned appellate court mis-interpreting the
provision in section 40 of the Act has committed an error in
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concluding that there should be a fresh election to fill up the vacancy
of the office of Sarpanch and reversing the finding of the learned
Election Tribunal and declaring the petitioner to be the elected
Sarpanch.
4. It appears from the judgment of the learned appellate
court that for his conclusion to hold a fresh election and to reverse
the finding of the learned Election Tribunal declaring the petitioner as
an elected Sarpanch was arrived at relying upon the decision in the
case of D.K.Sharma v. Rama Sharan Yadav and others, AIR 1993
S.C. 95.
5. Section 38 (2) (b) of the Act gives jurisdiction to the
Election Tribunal deciding an election dispute to declare another
candidate to have been duly elected. Section 40 of the Act, under
Clause 1 (b), provides the ground on which the Tribunal can declare
the petitioner or such other candidate, as the case may be, as duly
elected after declaring the election of the returned candidate to be
void . The aforesaid provisions of the Act are quoted herein below:
“38. Decision of (Civil Judge) (Junior Division)-
(1) xx xx xx
(2) If the Civil Judge (Junior Division)
finds that the election of any person was invalid, he
shall either-(a) xx xx xx
4(b) declare another candidate to have been duly
elected;Whichever course appears, in the circumstances of
the case to be more appropriate and in either case,
may award costs at his discretion.(3) & (4) xx xx xx”
“40. Grounds for which a candidate other than
the returned candidate may be declared to have
been elected- If any person who has lodged a
petition, has in addition to calling in question the
election of the returned candidate, claimed a
declaration that he himself or any other candidate
has been duly elected and the (Civil Judge (Junior
Division)) is of opinion:(a) that in fact the petitioner or such other
candidate received a majority of the valid
votes; or(b) that but for the votes obtained by the
returned candidate by a corrupt practice
the petitioner or such other candidate
would have obtained a majority of the valid
votes;he shall after declaring the election of the
returned candidate to be void declare the
petitioner or such other candidate, as the case
may be, to have been duly elected”.
6. A bare reading of the above provisions goes to show
that section 38 relates to the decision, which can be rendered by the
learned Civil Judge (Jr. Division) after making such enquiry in the
election case and section 40 provides the grounds for which a
candidate other than the returned candidate may be declared to
have been elected. Section 40 (b) deals with a case, where eliminating
votes obtained by a returned candidate, who adopts corrupt practice,
the petitioner or such other candidate would have obtained a majority
5of the valid votes, the Tribunal can declare such candidate as elected
after declaring the election of the returned candidate to be void. It ,
therefore, manifests that section 40 ipso facto does not apply to the
fact of the present case which was not a case on the allegation of
corrupt practice as defined in section 41 of the Act.
7. In the case of D.K. Sharma (supra), the Supreme
Court was considering the judgment of the High Court in not
declaring the appellant therein as elected candidate to Bihar
Legislative Assembly from Goh Constituency at the poll held in
February, 1990. The appellant therein relied upon the decision in the
case of Konappa Rudrappa Nadgouda v. Vishwanath Reddy
(1969) 2 SCR 90 : (AIR 1969 SC 604) before the High Court and
taking cue from the said decision, the appellant led evidence before
the High Court to show that the voters were given sufficient notice
and they were aware of the disqualification of the respondent no.1
therein, before they voted for him . From the facts of the case, it
appears that during pendency of the election case before the High
Court, the President of India in exercise of the power under sub-
section (3) of section 8-A of the Representation of People Act, 1951,
issued a notification on 3.7.1990 which was published in the Gazette
of India on 9.7.1990 disqualifying the respondent no. 1 for a period of
six years from October 30th, 1984. On the basis of the said
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Presidential notification the Speaker of the Bihar Legislative Assembly
by notification dated 18.7.1990 declared the seat from Goh Assembly
Constituency vacant. The appellant – petitioner, who was the election
petitioner before the High Court, thereafter, confined his election
petition to the second relief claimed therein for declaring him as the
elected candidate from the said Constituency. It further appears that
in the said election case, the result of which was challenged before
the High Court, more than two candidates contested. The Supreme
Court, while discussing the facts of the said case referring to the
decision in the case of Konappa Rudrappa Nadgouda (supra), found
that in Konappa’s case there were only two candidates in the field.
Vishwanath Reddy was declared elected to the Mysore Legislative
Assembly and Konappa who was a contesting candidate challenged
his election on the ground that Vishwanath Reddy was disqualified
from standing as a candidate for election and for an order declaring
that he (Konappa) be declared elected. The Supreme Court in the
said case accepted the contention of Mr. Konappa in the facts of that
case, where there were only two candidates in the field observing as
follows:-
“If the number of candidates validly
nominated is equal to the number of seats to be
filled, no poll is necessary. Where by an
erroneous order of the Returning Officer poll is
held which, but for that order, was not necessary,
the Court would be justified in declaring those
contesting candidates elected, who, but for the
7order, would have been declared
elected……………… When there are only two
contesting candidates, and one of them is under a
statutory disqualification, votes cast in favour of
the disqualified candidate may be regarded as
thrown away, irrespective of whether the voters
who voted for him were aware of the
disqualification. This is not to say that where
there are more than two candidates in the field
for a single seat, and one alone is disqualified, on
proof of disqualification all the votes cast in his
favour will be discarded and the candidate
securing the next highest number of votes will be
declared elected. In such a case, question of
notice to the voters may as assume significance,
for the voters may not, if aware of the
disqualification have voted for the disqualified
candidate”.
Interpreting thus, the Supreme Court in the case of D.K.Sharma
(supra) dismissed the appeal filed by the appellant for declaring him
as elected candidate in view of the fact that there were more than
two candidates contesting the said election.
8. Learned counsel for the opp. party no. 1 also relied
upon the decision in the case of Prakash Khandre v. Dr. Vijaya
Kumar Khandre and others, AIR 2002 SC 2345 and other case laws
in defence of the judgment of the appellate court in respect of
reversing the finding with regard to declaring the writ petitioner as
elected, by the Election Tribunal. In the case of Prakash Khandre
(supra), it would also be seen that there were not more than two
candidates contesting the election.
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9. In the present case, however, there were only two
candidates who contested the election for the office of Sarpanch, i.e.,
the petitioner and the opp. party no.1. The ratio of the decision in the
case of Konappa Rudrappa Nadgouda (supra), therefore, is squarely
applicable to the facts of the present case and it is seen that the
learned appellate court has mis-directed himself in relying upon the
decision in the case of D.K. Sharma (supra) where, the facts were
different, i.e. there were more than two candidates in the election
fray.
10. In view of the above analysis of facts, this Court finds
that the learned Election Tribunal was correct in exercising his
powers under section 38 of the Act by declaring the petitioner as the
elected Sarpanch of Chahapara Grama Panchayat on the g round
that holding a fresh election will amount to wastage of public money
as well as wastage of time.
11. In the result, therefore, the portion of the judgment of
the appellate court passed in Election Appeal No. 31 of 2001
reversing the finding and direction of the learned Election Tribunal,
i.e., Civil Judge (Jr. Division), Salipur in Election Case No. 2 of 2007
declaring the petitioner as elected to the office of Sarpanch is set
aside and the judgment of the learned Election Tribunal with regard
to such declaration is restored. The petitioner is, therefore, declared
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as the elected Sarpanch of the Chahapara Grama Panchayat, who
shall assume the office immediately.
13. The writ petition is accordingly allowed.
……………………
M.M. Das, J.
Orissa High Court, Cuttack.
September 2nd, 2010/Biswal
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