Bhagaban Sahoo vs Smt. Basanti Acharya and Others

R.N. Biswal, J.—The petitioner challenges the judgment and orders dated 30th April, 2009 passed by the learned District Judge, Ganjam-

Gajapati in Election Appeal No. 12 of 2008 reversing the judgment and orders dated 3.10.2008 passed by the learned Civil Judge (Senior

Division), Chhatrapur in Election Petition No. 4 of 2007.

Opp. party No. 1 was the election petitioner, petitioner was opp.party No. 4 and one Rabi Patra was opp. party No. 5 in the Election Petition

No. 4 of 2007 before the Civil Judge (Senior Division), Chhatrapur.

As per the case of the election-petitioner, she herself, opp. party No. 4 and opp.party No. 5 contested for the office of Samiti Member of

Mardakote Gram Panchayat. During scrutiny of the nomination paper, the candidature of opp. party No. 5 was challenged by opp. party No. 4 on

the ground that he be got a 3rd child after the cut-off date. Without taking note of the objection, the Election Officer (opp. party No. 3) accepted

his nomination. So, all the three candidates contested for the office. Opp. party No. 4 having secured the highest number of votes, was declared

elected as Samiti Member. So, the election-petitioner filed the above mentioned Election Petition with prayer to declare the election void. Opp.

party No. 5 did not contest the Election Petition, and, as such, he was set ex parte. Opp. party No. 4 contested election and filed counter. Issues

were framed, evidence was led and after hearing learned Counsel for the parties and going through the evidence on record, the Election Tribunal

dismissed the Election Petition vide judgment and orders dated 29.10.2008.

Being aggrieved with the said judgment and orders, the election-petitioner preferred Election Appeal No. 12 of 2008 before the learned District

Judge, Ganjam-Gajapati. After hearing learned Counsel for the parties, the learned District Judge allowed the appeal, set aside the judgment and

orders of the trial Court, declared the election of the returned candidate as void and further ordered that a casual vacancy was created, which was

to be filled up by the State of Orissa, represented by the Collector, Ganjam and the Election Officer-cum-B.D.O., Beguniapada (Respondent

Nos. 2 and 3 respectively) vide his judgment and orders dated 30.4.2009, on the ground that if the opp. party No. 5 had not been allowed to

contest in the election, then the petitioner and opp. party No. 1 alone would have in the election fray and in that event, it would be impossible to

predict or guess in whose favour the voters would have voted and the voting pattern also would have been changed. Being aggrieved with the said

judgment and orders, the returned candidate has preferred the present writ petition.

Learned Counsel for the petitioner submits that opp.party No. 5 did not contest the Election Petition before the Election Tribunal, and, as such,

he was set ex parte and was declared disqualified to contest the election. The petitioner is the returned candidate. He secured highest number of

votes numbering 1244, opp. party No. 1 (election petitioner) secured 676 and opp.party No. 5 secured 1165 number of votes. If opp. party No.

5 had not been permitted to contest the election, then how the voters would have voted in favour of opp. party No. 1 would be a question in the

realm of speculation. So, it cannot be said that the result of election was materially affected.

On the contrary, learned Counsel appearing for the opp. party No. 1 submits that in view of the provisions contained u/s 44-L(1)(e) and Sub-

section (2) thereof, the election of the petitioner as Samiti Member deserves to be declared void. It would be profitable to quote this provision,

which reads as follows:

44-L. Grounds for declaring election void- (1) The Subordinate Judge shall declare the election of a returned candidate void, if he is of the opinion

-

(a) xxx xxx xxx xxx

(b) xxx xxx xxx xxx

(c) xxx xxx xxx xxx

(d) xxx xxx xxx xxx

(e) that there has been any non-compliance with, or breach of any of the provisions of this Act or the rules made thereunder.

(2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or

informality on the part of the officer or the officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such

mistake, error, irregularity or informality has materially affected the result of the election.

(emphasis supplied)

As envisaged u/s 45(1)(v) of the Panchayat Samiti Act, one cannot contest for the office of Panchayat Samiti Member, who has more than two

children. Admittedly, opp.party No. 5 (Rabi Patro) begot a 3rd child after the cut-off date. So, he was not qualified to contest the election. But,

the Election Officer accepted his nomination, despite the objection made by the petitioner as found from the evidence on record and thereby

violated the provision contained u/s 45(1)(v) of the Panchayat Samiti Act. Now, the question is whether violation of the said provision materially

affected the result of the election.

Learned Counsel for opp. party No. 1 further submits that altogether 3085 votes were cast. If opp. party No. 5 had not been allowed to

contest, then the petitioner and opp.party No. 1 only would have in the election fray. One among them had been declared elected, who would

have secured more than 50% of the votes cast. In other words, out of the two candidates, the candidate securing 1543 votes, i.e., more than 50%

of the total votes cast, would have been declared elected. Since the petitioner secured only 1244 number of votes, he cannot be declared elected.

I am not in one with the submission of learned Counsel for the petitioner in this regard.

Burden of proof lies with the opp. party No. 1 to prove that because of allowing opp. party No. 5 to contest in the election, the result of the

election was materially affected, as envisaged u/s 44-L(1)(e) and Sub-section (2) thereof as quoted above. Had he (opp. party No. 5) not been

permitted to contest the election, then how the voters would have voted in favour of the candidates, would be a question in the realm of

speculation. Admittedly, the petitioner is the returned candidate. While he secured 1244 number of votes, opp. party No. 1 had secured only 676

number of votes. So, it cannot be definitely said that opp. party No. 1 would have secured more votes than the returned candidate, had opp. party

No. 5 not been allowed to contest the election.

Accordingly, the writ petition is allowed and while setting aside the judgment and orders passed by the appellate Court, the judgment and orders

passed by the Election Tribunal is hereby confirmed.

No cost.