Nityananda Panda vs Raghunath Padhi and Others

Misra, J.—This is an application under Article 226 and 227 of the Constitution. The Petitioner and opposite party No. 1 were the rival candidates nominated for election as Chairman of Umri Panchayat Samiti in Koraput district. In the election, the Petitioner secured five and opposite party No. 1 four votes. Opposite party No. 1 filed an election petition before the Munsif, Jeypore, as the Election Commissioner, questioning the validity of the election and praying that he be declared as having been elected as the Chairman of Umri Panchayat Samiti. The Election Commissioner, by his order dated September 16, 1961, set aside the election of the Petitioner and declared opposite party No. 1 as the duly elected Chairman.

The Election Commissioner found that Gopinath Naik, who was a member of Umri Panchayat Samiti on the basis of his being the Sarapanch of Pujatiput Gram Panchayat u/s 16(1)(e) of the Orissa Zilla Parishad Act, 1959, had no right to propose the nomination of the Petitioner as he had ceased to he a member of the Gram Panchayat by reason of his holding an office of profit under the Stated Government as a teacher in the Aided Elementary School of Jayantagiri on the date of election. He held that the Petitioner not having been duly nominated, his election was invalid and opposite party No. 1 being the only other candidate for the election of Chairmanship was declared elected.

Mr. H.G. Panda, learned Counsel for the Petitioner advanced the following contentions:

(1) Gopinath Naik did not hold an office of profit under the State on the date of nomination, and as such he was entitled to continue as Sarpanch an a member of the Panchayat Samiti and was fully competent to propose the Petitioner;

(2) Even if Gopinath Naik held an office of profit, u/s 10(9)(c) of the Orissa Gram Panchayat Act, 1948, he shall not continue to be a member of the Gram Panchayat so far as Gram Panchayat Act is concerned; but the disqualification does not extend to his becoming a member of the Panchayat Samiti as Sarpanch under the Zilla Parishad Act. The Election Commissioner had no jurisdiction to hold that he ceased to be a member of the Gram Panchayat until he was so declared by the State Government by notification under Rule 35 of the Orissa Gram Panchayat Rules, 1949 ; and

(3) Assuming that the nomination of the Petitioner was invalid, the Election Commissioner should have set aside the entire election proceedings an have directed a fresh election without declaring opposite party No. 1 to have been duly elected under Rule 60(iii) of the Orissa Zilla Parishad (Conduct of Election, Election Disputes and Decision about Disqualification of Members) Rules, 1930.

The first contention of Mr. Panda that Gopinath Naik did not hold an office of profit under the State on the date of the filing of the nomination has no substance. The finding of the Election Commissioner is based on evidence and no error apparent on the face of the record has been brought to our notice to vitiate such finding. In the exercise of the Writ jurisdiction, the finding cannot be disturbed.

The second contention deserves closer scrutiny. Section 10(9)(c) of the Gram Panchayat Act prescribes that a person shall not continue to be a member of the Gram Panchayat, if he holds any office of profit under the State. Rule 35 of the Gram Panchayat Rules 1949, lays down that the State Government may by notification remove any Sarpanch if he is disqualified under Sub-section (9) of Section 10 of the Act. Mr. Panda''s argument is that Gopinath Naik has not been removed from the Sarpanchship by the State Government under Rule 35, and until Each removal is effected he validly continues as Sarpanch despite his holding (sic) office of profit as a teacher as there is no provision in the Zilla Parishad Act or Rules giving jurisdiction to the Election Commissioner to declare his continuance as Sarpanch illegal. It is true that the Zilla Parishad Act and Rules make no clear provision for removal of a Sarpanch; but the Election Commissioner has jurisdiction to examine whether the nomination is made by a person entitled to nominate. In Benudhar Dalai v. State of Orissa ILR 1958 Cutt 417 it was observed:

A collateral fact on the existence of which a Court or Tribunal gets jurisdiction to decide other questions should also, of necessity, be decided by the same Tribunal and the only difference between such decision on the collateral facts and the decision on other essential facts is that the former is not conclusive whereas the latter is made final and conclusive by the special statute creating jurisdiction .

This observation was made after exhaustive examination of the exposition of law made by Lord Esher, M.R. in Bunbury v. Fuller (1888) 21 Q.B.D. 313 and subsequent pronouncements of the Privy Council and of the Supreme Court. In this regard the Division Bench did not accept the principle laid down in AIR 1956 Pat 425 which has been subsequently reversed by the Supreme Court in an unreported decision. The aforesaid principle fully applies to the facts of this case. The Election Commissioner had full jurisdiction to determine whether Gopinath Naik was disqualified from proposing the nomination as he holds an office of profit under the State. But this finding is not conclusive for remitting him from the Sarpanchship under the Gram Panchayat act until he has been so removed in accordance with Rule 35 of the Gram Panchayat Rules. We would accordingly reject the second contention.

The last contention of Mr. Panda has also no substance. Under Rule 59(2) of the Zilla Parishad Rules, if the Election Commissioner finds that the election of any person is invalid, it shall either:

(a) declare a casual vacancy to have been created; or

(b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate....The Election Commissioner has declared opposite party No. 1 to have been duly elected under Rule 59(2)(b). Mr. Panda attacks this as without jurisdiction placing reliance on Rule 60(iii) which lays down that notwithstanding anything contained in the preceding rules, if the Election Commissioner, in the course of hearing of an election petition, is of opinion that the evidence discloses that the result of election has been materially affected by improper acceptance or refusal of a candidate''s nomination; be shall set aside the whole proceedings and pass an order to this effect....It is clear that Rule 59 is subject to Rule 60. But to come within the mischief of the latter sale, it is incumbent upon the Petitioner to establish that the result of the election has been materially affected by the improper acceptance of a candidate''s nomination. In this case, only two candidates filed nomination papers for the election of the Chairmanship. As the nomination of the Petitioner was rightly rejected, opposite party No. 1 was the only other candidate left for Chairmanship and he was to be declared elected uncontested. Rule 31(1) of the Zilla Parish ad Rules is clear to the effect that if there is only one duly nominated candidate there shall be no ballot and he shall be declared to have been elected. As a result of the invalid nomination of the Petitioner, opposite party No. 1 in the eye of law should be deemed to be the only one duly nominated candidate. There was improper acceptance, of the Petitioner''s nomination; but the result of the election has not been at all affected by it. This contention accordingly fails.

All the contentions having failed, the application is dismissed with costs to opposite party No. 1 only. Hearing fee is assessed at Rs. 100/- (rupees one hundred).

Narasiam, C. J.

I agree;