Pravakar Behera vs Bibekananda Rout and Others

M.M. Das, J.—In this writ petition, the petitioner has called in question the judgment dated 2.2.2008 passed by the learned District Judge,

Cuttack in Election Appeal No. 5 of 2007 confirming the judgment dated 22.9.2007 passed by the learned Civil Judge (Junior Division), Athagarh

in Election Misc. Case No. 5 of 2007.

The facts leading to the present case are that the election to the office of Sarpanch of Viruda Grama Panchayat was scheduled to be held on

13.2.2007. The said seat of the Sarpanch was a general seat. As per the schedule of election, nomination papers were to be filed between

8.1.2007 to 15.1.2007. The opp. party no. 1 filed his nomination to contest the election to the office of Sarpanch of the said Grama Panchayat on

15.1.2007. Scrutiny of the nomination papers was held on 16.1.2007 and the Election Officer rejected the nomination paper of the opp. party no.

1 on the ground that he has not mentioned his caste in the space provided in the declaration column of the nomination paper. Election as scheduled

was held on 13.2.2007 and the petitioner was declared elected as the Sarpanch of the said Grama Panchayat. The opp. party no. 1 filed Election

Misc. Case No. 5 of 2007 before the learned Civil Judge (Junior Division), Athagarh challenging the illegal and improper rejection of his

nomination paper. The grounds of challenge to the election of the petitioner as Sarpanch were that the nomination paper of the opp. party no. 1

could not have been rejected by the Election Officer since as per Rule 29 (b) of the Orissa Grama Panchayat Rules, the Election Officer shall not

reject the nomination paper if he is otherwise satisfied that the identity of a candidate is not in doubt and the question of eligibility is not involved.

The other ground for challenge was that the nomination paper of the opp. party no. 1 being illegally rejected, the same has materially affected the

election, as the opp. party no. 1 was debarred from contesting the said election and, hence, the election becomes void as per section 39(c) of the

Orissa Grama Panchayat Act, 1964 (hereinafter referred to as ''the Act''). The petitioner, who was declared elected, on receiving summons in the

Election Misc. Case filed his objection to the same, inter alia, denying the statement made in the election petition that just after rejection of the

nomination paper, the election petitioner (opp. party no. 1) immediately intimated regarding such highhanded action of the Election Officer to the

Election Commissioner, Orissa, Bhubaneswar. The learned Civil Judge (Junior Division), Athagarh after framing the issues in his judgment dated

22.9.2007 arrived at the findings that Rule 29 of the Orissa Grama Panchayat Rules (for short, ''the Rules'') does not provide that non-mention of

caste is a ground for rejection of the nomination paper. He further found that the opp. party no. 3 in the Election Misc. Case, i.e., the Authorized

Election Officer, who scrutinized the nomination paper was found to have acted carelessly for which the Election Officer (opp. party no. 2 in the

Election Misc. Case) wrote to the Sub-Collector, Athagarh by his letter dated 2.2.2007 along with the photo copy of the nomination paper of the

opp. party no. 1 (election petitioner) with a request to take necessary action as deemed proper against the said Authorized Election Officer. On

the above findings and on the analysis of the materials, both oral and documentary, produced before the Election Tribunal, he held that it is crystal

clear that during scrutiny of the nomination paper, the opp. party no. 1 was not disqualified to contest the election on any ground as provided u/s

25 of the Act. From Ext. A/1, he concluded that the Authorized Election Officer had no doubt about the identity of the candidate and also the

question of eligibility of the candidate to contest the election was not involved. Accordingly, he declared the election of the present petitioner to the

office of Sarpanch, as null and void and allowed the Election Misc. Case. The petitioner carried an appeal to the learned District Judge, Cuttack in

Election Appeal No. 5 of 2007. The learned District Judge also referring to the materials on the point and further referring to section 39(1) of the

Act as well as the decision of this Court in the case of Abhan Singh @ Abhan Singh Rajput v. Election Officer, Raighara Grama Panchayat and

others, 57 (1984) CLT 451 and a decision of the Kerala High Court, found no error in the judgment of the learned Civil Judge (Junior Division),

Athagarh and confirmed the same.

Learned counsel for the writ petitioner vehemently urged that the opp. party no. 1 having not filled up the nomination paper in the prescribed

form properly and having omitted to mention his caste therein, the nomination paper was rightly rejected and the learned courts below should not

have interfered with the election of the petitioner as the Sarpanch.

Learned counsel for the opp. party no. 1, on the contrary, drawing the attention of this Court to the decision in the case of Abhan Singh (supra)

as well as the judgment of the apex Court in the case of Dilip Kumar Gon Vs. Durga Prasad Singh, contended that the seat of the Sarpanch in the

concerned Grama Panchayat being a general seat, non-mention of caste did not affect the qualification of the opp. party no. 1 to contest the

election to the office of Sarpanch in any manner. As per section 39(1)(c) of the Act, if the learned Civil Judge (Junior Division) finds that the

nomination paper has been improperly rejected or accepted, it is mandatory on his part to declare the election of a returned candidate void.

Learned counsel also referred to Rule 29 of the Rules, which provides that the Election Officer shall on the appointed time, date and place, receive

nomination papers for the office of Sarpanch in form No. 4 and scrutinize them in presence of the candidates, their proposer and seconders, if any,

who may be present. If he finds that the candidate is duly qualified in accordance with the provisions of section 11 of the Act and not disqualified

under any of the clauses of section 25 of the Act, he shall approve the candidature. It is also provided in clause (b) of the said Rule that the

Election Officer shall not reject the nomination paper merely on account of some discrepancy between the age, name or other particulars of a

candidate or his proposer or seconder as given in the nomination paper and in the electoral roll, provided that the Election Officer is otherwise

satisfied that the identity of a candidate is not in doubt and the question of eligibility is not involved.

In the case of Abhan Singh (supra), this Court, on a question of mentioning incomplete name in the nomination paper by the petitioner, i.e.,

mentioning his name as ""Abhan Singh"" instead of ""Abhan Singh Rajput"" referring to Rule 29 of the Rules, concluded that the identity of the

petitioner therein was not in question. Hence, the discrepancy in the nomination paper should not have been made a ground for rejection of the

same. In the case of Dillip Kumar Gon (supra), the Supreme Court, while dealing with Sections 33(2) and 36 of the Representation of Peoples

Act, 1951 on the facts that in the election to the Bihar Legislative Assembly from 147 Jamtara Assembly Constituency (General), one Abdul

Hamid filed his nomination paper without striking out the portion in the declaration part of the nomination paper meant for candidates of S.C./S.T.

contesting for a reserved seat and his nomination paper was rejected on the ground that failure of the candidate to delete the words ""S.C."" means

that he belongs to S.C. which is not true, laid down that in such circumstances, the rejection of nomination paper of Abdul Hamid was manifestly

erroneous. Emphasis was given by the Supreme court on the fact that the Constituency was a general Constituency and the seat for which the

candidates wanted to contest the election was not a reserved seat.

Similar is the fact in the present case. Hence, non-mentioning the caste by the opp. party no. 1 in no way brought him within the disqualification

clause u/s 25 of the Act and the Election Officer, who scrutinized the nomination paper, acted contrary to Rule 29 of the Rules in rejecting the

nomination paper of the opp. party no.1. This Court, therefore, finds no error in the judgments of the courts below, which are impugned in this writ

petition.

In the result, the writ petition being devoid of merit is dismissed, but in the circumstances without cost.