Raghunath Sahoo vs Collector and District Magistrate and Others

A.S. Naidu, J.—The petitioner is the elected Sarpanch of Salabana Grama Panchayat in the district of Keonjhar. His election has been assailed before the Civil Judge (JD), Anandapur in Election CMA No. 8 of 2007 which is subjudice. He is aggrieved by the fact that during pendency of the said election dispute, the Collector, Keonjhar has initiated a proceeding u/s 26 of the Orissa Grama Panchayat Act and has issued a notice to him vide Annexure-4 to show cause as to why he should not be declared disqualified to hold the post of Sarpanch. According to him such action amounts to double jeopardy and he is being subjected to unnecessary harassment. Therefore he has prayed to quash the said notice Annexure-4.

Opposite parties 4 to 9 have entered appearance and have filed a counter-affidavit and so also opposite party No. 3. According to them there is no bar for initiating a proceeding u/s 26 of the G.P. Act during pendency of the election dispute initiated u/s 30 of the Act. Both the proceedings can simultaneously be initiated as the provisions of the aforesaid two Sections are distinctly separate.

This Court heard learned Counsel for the petitioner and the contesting opposite parties at length and perused the materials available on record. Section 30 of the G.P. Act stipulates that no election of a person as a member of the Grama Panchayat or as Sarpanch or Naib-Sarpanch held under the said Act shall be called in question except by an election petition presented in accordance with the provisions of the Act.

Section 34 stipulates that the petitioner may, in an election dispute in addition to claiming a declaration that election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.

Section 39 provides the grounds for declaring an election void. The proviso to the said section stipulates that in relation to matters covered by Section 39(a), the Civil Judge (JD) shall have due regard to the decision, if any, made u/s 26 before making a declaration under the said section.

Section 26 of the Act on the other hand deals with the procedure for declaring a Sarpanch or a Naib-Sarpanch or any other elected Member of a Grama Panchayat to have become disqualified. For the sake of brevity and better appreciation said Section 26 is quoted hereinbelow:

Procedure of giving effect to disqualification.

(1) Whenever it is alleged that any Sarpanch or Naib-Sarpanch or any other member is or has become disqualified or whenever any such person is himself in doubt whether or not he is or has become so disqualified such person or any other member may, and the Sarpanch at the request of the Grama Panchayat shall, apply to the Collector for a decision on the allegation of doubt.

(2) The Collector may suo motu or on receipt of an application under Sub-section (1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive.

(3) Where the Collector decides that the Sarpanch, Naib-Sarpanch or any other member is or has become disqualified such decision shall be forthwith published by him on his notice-board and with effect from the date of such publication the Sarpanch, Naib-Sarpanch or such other member, as the case may be, shall be deemed to have vacated office, and till the date of such publication he shall be entitled to act, as if he was not disqualified.

Section 25 of the Act stipulates that a Sarpanch or any other member of the Grama Panchayat shall be disqualified to continue and shall cease to be a member if he incurs the disqualification morefully stipulated under Sub-sections (a), (b), (c) and (d) of Section 25(2).

Thus the Legislature in its wisdom has provided two forums to declare an elected Sarpanch or Naib-Sarpanch or Member of a Grama Panchayat disqualified to continue as such. The enquiry to be conducted u/s 26 by the Collector, though is in the nature of quasi-judicial enquiry and of summary nature, an election dispute raised u/s 30 of the Act is in the nature of a suit, inasmuch as the provisions of the CPC and the Evidence Act are applicable to the said dispute. The basic difference between Section 30 and Section 26 is that an election petition u/s 30 can be filed by any candidate who need not be a Member of the Grama Panchayat concerned, while an application u/s 26 can be filed by a Member or Naib-Sarpanch or Sarpanch who is in doubt about his/or incurring disqualification. The Sarpanch of a Grama Panchayat at the request of the Grama Panchayat can also apply for such declaration.

In an application filed u/s 30 before the Election Tribunal, a candidate can claim not only a declaration that the election of all or any of the returned candidates is void, but also a further declaration that he himself or any other candidate should be declared elected. This declaration, however, cannot be made by the Collector in a proceeding u/s 26. In other words, Section 26 is not concerned either with declaration of an election void or with any consequential declaration as to who should have been elected. It merely enables a person specified therein to invite a decision of the Collector on the question of disqualification of a Member, Naib-Sarpanch or Sarpanch. The Collector can suo motu also pass such declaration.

The grounds for declaring a candidate disqualified in election u/s 30 are confined to the grounds specified u/s 39; whereas in a proceeding initiated u/s 26, the Collector has to only consider the disqualification as stipulated u/s 25(2). The other marked difference between an election dispute raised u/s 30 and a proceeding initiated u/s 26 is that the election dispute raised u/s 30 and a proceeding initiated u/s 26 is that the election dispute u/s 30 can be raised within fifteen days after the date on which the name of the person elected is published; whereas there is no time limit for initiating a proceeding u/s 26 which can be filed any time during the tenure of a member or the Sarpanch or the Naib-Sarpanch of a Grama Panchayat.

The Supreme Court in the case of Rabindra Kumar Nayak Vs. Collector, Mayurbhanj, Orrisa and Others, , which was a case under the Orissa Panchayat Samiti Act, observed as follows:

There is no doubt that there is some overlapping between the two sections but the field of operation of these two Sections is different and distinct. Indeed u/s 45-B, a District Judge is not pronouncing upon the validity of the election but is only pronouncing upon the question as to whether a member is or has become disqualified under the Act. It cannot be laid down that no relief u/s 45-B can be claimed after the declaration of the result of election. Remedy of filing election petition u/s 44-A is no bar to file application u/s 45-B of the Act for inviting a decision on the question of disqualification of a member.

It is pertinent to mention here that the provisions of the Orissa Grama Panchayat Act and that of the Orissa Panchayat Samiti Act are parimateria, inasmuch as Section 44-B of the Orissa Panchayat Samiti Act is similar to Section 26 of the Orissa Grama Panchayat Act. Similarly, Section 44-A of the Orissa Panchayat Samiti Act is same as Section 26 of the Orissa Grama Panchayat Act.

Apart from the aforesaid fact, the proviso to Section 39 of the Orissa Grama Panchayat Act makes it abundantly clear that a Civil Judge (JD) while trying an election dispute shall have due regard to the decision, if any, made u/s 26 before making a declaration under the said section. Thus the intention of the Legislature is very clear that a proceeding u/s 26 and a proceeding initiated u/s 30 of the Orissa Grama Panchayat Act are both maintainable. Therefore, the contention of the learned Counsel for the petitioner that two proceedings are not maintainable cannot be accepted as there is no bar to initiate a proceeding u/s 26 during pendency of an election dispute u/s 30.

In view of the aforesaid discussion, this Court is not inclined to quash the show-cause notice issued to the petitioner and dismisses the Writ Petition. Petition dismissed.