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. ------------- 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 ) --------------------- Date of order: 02.09.2010 ------------------- -- P R E S E N T : 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 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 2 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 3 (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 4 of 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 5 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 6 order, 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. 7 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 8 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 9 10