ORISSA HIGH COURT: CUTTACK W. P.(C) NO. 13892 OF 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Akshaya Mohanty …… Petitioner -Versus- Ashok Das and another …… Opp. Parties For Petitioner : M/s. Susanta Kumar Dash, A.K.Otta, S.Dash, B.P.Dhal & Mrs.A.Dhalsamanta. For Opp. Parties : M/s. A.K.Mohapatra, S.Jena, S.K.Padhi, P.K.Jena and S.Jen. (For O.P.No.1) ----------------------- Decided on 17.11. 2009. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. Das, J. The petitioner was declared elected as Chairman of Gondia Panchayat Samiti. His election was challenged by the opp. party no. 1 in Election Petition No. 28 of 2007 before the learned Civil Judge (Senior Division), Dhenkanal on the grounds, inter alia, that despite the objection raised by him before the Election Officer – opp. party no. 2 that 7 to 8 ballot papers were liable to be rejected on account of visible signs or marks present therein so as to identify the respective voters, but the opp. party no. 2 improperly counted the votes in favour of the successful candidate (petitioner). After closure of evidence from both the sides, the Election Tribunal on scrutiny of the ballot papers declaring the election of the petitioner as Chairman to be null and void, declared the opp. party no. 1 to have been successfully elected to the post of Chairman. Aggrieved by the judgment passed by the Election Tribunal, the petitioner preferred an appeal registered as FAO No. 7 of 2008 before the learned District Judge, Dhenkanal. The learned District Judge upon hearing of the said appeal confirmed the judgment of the Election Tribunal. Being aggrieved, the petitioner has approached this Court in the present writ petition for appropriate relief. 2. Learned counsel for the petitioner raised a preliminary question with regard to maintainability of the electon dispute, inter alia, contending that under Chapter –6 (A) relating to election dispute in Orissa Panchayat Samiti Act, 1958 (hereinafter referred to as ‘the Act’), there is no provision to question the election of a person as Chairman of a Panchayat Samiti. For convenience, this Court, therefore, feels it appropriate that before entering into the merit of the case, the following question should be addressed:- “Whether there is any scope to challenge the election to the post of Chairman of a Panchayat Samiti under section 44-A of the Orissa Panchayat Samiti Act, 1959 ? 2 In the case of Suresh Kumar Azad v. State of Orissa and others, 1993 (I) OLR 563, a Division Bench of this Court presided over by the then Chief Justice, analyzing the law as it stood prior to its amendment in 1991 as well as the Amending Act of 1991, held in paragraphs-9 and 10 as follows:- “9. The change is discernible and it is definitely correct to submit that a Panchayat Samiti Chairman now has to be first elected as a member of the Samiti itself. The further submission, however, that Sec. 44-A, which speaks about challenge to the election of a member, cannot, therefore, be taken within its fold the election of the Chairman does not follow ipso facto. According to us, despite the aforesaid change having been brought about by the Amending Act of 1991, Clause (a) of Sec. 16 (1) shall recognize the Chairman as a member. It is this provision which had led this Court in the earlier decision along with what was stated in Sc. 44-B(5) , which provision has remained unaltered to hold that the election of a Chairman could also be subject of election dispute visualized by Sec. 44-A. According to Shri Palit, mention of the word ‘Chairman’ in Sec. 44-B(5) is because of the fact-person having elected as member of the Panchayat Samiti might have been elected in the meantime as a Chairman and so to make the position clear that despite such a person having been elected as Chairman, his election as a member can still be questioned by filing a petition under Sec. 44-A. But then, the Amended Act of 1991 recognizes a Chairman elected even in accordance with the provision of Sub-sec. (3), as amended in 1991, as a member. So, the change brought out in Sub-sec. (3) which we have adverted earlier, has not altered the position and the ratio of the earlier decision still holds good. 10. We would, therefore, hold that it is open to a person aggrieved with the election of the Chairman, and we make it clear that this challenge is relatable to the challenge of the person as the Chairman as distinguished from his election as a member, can still be questioned under the provisions of the Act because of what has been stated under Sec.44-A of the Act………………………..” 3 The correctness of the above decision was also questioned in the case of Bishnu Prasad Das v. Election Officer-cum- Block Development Officer and others, 2003 (Supp.) OLR 651. In the said decision, a question was raised that in view of section 44-C of the Act, the decision in the case of Suresh Kumar Azad (supra) should be held to be per incurium as it has not taken into consideration the provisions of section 44-C of the Act. This Court dealing with the said question repelled the said contention by observing as follows:- “……………We, therefore, fail to see as to how Section 44-C of the Act, if taken into consideration, would alter the position of law laid down by the Division Bench of this Court in the case of Suresh Kumar Azad vrs. State of Orissa and others (supra) that an election of a Chairman of a Panchayat Samiti can also be challenged in accordance with the provisions of the Act”. I am also not persuaded with the aforesaid contention that both the aforesaid judgments should be held to be per incurium and will not be binding on the facts of the present case. 3. Now coming to the merits of the case, it was contended on behalf of the petitioner that in the absence of any issue framed as to whether the ballot papers were subsequently tampered at the instance of the opp. party no. 1 , an active supporter of the sitting M.L.A. taking advantage of the situation that ballot papers were kept in an envelope which was neither 4 sealed nor signed by the contesting candidates or their representatives, the courts below acted contrary to law in declaring the election of the petitioner void. 4. It would be appropriate to know that issues are framed on the pleadings of the parties with regard to questions which are controverted. It was never pleaded by the petitioner that the ballot papers have been kept in envelopes without being sealed. Thus, question of controverting such a plea by the opp. party no. 1 and framing of an issue to that effect did not arise in the case. It is also a settled position of law that when parties have adduced evidence on a particular question, even if no issues have been framed, the court can answer the said question in the judgment. In the instant case, the court below has given a finding that the petitioner failed to substantiate his assertion that the ballot papers were subsequently tampered. This being a finding of fact, the same cannot be dislodge in a writ petition. It is further found that the Election Tribunal as per order dated 11.9.2007 directed recounting and scrutiny of 27 nos. of used ballot papers for an effectual adjudication of the matter. The said order was challenged by the petitioner before this Court in W.P. (C) No. 11744 of 2007. The said writ petition being dismissed on merit, the petitioner challenged the said order in Writ Appeal No.1 of 2008, which was also dismissed. Being unsuccessful, the 5 petitioner questioned the said order before the Apex Court in SLP (Civil) No. 1731 of 2008. The Apex Court also dismissed the said SLP vide order dated 4.2.2008. The order for recounting of the ballot papers having been, thus confirmed, the said ballot papers were scrutinized in presence of both the parties by the Election Tribunal on 22.2.2008 and the result was reduced to writing in a separate memorandum which has been marked as Ext. 1. The Election Tribunal found that the valid votes in favour of the petitioner were reduced to six and 12 votes were found valid to have been cast in favour of the opp. party no.1. The lower appellate court has confirmed the order of the Election Tribunal, as stated above. I, therefore, find no reason to interfere with the same. 6. In the result, there is no merit in this writ petition, which is accordingly dismissed, but without any cost. …………………… M.M. Das, J. Orissa High Court, Cuttack. November 17th, 2009/Biswal. 6 7 8 9