M.M.DAS, J. W.P.(C) NO.19608 OF 2008 (Decided on 27.07.2010) ASHOK KUMAR JAGADEV ……….. Petitioner .Vrs. SIBANARAYAN JENA ……….. Opp.Party. CIVIL PROCEUDRE CODE, 1908 (ACT NO.5 OF 1908) – ORDER 22. For Petitioner - M/s. A.K.Mohapatra, S.K.padhi, N.C.Rout, S.K.Mishra, A.R.Swain & M.R.Mohanty. For Opp.Party - M/s. S.P.Dash & N.M.Swarnakar. M.M. DAS, J. The petitioner in this writ petition was declared elected as Sarpanch of Gopamathura Grama Panchayat under Baramba Block in the election held on 21.2.2007. One Prafulla Kumar Nayak filed Election Misc. Case No. 4 of 2007 seeking declaration of the election of the petitioner as illegal and void and to declare him as the legally elected Sarpanch of the said Grama Panchayat. Though allegations of corrupt practice, arrangement of fraudulent voters and utilization of official vehicle in election campaigning were made in the election petition, but only a single point was urged before the learned Election Tribunal by the election petitioner which was with regard to the allegation that the petitioner was holding an office of profit on the date of filing of the nomination. The learned Election Tribunal after framing the issues, recorded evidence and upon hearing the learned counsel for the parties allowed the said Election Misc. Case by judgment dated 23.7.2008 holding that the nomination and election of the petitioner as Sarpanch was illegal being contrary to section 25(h) of the Orissa Grama Panchayat Act, 1964 (for short, ‘ the Act’) as he was disqualified to file the nomination. It was further directed by the learned Election Tribunal that the election petitioner having obtained the second highest number of votes, is declared as duly elected Sarpanch of the said Grama Panchayat. The petitioner challenged the said order/judgment passed by the learned Election Tribunal in Election Appeal No. 28 of 2008 before the learned District Judge, Cuttack. During pendency of the said appeal, the election petitioner expired. An application was filed by the petitioner before the learned appellate court bringing the fact of death of the election petitioner, who was respondent no. 1 in the said appeal and died on 13.11.2008 and making a prayer that after death of the said election petitioner, the proceeding is vitiated inasmuch as there is no scope to perpetuate the election proceeding. The learned District Judge on 24.12.2008 considering the said application filed by the petitioner and the death certificate produced before him, recorded as follows:- “……………. Heard. Prayer is allowed. The name of respondent no. 1 - Prafulla Kumar Nayak be deleted from the appeal memo. Office to correct the appeal memo and cause title accordingly.” After recording the above order, the learned District Judge heard the appeal on merit on the same day and posted the appeal for delivery of judgment to 2.1.2009. Being aggrieved by the said order, the petitioner has approached this Court in the present writ petition for appropriate relief. 2. This Court passed an interim order on 30.12.2008 staying delivery of the judgment by the appellate court. 3. Mr. A.K. Mohapatra, learned counsel for the petitioner contended that the learned District Judge without considering the law and effect of death of respondent no. 1 in the appeal, who was the election petitioner and without applying his judicial mind, directed deletion of the name of the said election petitioner and without hearing the appeal reserved the appeal for judgment. According to Mr. Mohapatra, the learned District Judge has failed to exercise jurisdiction vested in him by not hearing the petition filed by the petitioner on 24.12.2008 on merit and by not inviting objection to the said petition inasmuch as not assigning any reason as to why it shall not be held that the entire election petition abates on the death of the election petitioner. The other contention raised by Mr. Mohapatra is that when the election petitioner expired, the learned District Judge should have decided the question as to whether the election petition as a whole abated from its inception or not, instead of directing deletion of the name of the deceased. He vehemently urged that the election proceeding is neither a proceeding under the common law nor a proceeding in equity, but is one under a special statute and should be governed by the said statute. The provisions of the Code of Civil Procedure will apply to such a proceeding as per sections 35 and 37 of the Act. Right to be elected is a personal right, which does not perpetuate to the successors, as in case of civil proceeding, where right over properties is concerned. Hence, question of substitution does not arise in an election petition. 4. The opp. party, who was another candidate in the election and was opp. party no. 2 in the election petition, has appeared in the present writ petition. Learned counsel for the opp. party submitted that the learned Election Tribunal having found that the petitioner was disqualified from filing nomination to contest the election to the post of Sarpanch on the ground that he was holding an office of profit on the date of filing of the nomination paper and such finding having been challenged in the appeal, even on the death of the election petitioner, the election petition will not abate from its inception as otherwise, a disqualified candidate like the petitioner, who is not legally entitled to hold the post of Sarpanch, will continue to function as Sarpanch of the Grama Panchayat. He further submitted that disqualification under section 25 (h) of the Act being a statutory disqualification, the provision regarding abatement of the appeal can only be limited to the appeal itself and cannot nullify the findings arrived at by the learned Election Tribunal. Hence, in any event, the correctness of the findings of the learned Election Tribunal with regard to disqualification of the petitioner to contest the election to the post of Sarpanch can be adjudicated in the appeal. The other limb of the argument of the learned counsel for the opp. party is that since the petitioner has already suffered a judgment declaring him disqualified to hold the post of Sarpanch, the said finding cannot be cured on account of the death of the election petitioner nor can be treated to have been waived or nullified by such death of the election petitioner. 5. Section 35 of the Act prescribes that subject to the provisions of the Act and the rules made thereunder every election petition shall be tried by the Civil Judge (Jr. Division) as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Section 37 of the Act specifies that the Civil Judge (Junior Division) has the powers which are vested in a court under the Code of Civil Procedure when trying a suit in respect of the matters enumerated therein. Though in section 37 of the Act, there is no mention that Order 22 of the Code of Civil Procedure 2 can be made applicable to an election petition, but nevertheless, section 35 prescribes that every election petition shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure. No doubt, in an election petition, if the election petitioner expires, the right to sue does not survive with the legal heirs of such election petitioner as right to be elected undoubtedly is a personal right. Nevertheless, after final adjudication of an election petition, as in the instant case, where facts reveal that the election of the petitioner was declared as illegal and void on the ground that he was disqualified to file nomination paper for contesting the election as per section 25 (h) of the Act, the correctness of such finding is open to be adjudicated in an appeal preferred by the elected candidate (petitioner). Unless such finding is reversed by the appellate court, the petitioner cannot be held to be qualified to file the nomination paper and the finding arrived at by the learned Election Tribunal will be binding on the petitioner as well as on all concerned. 6. This Court, therefore, finds that Order 22 C.P.C. has no application in an election petition under the Act, and, therefore, the question of abatement of the appeal shall not arise. However, the portion of the order of the learned Election Tribunal declaring the election petitioner to be elected as Sarpanch cannot be worked out in view of his demise and a bi-election is bound to be held for the post of Sarpanch. However, if the petitioner does not pursue the appeal any further, the finding of the learned Election Tribunal with regard to disqualification of the petitioner becomes final. This Court, therefore, though does not find any illegality in the impugned order, but since it is alleged that the petitioner has not been heard on the merit of the appeal, it is directed that the learned District Judge, Cuttack shall hear arguments in Election Appeal No. 28 of 2008 afresh and decide the correctness of the findings arrived at by the learned Election Tribunal with regard to disqualification of the petitioner. In case, he confirms the said finding, the learned District Judge shall direct holding of by-election to the post of Sarpanch of the said Grama Panchayat. But, in the event, the said finding is set aside and it is held that the petitioner was not disqualified as per section 25 (h) of the Act, the petitioner shall be allowed to continue as the Sarpanch of the said Grama Panchayat. 7. With the aforesaid observation and direction, the writ petition is disposed of. There shall be no order as to costs. Writ petition disposed of. 3