RUPADHAR PUJARI

GANGADHAR BHATRA

OCTOBER 5, 2004

[R.C. LAHOTI, CJ.,'_G.P. MATHUR AND PRAKASH PRABHAKAR

 NAOLEKAR, JJ.]

Paiichayat Elections:

C Orissa Grama Panchayats Act, 1964-Sections 34 and 38~ Disqualification of returned candidate from being elected to the post and defeated candidate declared elected being single candidate by Munsif-High Court upheld disqualification of returned candidate but ordered re-election since in the election petition defeated candidate did not specifically seek a D declaration to the effect that he was elected-On appeal, held: Defeated candidate being the only nominated candidate, his declaration as duly elected was natural, obvious and inevitable consequence and there was no need for re-election-Further, the candidate should not be denied such relief to which he was found entitled on facts established, because relief clause was not clearly worded-Hence, order of High Court set aside and that of Munsif E restored

Interpretation of statutes:

Procedural Laws-Relating to Panchayat elections and election petitions Interpretation of-Held: Procedural laws cannot be interpreted with too much F rigidity-They are to be liberally construed to make them workable and advance ends ofjustice-Further, technical objections which defeat and deny substantial effective justice cannot be approved, except where the mandate of the law inevitably necessitates it.

Gram Panchayat election for the office of Sarpanch was held.

G Respondent was declared elected. Appellant, the only defeated candidate, challenged the election of the respondent-returned candidate seeking declaration to the effect that the election of respondent is invalid and declare appellant as the only duly nominated candidate. The Munsif set aside the election of the respondent on account of disqualification and H 86

RUPADHAR PU.TARI v. GANGADHAR BHA TRA 87

declared appellant being single candidate as duly elected to the post. The A High Court upheld the setting aside of the respondent's election, however, directed the authorities to hold re-election since in the relief clause appellant had not sought any relief to declare him elected. Hence the present appeal.

Allowing the appeal, the Court

HELD. 1.1. Procedural laws relating to Panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting. Laws of procedure are meant

to regulate effectively, assist and aid the object of doing substantive and C real justice. Procedural laws must be liberally construed to really serve as handmaid of justice, make them workable and advance the ends of justice. Technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it. (90-H; 91-A, BJ D

Sardar Amarjit Singh Katra (Dead) by Lrs. and Ors. v. Pramod Gupta (Smt) (Dead) by Lrs. and Ors., (2003) 3 ~CC 272, referred to.

1.3. In the instant case, respondent was disqualified from being elected. Deemingly there was only one candidate left, i.e. the appellant. E Once he was found to be the only .duly nominated candidate then he alone was to be declared elected and the constituency was not required to go to polls at all. The declaration of the appellant as duly elected candidate is the natural, obvious and inevitable consequence of his being the only duly nominated candidate. Ordinary, a plaintiff or petitioner should not be denied relief to the effect that he be declared elected, to which he is found F entitled on the facts established, simply because the relief clause in the election petition is not very happily worded. Therefore, the Munsif was right in declaring the appellant as the one duly elected in exercise of the powers conferred by Sub-Section (2) of Section 38 of the Orissa Grama Panchayats Act, 1964 consequent upon the election of the respondent, i.e. G the only other candidate having been invalidated. In substance that was the relief which the election petitioner had sought for. Thus, High Court has erred in interfering with and setting aside the well merited relief granted by the Munsif to the appellant. (91-C, D, E, F[

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6507 of 2004.

From the Judgment and Order dated 20.2.2004 of the Orissa High Court in W.A. No. 4856 of 2003.

B Sibo Sankar Mishra and N.K. Neeraj for the Appellant.

Janaranjana Das, Swetaketu Mishra and Ms. Moushumi Gahlot for the Respondents.

The Judgment of the Court was delivered by c

R.C. LAHOTI, CJ. Leave granted.

Election to the office of Sarpanch, Pondosguda Gram Panchayat, Orissa was held in the month of February 2002 under the provisions of The Orissa Grama Panchayats Act 1964 (hereinafter 'the Act', for short). There were D eight candidates out of whom six withdrew from the contest leaving only the petitioner and the respondent in the election fiay. The polling took place on 21.2.2002. On 28.2.2002, the respondent was declared elected.

The respondent's election was put in issue by the appellant by filing an election petition under Sections 30/31 of the Act in the Court of Munsif E having jurisdiction to try the petition. The relief clause in the petition is relevant as the controversy centres around it and hence is reproduced hereunder:-"

"The Petitioner, therefore, prays the Hon'ble Court to be pleased <

F to declare that the election of opposite party is invalid and declare the Petitioner as the only duly nominated candidate for the office of Sarpanch Pondosoguda in 2002 Gram Panchayat Election, in alternate declare a casual vacancy to have been created in the office of Sarpanch Pondosoguda GP and direct the Collector Koraput/such concerned authority to take proceeding to fill up the vacancy, award, the c9st of G the case and give such further relief/relief which the court deem fit and proper under the law in the interest of justice."

(emphasis supplied) , ..

The learned Munsif found that the respondent was disqualified from

..,,

H contesting the electionas he had more than two children on the date of his

_ ....

RUPADHAR PU.JAR! v. GANGADHAR BHATRA [LAHOTI, CJ.] 89

nomination, a disqualification within the meaning of clause (v) of sub-section A

(1) of Section 25 of the Act. In view of that finding, the learned Munsif allowed the election petition, set aside the respondent's election and further declared that "Rupadhar Pujari being the single candidate has been duly elected to the post of Sarpanch of Pondosguda Gram Panchayat".

The respondent preferred the writ petition in the High Court. The High B Court has upheld the finding of the learned Munsif that the respondent was disqualified from being elected. However, the High Court has further held that in the relief clause of the election petition filed by the appellant he had not sought for any relief to declare him elected. Allowing the writ petition, the High Court, while upholding the setting aside of the election of the C respondent, substituted the consequential direction in place of the one given by the learned Munsif and directed that it would be open to the authorities to proceed in accordance with law, i.e. by holding a re-election. Aggrieved by the judgment of the High Court, the appellant has filed this appeal by special leave.

Sections 34, 40 and sub-sections ( l) and (2) of Section 38 of the Act, which are relevant for our purpose, provide as under:-"

34. Relief that may be claimed by the petitioner - A petitioner, may, in addition to claiming a cteclaration that the election of all or

any of the returned candidates is void claim a further declaration that E he himself or any other candidate has been duly elected.

40. Grounds for which a candidate other than the nturned 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 F any other candidate has been duly elected and the Muns if 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 G a corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes;

38. Decision of Munsif -

(1) If the Munsif after making such enquiry, as he deems necessary, finds in respect of any person, whose election is called in question by a petition that his election was valid, H

he shall dismiss the petition as against such person and may award costs at his discretion.

(2) If the Munsif finds that the election of any person was invalid, he shall either

(a) declare a casual vacancy to have been created; or

(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 athis discretion.

xxx xxx xxx xxx"

The scheme of the fore-quoted provisions reveals that in an election petition the petitioner obviously lays challenge to the election of the returned candidate or candidates and while doing so he can claim a further declaration, consequent upon the election of the returned candidate or candidates having D been annulled and avoided, that he himself or any other candidate has been duly elected. Sub-section (2) of Section 38 confi::rs jurisdiction on the Munsif to declare a casual vacancy to have been created in view of the election of any returned candidate having been invalidated. Equally, the Munsif has jurisdiction to declare any other candidate to have been duly elected. Which E of the two alternate powers vesting in the Munsif shall be exercised depends on his forming an opinion as to which of the two reliefs would be more appropriate in the circumstances of the case. Applicability'of Section 40 of the Act is attracted when looking to the nature of the case an enquiry is called for into the validity of votes so as to find out whether the petitioner or some other candidate would have received the majority of the valid votes. Depending F on such finding such other candidate may be declared to have been duly elected over and above the declaration that the election of the returned candidate was void.

True it is that the relief clause in the election petition in the present case is not very happily worded. The election petitioner would have been G better advised to specifically seek a declaration to the effect that he was elected. However, we cannot be oblivious of the fact that Panchayat elections are part of Gram Swaraj system. Most of the provisions relating to election and election petitions in the laws governing Panchayats are pari materia with the provisions contained in the Representation of the People Act, 1951. Yet H the procedural laws relating to Panchayat elections and election petitions

RUPADHAR PUJARI v. GANGADHAR BHATRA [LAHOTI, CJ.] 91

cannot be allowed to be interpreted with too much of rigidity and by indulging A in hair-splitting. A recent decision by a Constitution Bench in Sardar Amarjit Singh Katra (Dead) by Lrs. and Ors. v. Pramod Gupta (Smt) (Dead) by Lrs. and Ors., [2003] 3 SCC 272, once again reminds us to remember that Jaws of procedure are meant to regulate effectively, assist and aid the object of doing substantive and real justice. Procedural laws must be liberally construed J3 to really serve as handmaid of justice, make them workable and advance the ends of justice. Technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it.

In the case at hand, there were only two candidates in the election fray.

The respondent, though declared elected, was found by the learned Munsif to have been disqualified from contesting the election. He was, therefore, excluded from the contest. Deemingly there was only one candidate left, i.e.

the appellant, and he was the only duly nominated candidate. There was no need to go for polling. Once he was found to be the only duly nominated D candidate then he alone was to be declared elected. The constituency was not required to go to polls at all. The declaration of the appellant as duly elected candidate is the natural, obvious and inevitable consequence of his being the only duly nominated candidate. Ordinary, a plaintiff or petitioner should not be denied such relief to which he is found. entitled on the facts established, simply because the relief clause is not very happily worded. The learned E Munsifwas, therefore, right in declaring the appellant as the one duly elected in exercise of the powers conferred by sub-Section (2) of Section 38 of the Act consequent upon the election of the respondent, i.e. the only other candidate having been invalidated. In substance that was the relief which the election petitioner had sought for. The High Court has erred in interfering F with and setting. aside the well merited relief granted by the learned Munsif to the appellant herein.

For the foregoing reasons, the appeal is allowed. The judgment of the High Court is set aside and that of the learned Munsif is restored with costs throughout.

N.J.

Appeal dismissed.