JUDGMENT : R.N. Misra, J. - The Petitioner was elected as Chairman of the Nawapara Panchayat Samiti held on 12-1-1971. An application was filed by the opposite party No. 2 one of the defeated contestants-before the Election Commissioner challenging the said election on the ground that the Petitioner not being an ordinary resident within the Nawapara Block and he having interest in a subsisting contract with the Panchayat Samiti was disqualified from being elected as Chairman of the Panchayat Samiti. The election of the Petitioner was, therefore, asked to be declared as void. The Petitioner contested the proceeding on the footing that though he was a sitting Councilor of the Notified Area Council of Khariar Road, he was an ordinary resident within the Nawapara Block and was, therefore, qualified to be elected as the Chairman of the Panchayat Samiti. 2. The Election Commissioner found that the Petitioner was a sitting councilor of the Notified Area Council of Khariar Road. He was further not in a position to hold that the name of the opposite party (Petitioner) found mention in the electoral roll of village Mota Nawapara situated within the Nawapara block. He relied upon the provisions of Section 25-A of the Orissa Panchayat Samiti Act (hereinafter referred to as the Act) and ultimately held that the Petitioner?s election was void. He accordingly set aside his election and declared that a casual vacancy had been created and called upon the Collector of Kalahandi to fill up the vacancy in accordance with law. There was a petition for review before the Election Commissioner which was rejected by a subsequent order dated 22-10-1971. This decision of the Election Commissioner is impugned in the present proceeding for a writ of certiorari. 3. The election of the Petitioner was sought to be avoided on two grounds, namely, (i) the Petitioner was disqualified from being elected as Chairman not being an ordinary resident within the Block; and (ii) the Petitioner had interest in a subsisting contract with the Panchayat Samiti. The disqualifications are provided u/s 45(1) of the Act and against the Petitioner the disqualifications provided for in Clauses (b) and (c) were raised. The Commissioner did not accept the allegation that the Petitioner had any interest in any subsisting contract with the Panchayat Samiti. That finding is no more assailed. The disqualifications are provided u/s 45(1) of the Act and against the Petitioner the disqualifications provided for in Clauses (b) and (c) were raised. The Commissioner did not accept the allegation that the Petitioner had any interest in any subsisting contract with the Panchayat Samiti. That finding is no more assailed. The only question for consideration, therefore, is as to whether the Election Commissioner was right in his finding that the Petitioner was disqualified u/s 45(1)(b) of the Act. 4. Section 45(1)(b) is to the following effect- A person shall not be eligible to stand for election under Sub-section (2) of Section 16 if he x x x (b) is not ordinarily residing within the Block. x x x That phrase has been defined in Section 3(d)(2) of the Act as follows: Ordinary resident in any area with all its grammatical variations and cognate expressions shall have reference to a person whose name finds place in the electoral roll for the time being in force prepared under the Representation of the Peoples Act, 1950, in so far as the roll relates to such area. The Election Commissioner has stated in the impugned order- ...The opposite party (D.W. 1) (Petitioner) in his oral testimony deposes that he is residing in village Mota Nawapara within the Nawapara Block since 1965 and his name finds place in the electoral roll of village Mota Nawapara in serial No. 217 against house No. 80. He owns and possesses land and house in village Mota Nawapara and looks after his cultivation work. But the electoral roll of village Mota Nawapara is not produced before the Court by the opposite party in support of his oral testimony. In the instant position of the evidence the onus entirely lies on the opposite party to produce the electoral roll of village Mota Nawapara as he (Opposite. Party) specifically pleaded this fact in para 6(b) of his written statement. In the absence of production of such documents, that is, electoral roll of village Mota Nawapara, I am unable to rely on the pleadings of the opposite party in this regard. I, therefore, do not find myself in a position to hold that the name of the opposite party finds mention in the electoral roll of village Mota Nawapara situated within the Nawapara Block over which the provisions of Orissa Panchayat Samiti Act, 1959, is made applicable. I, therefore, do not find myself in a position to hold that the name of the opposite party finds mention in the electoral roll of village Mota Nawapara situated within the Nawapara Block over which the provisions of Orissa Panchayat Samiti Act, 1959, is made applicable. As it appears, the Election Officer while dealing with the objection raised against the nomination of the Petitioner had made enquiries and was satisfied that the Petitioner?s name appears in the electoral roll of Mota Nawapara. The order of the Election Officer was exhibited in the dispute before the Election Commissioner as Ext. 8. The statement of the Petitioner before the Election Commissioner as referred to above went unchallenged. Apart from these, the certified copy of the entry in the electoral roll had also been produced before us. Ordinarily we would not have accepted fresh evidence at this stage but in view of the fact that there was documentary evidence before the Election Commissioner, we were prepared to refer to the electoral roll as corroborative material. Therefore, it must be found that the Petitioner?s name appears both in the electoral roll of village Mota Nawapara as also in the Khariar Road N.A.C. For the purposes of the Panchayat Samiti Act, the Petitioner must be found to be an ordinary resident within the Block of Nawapara as he complies with the definition given in Section 3(d-2) of the Act. 5. Under the Orissa Municipal Act "residence" and "reside" have been defined in Section 3(32) to mean ?residence? - ?reside? - a person is deemed to have his ?residence? or to ?reside? in any house if he sometimes uses any portion thereof as a sleeping apartment and a person is not deemed to cease to reside in any such house merely because he is absent from it or has elsewhere another dwelling in which he resides if he is at liberty to return to such house at any time and has not abandoned his intention of returning, Section 16 of the Municipal Act has no provision touching upon the question of residence Section 17(1)(h) refers to the disqualification arising out of a sitting councilor?s ceasing to be a resident within the Municipality. Thus a person can be a resident within the Municipal area (same provision is also in N.A.C.) and at the same time be an ordinary resident within a Block. Thus a person can be a resident within the Municipal area (same provision is also in N.A.C.) and at the same time be an ordinary resident within a Block. Merely because the Petitioner is a sitting councilor it cannot be held that the Petitioner cannot associate himself with the activities of the Panchayat Samiti. 6. Mr. Mohanty for the opposite party No. 2 relied upon the provisions of the Representation of the People Act which ban an elector to cast his right of franchise twice. We are not concerned with such a situation in this case. There does not seem to be any provision under the Panchayat Samiti Act which prohibits a Munipal Councilor from contesting an elective office in a Panchayat Samiti. Since qualification and disqualification for those institutions are prescribed under Statute, in the absence of any ban in the Statute that a sitting councilor of a Council would not be entitled to contest for elective offices in a Panchayat Samiti the Petitioner cannot be said to have any disqualification. The provisions of Section 25-A of the Act are not relevant our purpose also. 7. The net result of the above discussion is that the Petitioner cannot be found to have been disqualified u/s 45(1)(b) of the Act. Provisions of disqualification must be strictly construed and in the absence of any clear provision that a councilor would not be entitled to contest the elective offices of a Panchayat Samiti, we are not in a position to agree with the conclusion of the Election Commissioner. He has gone wrong in law and has arrived at an erroneous conclusion. 8. We would accordingly allow the writ petition, quash the order of the Election Commissioner by issuing a writ of certiorari and further direct that the election petition of the opposite party No. 2 shall stand dismissed. We make no order as to costs because notwithstanding the decision against the Petitioner, he has been able to be in office by obtaining an order of stay from this Court. K.B. Panda, J. 9. I agree.