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1993 DIGILAW 34 (ORI)

SURESH KUMAR AZAD v. STATE OF ORISSA

1993-02-02

B.L.HANSARIA, B.N.DASH

body1993
JUDGMENT : B.L. Hansaria, C.J. - These cases have been taken up today only for the purpose of deciding whether they are maintainable on the ground that the Orissa Panchayat Samiti Act, 1959 (shortly,the Act') has not provided any forum to challenge the election of the Chairman (or Vice-Chairman, for that matter) of the Samiti, This question would take care of, the question of maintainability because of the two earlier decisions of this Court.The first of these is Maheswar Tripathy and Others Vs. State of Orissa and Others in which it was held that if a forum be available under the statute in question giving a right to get elected, that forum alone has to be taken recourse to and the jurisdiction of this Court under Art. 226 of the Constitution to hear the grievance relating to election of the persons concerned on any of the grounds would be ousted. But then, it was pointed out in another Bench decision of this Court rendered in OJC No. 4389 of 1992 (Pitambar Bhoi v. Collector, Kalahandi, decided on 3-2-199i) that if no forum be available, this Court can be approached under Art. 226 of the Constitution. 2. Let us now see whether the Act has provided a forum for challenging the election of the Chairman. To decide this, we have to know how a Chairman is elected under the Act as amended in 1991 pursuant to which amendment the election in the present cases took; place. 3. Section 16 of the Act is relevant for this purpose as it deals with the constitution of the Panchayat Samiti and Sub-sec (1) mentions as to who shall be the members of the Samiti. 3. Section 16 of the Act is relevant for this purpose as it deals with the constitution of the Panchayat Samiti and Sub-sec (1) mentions as to who shall be the members of the Samiti. Clause (a) reads as below : (a) the Chairman of the Samiti elected in accordance with the provisions of Clause (a) of Sub-section (3)" : Clause (h) is also important which is in the following language :- "(h) one person who is qualified to be elected as a member of Grama Panchayat, to be directly elected by the person of every Grama who constitute the electoral roll in respect of the Grama as referred to in Sub-section (1) of Section 4 of the Orissa Grama Pancnayat Act, 1964 in the prescribed manner." Then comes Sub-section (3) which is in the following language : "(3) The elected members of the Samiti specified in Clause (h) of Sub-section (1) shall, at their first meeting, elect in the prescribed manner the Chairman and the Vice-Chairman of of the Samiti from among themselves." 4. The aforesaid would show that for becoming a Chairman after the amendment in 1991, a person has to be an elected member of the Samiti specified in Clause (h). 5. It may be mentioned now that before the Act was amended in 1991, the person who could be elected as Chairman was differently provided by the statute. As per the unamended provision, the election of Chairman was not confined to the elected members of the Samiti but members of all Grama Panchayats within the jurisdiction of the Samiti could elect the Chairman of the Samiti from among persons who are elected as or are eligible to be elected as members of such Grama Panchayats. The position thus was that the Chairman under the unamended provision need not have been a member of the Samiti but could be one who was either an elected member of the Grama Panchayat or even one who was elected as member of the Grama Panchayat. We have mentioned about this difference because Shri Sinha appearing for one of the opposite parties in OJC No. 4988 of 1992 has contended that similar question had come up before this Court earlier and by the decision in Gobind Ch. Panda Vs. Darsan Ch. We have mentioned about this difference because Shri Sinha appearing for one of the opposite parties in OJC No. 4988 of 1992 has contended that similar question had come up before this Court earlier and by the decision in Gobind Ch. Panda Vs. Darsan Ch. Rout and Others it was decided that even the election of the Chairman can be challenged pursuant to what has been provided in Section 44-A of the Act which was worded as below that case was decided : "No election of a person as a member of a Samiti or a Parishad held under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter." This Court held that the Chairman's election could also be challenged u/s 44-A. In coming to this conclusion, reference was made to Section 44-B (5) which was as below : " No candidate who has been elected to be a Member, Chairman or Vice-Chairman of a Parishad or Samiti shall be debarred from holding office as such member. Chairman or Vice-Chairman merely by reason of any election petition having been filed against him unless his election has been declared void by the Election Commissioner." 6. The Court in the aforesaid decision, therefore, stated that as Section 15(1) speaks about member, and Chairman is also a member, the election of the Chairman could be challenged because of what has been provided in Section 14-A which speaks about challenge to the election of a member. In coming to this conclusion, reference was made to Sub-section (5) also which has mentioned about Chairman too indicating, be as well comes within the purview of Chapter Vl-A of the Act on the subject of election dispute, which chapter contains Sections 44-A to 44-C. 7. It is, therefore, contended by Shri Sinha, which is also the submission of Shri Rath appearing for one of the opposite parties in OJC No. 4735 of 1992, that a Chairman's election even after the amendment can be challenged because of what has been provided in Section 44-A of the Act. Shri Palit appearing for the petitioner in OJC No. 4976 of 1992 as well as Shri Misra appearing for the petitioner in OJC No. 4738 of 1992 contends that the aforesaid decision has ceased to be operative because of the 'sea-change' made in the Act. Shri Palit appearing for the petitioner in OJC No. 4976 of 1992 as well as Shri Misra appearing for the petitioner in OJC No. 4738 of 1992 contends that the aforesaid decision has ceased to be operative because of the 'sea-change' made in the Act. The change brought out is this. Under the old Act, a Chairman need not have been a member of the Samiti but could become a member of the Samiti on being elected, and the electoral college consisted of the members of the Grama Panchayat and a person to be elected as Chairman could be even one who need not be member of the electoral college because, Section 16(3). as it then existed, permitted a person who was eligible to be so elected. 8. It is contended that earlier provision was that a Chairman became a member of the Samiti only after he has been elected as aforesaid, whereas under the present scheme he is already a member and so what has been provided in Section 44-A should be confined to the persons elected as members simpliciter, and not of his election of Chairman thereafter. In this connection, our attention is also invited to the definition of 'Member' as given in Rule 2(1)(n) of the Orissa Panchayat Samiti Election Rules, 1991 which has defined "Member of Samiti'' to mean "a member elected Under Section16(1) h) of the Act". As already noted, Section 16(1) (h) speaks about election to the Samiti as a member, and not election as a Chairman, which has been taken care of by Sec: 16(3), and not Section 16(1) (h). 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 Section 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 Section 16(1) shall recognise the Chairman as a member. According to us, despite the aforesaid change having been brought about by the Amending Act of 1991,Clause (a) of Section 16(1) shall recognise the Chairman as a member. It is this provision which had led this Court in the earlier decision along with what was stated in Section 44-B(5), which provision has remained unaltered to hold that the election of a Chairman could also be subject of election dispute visualised by Section 44-A. According to Shri Palit, mention of the word 'Chairman' in Section 44-B(5) is because of the fact-person having elected as member of the Panchayat Samiti might nave 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 u/s 44-A. But then, the Amended Act of 1991 recognises a Chairman elected even in accordance with the provision of Sub-section (3) as amended in 1991, as a member. So, the change brought out in Sub-section (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 u/s 44-A of the Act. As a forum is available under the Act, these petitions do not lie in view of the earlier decision. We would, however, refer to the second proviso to Section 44-B of the Act which states that if the petitioner satisfies the Election Commissioner that sufficient cause existed for the failure to present the petition within the period aforesaid, the Election Commissioner may in his discretion condone such failure. It would be open to the petitioners to invoke this proviso in case they would decide to present petitions as contemplated by Section 44-A, and on this being done, such order as deemed, legal and proper shall be passed by the Election Commissioner. 11. Shri Misra contends that in so far as OJC No. 4738 of 1992 is concerned, he has further submissions to make. 11. Shri Misra contends that in so far as OJC No. 4738 of 1992 is concerned, he has further submissions to make. Let this case be listed for hearing on 4th February, 1993 along with OJC No. 5370 of 1992 which was earlier ordered to be taken up along with that case. 12. In the result, all these cases except OJC Nos. 4738 and 5370 of 1992 stand dismissed being not maintainable. B.N. Dash, J. 13. I agree.