Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 111 (ORI)

Manjulata Das v. State of Orissa

2004-02-23

B.P.DAS

body2004
JUDGMENT S. B. ROY, C.J. — By this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the election of O.P. No. 6 to the office of Sarpanch of Orasahi Grama Panchayat under Chandbali Block in the district of Bhadrak. 2. According to the learned counsel for the petitioner, the constituency in question from which O. P. No. 6 was elected as Sarpanch was reserved for women candidate belonging to Scheduled Caste community. The further contention of the learned counsel for the petitioner is that though it is true that O.P.No. 6 is a lady, but she does not belong to any Scheduled Caste community. Despite the aforesaid disqualification, the nomination filed by O.P. No. 6 for the office in question was accepted and she was ultimately elected. Instead of raising an election dispute as provided by or under the Orissa Grama Panchayat Act, the peti¬tioner has approached this Court directly under Article 226 of the Constitution of India. 3. It is the settled position of law that right to file nomination, right to contest election and right to raise election dispute are all statutory creations. Beyond the statute a party has no right to raise an election dispute. Despite the aforesaid well settled legal position, learned counsel for the petitioner contends that the present writ petition is maintainable in as much as the question involved in this case is the invalidity of the nomination filed by O.P. No. 6 on account of not belonging to a particular community. In support of the aforesaid contention, learned counsel for the petitioners refers to a decision of the Apex Court in K. Venkatachalam v. A. Swamickan, A.I.R. 1999 S.C. 1723. On perusal of the said decision, we find that no such proposition of law was laid down by the Apex Court in this decision that despite the provisions in the statute as to how an election dispute can be raised, remedy is available under Article 226 of the Constitu¬tion. It is a too well known proposition of law that when a statute confers right to file nomination or to contest any election or to raise an election dispute as provided in the statute itself, such dispute has to be raised in that particular manner and before such forum as provided in the statute itself. It is a too well known proposition of law that when a statute confers right to file nomination or to contest any election or to raise an election dispute as provided in the statute itself, such dispute has to be raised in that particular manner and before such forum as provided in the statute itself. Such dispute cannot be raised in any other manner including a petition under Article 226 of the Constitution of India. Reference in this connection may be made to the decision of the Apex Court in Jyoti Basu v. Debi Ghosal, A.I.R. 1982 S.C. 983. 4. Realising this difficulty, learned counsel for the petitioners submits that he may be allowed to file an appropriate election petition in accordance with the statute before the Tribunal. He further submits that the delay that has occurred in filing the instant writ petition may be condoned. We are sorry to say that the law of limitation in regard to raising an election dispute is very strict and no departure therefrom is permissible. There are series of decisions of the Apex Court that even a single day’s delay even if properly explained was not condoned for filing an election petition. 5. In these circumstances, we are constrained to dismiss this writ petition. However, it is open to the petitioner to seek appropriate remedy as may be available to her in accordance with law. Petition dismissed