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2010 DIGILAW 532 (ORI)

Sarat Chandra Pradhan v. State of Orissa

2010-07-30

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application prays for declaration that the election of the members of the Project Committee is in contravention of the provisions contained in the Pani Panchayat Act, 2002 and the Rules made thereunder. 2. Case of the petitioner is that he is the elected President of Maa Kali Pani Panchayat under Baghua Irrigation Project. There are other 18 Presidents who have been elected from different Pani Panchayats and all these Pani Panchayats are under Baghua Irrigation Project. Every Pani Panchayat has three office bearers i.e. President, Secretary and Treasurer and they are also the General Body members of the Project Committee. All of them are required to elect 9 Executive Body Members as well as the President, Secretary and Treasurer of the Project Committee. According to the petitioner, Project Committee of Baghua Irriga¬tion Project having 19 Pani Panchayats under it should consist of 57 members. However, the Chief Engineer, Irrigation Rushikulya, Bansadhara and Nagabali issued a notice to hold election of the Baghua Project Committee on 5.10.2008 at Kadamba Matha. In the corresponding notification, only 19 Pani Panchayat Presidents were directed to attend the meeting for the purpose of election of the President, Secretary and Treasurer of the Project Commit¬tee. Out of the 19 Presidents, who are members of General Body of the Project Committee, 16 filed their nominations. According to the provisions contained in the Act and the Rules, each nomina¬tion has to be proposed and seconded by two members and, there¬fore, in respect of 16 nominations it could not have been possi¬ble to propose and second, only 19 Presidents having been called for the purpose of election. According to the petitioner, had all the 57 members from 19 Pani Panchayats such as President, Secre¬tary and Treasurer been called, each nomination could have at least one proposer and one seconder. It is also case of the peti¬tioner that the election is supposed to be held at a public place, but the same was conducted in Kadamba Matha, which is the private property of one Kabiraj Gouda and therefore, holding of the election at such a place is null and void. It is also case of the peti¬tioner that the election is supposed to be held at a public place, but the same was conducted in Kadamba Matha, which is the private property of one Kabiraj Gouda and therefore, holding of the election at such a place is null and void. The other ground on which the election is challenged is that though the provisions contained in the Act provided that the Chief Engineer should be the Election Officer, in the present case the Executive Engineer was appointed as the Election Officer. On the above three grounds the petitioner seeks to challenge the election of the President, Secretary and Treasurer of the Baghua Project Committee. 3. A counter affidavit has been filed by the opposite parties 1 to 6 and it is stated that in terms of Section 7(5) of Orissa Pani Panchayat Act, 2002 all the Presidents of the Pani Panchayats within the project area shall constitute a General Body for the Project Committee and accordingly, these 19 Presi¬dents have formed the General Body of the Project Committee and they elected 9 members for the Executive Committee in terms of Section 8(1) of the Act. The President, Secretary and the Treas¬urer have been elected from amongst the members of the Executive Committee in terms of Section 8(2) and 8(6) of the Act. So far as nomination is concerned, it is stated in paragraph 9 of the counter affidavit that under Rule 42(6) of Orissa Pani Panchayat Rules, 2003, nomination paper of the candidate for the purpose of Executive Committee shall be signed by him expressing his willingness to contest the election and the same shall be signed by at least two members of the General Body and shall be presented to the Election Officer. Therefore, it is not necessary that if any particular members signs nomination of one cannot sign the nomination of another. So far as place of election is concerned, it is stated in paragraph-10 of the counter affidavit that Kadamba matha is a public place and there is nothing on record to show that it be¬longs to one Kabiraj Gouda. The documents rather go to show that Kadamba Matha belongs to Sri Sri Raghunath Swami Bije Kadamba Matha and, therefore, it is a public place. The documents rather go to show that Kadamba Matha belongs to Sri Sri Raghunath Swami Bije Kadamba Matha and, therefore, it is a public place. So far as appointment of the Executive Engineer as the Election Officer is concerned, referring to Section 37(3) of Orissa Pani Panchayat Act, 2003 it is stated in paragraph-12 of the counter affidavit that any Gazetted Officer can be appointed to be the Election Officer and, therefore, the Executive Engi¬neer, Bhanjanagar Irrigation Division had been rightly appointed as the Election Officer. 4. The first point raised by the learned counsel for the petitioner is in relation to formation of General Body for the Project Committee. According to the petitioner, the President, Secretary and Treasurer of each Pani Panchayat should be a member of the General Body of Project Committee and accordingly in respect of 19 Pani Panchayats functioning under Baghua Irrigation Project, the General Body of the Project Committee should con¬sists of 57 members. Section 4 of the Act deals with election of Chak Committee and that of the President and members of the Executive Committee of Pani Panchayat. Section 8 of the Act deals with election of President and constitution of the Executive Committee of the Project Committee. Section 8 provides that there shall be an Executive Committee for every Project Committee which shall consist of the members elected by the General Body of the Project Committee in the manner prescribed and by the method of secret ballot and shall not be more than nine. It further pro¬vides that members of the Executive Committee shall elect its President from among themselves in the manner prescribed and the Chief Engineer shall make arrangement for such election. Rule 42 of Pani Panchayat Rules, 2003 provides that the General Body of the Project Committee shall be formed by all the Presidents, the Secretaries and the Treasurers of the Distributary Committees situated within the Project area. Rule 42(6) provides that nomi¬nation paper of the candidate for the Executive Committee shall be signed by him expressing his willingness to contest the elec¬tion which shall be signed by at least two members of the General Body and shall be presented to the Election Officer. Rule 42(6) provides that nomi¬nation paper of the candidate for the Executive Committee shall be signed by him expressing his willingness to contest the elec¬tion which shall be signed by at least two members of the General Body and shall be presented to the Election Officer. On reading of Rule 42(1) of the 2003 Rules, it is clear that the General Body of the Project Committee shall be formed by all the Presi¬dents, the Secretaries and the Treasurers of the Distributary Committees situated within the project area. Section 5 of the Act provides for constitution of Distributary Committee. Section 5(2) provides that there shall be a Distributary Committee called by its local distinct name for every distributary area declared as such under Sub-section (1) and Sub-section (3) (a) provides that every Distributary Committee shall consists of the President, Secretary and Treasurer of the Pani Panchayat in the Distributary area, so long as they hold such office, and shall be General Body of the Distributary Committee. Rule 7(3) (a) of the act provides that every Project Committee shall consist of all the Presidents, Secretaries and Treasurers of the Distributary Committee in the project area, so long as they hold such office and shall be the General Body for the Project Committee. Therefore, there is substance in the contention of the learned counsel appearing for the petitioner that the General Body of the Project Committee cannot consist of the Presidents of Pani Panchayat operating within the project area and it has to consist of the Presidents, Secretaries and Treasurers of the Distributary Committees formed within the project area. There is nothing in the counter affida¬vit to show that the General Body of the Project Committee had been formed taking the Presidents, Secretaries and Treasurers of the Distributary Committee into consideration and it appears that only the Presidents of the Pani Panchayats have formed the Gener¬al Body of the Project Committee. Therefore, there is clear infraction of Section 7(3)(a) of the Act read with Rule 42(1) of the 2003 Rules. Since on this ground along the election of the Executive Members as well as the President, Secretary and Treas¬urer of Project Committee is liable to be set aside, we have not gone into the other legal points raised by the learned counsel for the petitioner. 5. Since on this ground along the election of the Executive Members as well as the President, Secretary and Treas¬urer of Project Committee is liable to be set aside, we have not gone into the other legal points raised by the learned counsel for the petitioner. 5. We accordingly allow the writ application, set aside the election of the President, Secretary and Treasurer as well as the members of the Executive Committee of the Baghua Project Committee and direct the opposite parties to hold fresh election in terms of Section 7 of the Act read with Rule 42 of the Pani Panchayat Rules, 2003. C.R. DASH, J. I agree. Application allowed.