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2016 DIGILAW 238 (ORI)

Dillip Kumar Sahoo v. Collector

2016-03-29

B.K.NAYAK

body2016
JUDGMENT : B.K. Nayak, J. 1. In this writ application the petitioner challenges the order dated 13.09.2013 passed by the Collector, Puri in G.P. Misc. Case No. 04 of 2012 declaring the petitioner disqualified to hold the office of Sarpanch. The petitioner was elected as Sarpanch of Bedapur Grama Panchayat under Gop Block in the district of Puri on 24.02.2012. Opposite party No. 3 filed a complaint and also an additional petition before the Collector, Puri alleging therein that the present petitioner was disqualified to hold the office of Sarpanch as he was disqualified under Section 25(1)(h) and (n) of the Orissa Panchayat Act (in short, 'the Act') since he holds office of profit under the State Government and also that he had a subsisting contract with the Government. The petition was registered as G.P. Misc. Case No. 04 of 2012. 2. On receipt of notice in the said proceeding, the petitioner filed his show cause stating that prior to his election he had applied for appointment as a Transport Contractor in pursuance to an advertisement made by the Orissa State Civil Supplies Corporation Limited (in short, 'the Corporation') and he was selected as a Transport Contractor after he was elected as Sarpanch and that soon thereafter he submitted an application for cancellation of his Transport Contract which was approved and accepted with effect from 06.05.2012 as per letter of the District Manager of the Corporation as at Annexure-4 and, therefore, he does not suffer from the disqualification as alleged. 3. By the impugned order, the Collector, Puri held that after his election as Sarpanch, the petitioner was doing the job of handling and transporting contractor under the Public Distribution System as per order No. 535 dated 19.03.2012 and as such has got pecuniary interest in the contract and, therefore, he was disqualified under Section 25(1)(h) and (n) of the Act for holding the office of Sarpanch. It was also held that it was immaterial whether he has received any remuneration or contractual value for the job/contract. 4. It was also held that it was immaterial whether he has received any remuneration or contractual value for the job/contract. 4. It is the submission of the learned Counsel for the petitioner that prior to his election as Sarpanch, the petitioner had applied to be appointed as a handing and transporting contractor of P.D.S. materials under the Corporation and that he was elected Sarpanch in the month of February, 2012, by which time the contract had not been granted in his favour and, therefore, he had not incurred disqualification for being elected at the first place. It is also his submission that after his election in the month of February, 2012 when he got the contract in the month of March, 2012, he immediately applied for resignation from his contractor ship and for cancellation of the contract which was also accepted and as such on the date of impugned order, there was no disqualification. Alternatively, he also submits that mere grant of transport contract under the Corporation does not amount to holding an office of profit under the State or the Grama Panchayat. His further contention is that the contract was not subsisting on the date of the impugned order and that the contract was not in relation to any work done for the Grama Panchayat or for the Government. 5. In the case of Srikant v. Vasantrao & other: 2006 (I) OLR (SC) 393, interpreting the provision of Section 9-A of the Representation of the People Act providing for disqualification for election on the ground of subsisting contract with the appropriate Government, it was held by the Hon'ble Apex Court in the matter of contract with the Godawari Marathwada Irrigation Development Corporation, which was a Government Corporation that though the Corporation may be an authority for the purpose Part-III of the Constitution, the same shall not be treated as a State or any other local or other authority for any other purpose. 6. Section 25(1)(n) of the Orissa Grama Panchayat Act only disqualifying a person, who is interested in a subsisting contract made with or in connection with work done for the Grama Panchayat or Panchayat Samiti or any Government. 6. Section 25(1)(n) of the Orissa Grama Panchayat Act only disqualifying a person, who is interested in a subsisting contract made with or in connection with work done for the Grama Panchayat or Panchayat Samiti or any Government. Therefore, entering into a contract with the Corporation in the instant case, which is a Government Corporation, cannot be interpreted to be a contract with the Government, and therefore, the petitioner cannot be said to be disqualified under the above provision. That apart it is also the admitted factual position that at the time of filing of nomination and his election as Sarpanch no contract had been granted in favour of the petitioner. Similarly soon after getting the contract he resigned from his contractor ship, which was accepted by the Corporation and, therefore, at the time of passing of the impugned order by the Collector there was no subsisting contract with the State or any local authority. Therefore, he also could not have been declared disqualified to continue in the office of Sarpanch. 7. With regard to the question of 'office of profit' occurring in Section 25(1)(h) of the Orissa Grama Panchayat Act, it cannot be said that the relationship between the parties arising but of a contract, for which no fixed or ascertainable remuneration or fees are fixed would amount to an office of profit. Nothing has been brought on record as to the terms of the contract. Learned State Counsel has not brought to my notice any interpretation of law or precedent to the effect that a party under a contract entered into with the Government or the authority as the case may be. On the contrary, he conceded that the petitioner as a contractor under the Corporation cannot be said to have held an office of profit under the State or Central Government. In the light of the discussions made above, I am of the view that the impugned order is illegal and unsustainable in the eye of law and accordingly I quash the same. No costs.