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2019 DIGILAW 155 (ORI)

Tikayat Naik v. State of Odisha

2019-02-26

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This is a writ petition filed by the election petitioner seeking indulgence of this Court in the order dated 16.12.2017 vide Annexure-7 involving rejection of a dispute under Section 26(2) of the Grama Panchayat Act, 1964 involving Balibandha Grama Panchayat under Jhumpura Block of Keonjhar district. The Section 26 (2) of the Orissa Grama Panchayat Act proceeding before the Collector, Keonjhar was dismissed for devoid of merit. 2. Short background involved in the case is that both the petitioner as well as the opposite party no.5 herein were the candidates in the election for the post of Sarpanch, Balibandha Grama Panchayat under Jhumpura Block of Keonjhar district, a reserved seat. During election process, on coming to know that there is some dispute with regard to the date of birth of the opposite party no.5, making him ineligible to contest the election, for being not completed 21 years, the petitioner during the process of Election filed written objection before the Block Development Officer, Jhumpura Block opposite party no.4 on the date of scrutiny. It is alleged that on keeping the consideration of such application pending, the election was conducted and in the process, opposite party no.5 was declared elected for the post of Sarpanch on the declaration of result on 27.2.2017. It appears, on 10.3.2017, the petitioner submitted a representation to the Collector, Keonjhar-opposite party no.2 for initiating a proceeding under Section 26(2) of the Orissa Grama Panchayat Act bringing into the notice of the Collector that opposite party no.5 since not completed minimum age of 21 years as on the date of nomination, was ineligible to contest for the post of Sarpanch applying the provision under Section 11(b) of the Orissa Grama Panchayat Act and that opposite party no.5 has participated in the election on false affidavit involving her date of birth as well as residential certificate. It is further alleged that despite repeated approaches, the Collector did not take appropriate steps within the reasonable period, for which petitioner was compelled to move this Court W.P.(C).No.9284 of 2017, which got disposed of on 19.5.2017 with permission, on withdrawal of the writ petition, to the petitioner for taking resort to proceeding under Section 26(2) of the Orissa Grama Panchayat Act (hereinafter called as “the Act”) to the Collector, Keonjhar. Consequent upon such permission, the petitioner moved the proceeding under Section 26(2) of the Act, which was decided on contest with an order of dismissal. Thus, the writ petition involves the challenge to the said impugned order at Annexure-7. 3. Taking to the documents taken in support of the proceeding under Section 26(2) and the provision contained at Section 11(b) of the Act, Mrs. Sujata Jena, learned counsel appearing for the petitioner contended that there is failure of appreciating the allegation involved therein by the Collector and thereby resulting the illegal order of the Collector, which unless be interfered, the impugned order will lead to bad precedent. Mrs. Jena, learned counsel for the petitioner taking this Court to the documents taken in support of the plea of the petitioner before the Collector, further taking this Court to the discussions in the dismissal order of the Collector, submitted that there is no proper appreciation on the allegation of the petitioner resulting the bad impugned order assailed in the writ petition. Taking this Court to the documents and the provision at Section 11(b) of the Orissa Grama Panchayat Act, Mrs.Jena substantiating her contention submitted that for the wrong impugned order, this Court is required to interfere in the impugned order and set aside the same. Mrs. Jena also taking support of two decisions in the case of Debaki Jani v. The Collector and another, 2014 (1) OLR (FB) 867 and in the case of K.Venkatachalam v. A.Swamickan and another, AIR 1999 SC 1723 , submitted that for the decisions referred to herein above even though a proceeding under Section 26 (2) of the Orissa Grama Panchayat Act is not maintainable yet High Court in exercise of power under Article 226 of the Constitution of India can interfere in such dispute and grant appropriate relief. 4. In his opposition, Sri S.K.Dalai, learned counsel, representing the counsel on behalf of opposite party no.5 contended that in the event of any of the breach of provision at Section 11 of the Orissa Grama Panchayat Act, nothing prevented the petitioner to approach the Election Tribunal involving the dispute therein. 4. In his opposition, Sri S.K.Dalai, learned counsel, representing the counsel on behalf of opposite party no.5 contended that in the event of any of the breach of provision at Section 11 of the Orissa Grama Panchayat Act, nothing prevented the petitioner to approach the Election Tribunal involving the dispute therein. In filing a copy of the election dispute, taking this Court to the plaint of the petitioner submitted before the Collector and the document involving the case, Sri Dalai, learned counsel appearing for the opposite party no.5 taking this Court to the provision contained in Section 25 of the Orissa Grama Panchayat Act contended that for no breach of the conditions involving Section 25 of the Orissa Grama Panchayat Act, there was no question of entertaining the application under Section 26(2) of the Act. Sri Dalai, learned counsel further submitted that High Court of Orissa in disposal of the writ petition permitting the petitioner to raise dispute under Section 26(2) of the Act can be maximum construed a consideration of the case of the petitioner under the provision of Section 26(2) of the Act and under no circumstance can be construed to be a proceeding in the trap of election dispute. Sri Dalai, learned counsel further taking this Court to a decision of this Court in the case of Mamita Thati v. Nepura Pradhan and Anr., 116(2013)CLT 593, further taking this Court to the cardinal principle decided by the Hon’ble Apex Court, if a thing is required to be done in a particular manner, that has to be done in that manner or not at all, contended that for the clear provision enabling involvement of an election dispute involving the Orissa Grama Panchayat Act and further involvement of the allegation, more particularly, there was no question of interfering in the application under Section 26(2) of the Act. Sri Dalai, learned counsel for the petitioner further taking this Court to the requirement of law under the Grama Panchayat Act contended that for the provision at Section 11(b) a person contesting election for the post of Sarpanch is required to attained the age of 21 years. Sri Dalai, learned counsel for the petitioner further taking this Court to the requirement of law under the Grama Panchayat Act contended that for the provision at Section 11(b) a person contesting election for the post of Sarpanch is required to attained the age of 21 years. Thus taking the allegation involved herein, Sri Dalai learned counsel for the contesting opposite party submitted that the opposite party had already completed the age of 20 years and has thus attained 21 years of age and it is not necessary that she has completed the age of 21 years. It is in the above premises, Sri Dalai learned counsel requested this Court for not interfering in the impugned order and prays for dismissal of the writ petition. 5. Considering the rival contentions of the parties and for the relevancy with regard to the provision at Section 11(b) as well as Section 25 of the Orissa Grama Panchayat Act, this Court finds it necessary to take note of both the provisions, which runs as follows: Section 11(b) of the Orissa Grama Panchayat Act; Qualification for membership in the Grama Panchayat: xxx xxx xxx (b) as a Sarpanch or Naib-Sarpanch, if he has not attained the age of twenty-one years or is unable to read and write Oriya; xxx xxx xxx xxx xxx xxx Section 25 of the Orissa Grama Panchayat Act. Disqualification for membership of Grama Panchayat: (1) A person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he- (a) is not a citizen of India; or (b) is not on the electoral roll in respect of the Grama or of the ward, as the case may be; or (c) is of unsound mind; or (d) is an applicant to be adjudicated as an insolvent or is an undischarged insolvent; or (e) is a deaf-mute, or is suffering from tuberculosis, or in the opinion of the District Leprosy Officer is suffering from an infectious type of leprosy; or (f) is convicted of an election offence under any law for the time being in force; or (g) is convicted for an offence involving moral turpitude and sentenced to imprisonment of not less than six months unless a period of five years has elapsed since his release or is ordered to give security for good behavior under Section 110 of the Code of Criminal Procedure, 1898 (5 of 1998); or (h) holds any office of profit under the State or Central Government or any local authority; or (i) is a teacher in any school recognized under the provisions of the Orissa Education Code for the time being in force; or (j) holds the office of a Minister either in the Central or State Government; or (k) has been dismissed from the service of the State Government or of any local authority; or (l) being a member of a Co-operative society, has failed to pay any arrear of any kind accrued due by him to such society before filing of the nomination paper in accordance with the provisions of this Act and the rules made thereunder; Provided that in respect of such arrears a bill or a notice has been duly served upon him and the time, if any, specified therein has expired; or (m) is in the habit of encouraging litigation in the Grama and has been declared to be so on enquiry by the Collector in the prescribed manner or by any other authority under any law for the time being in force; or (n) is interested in a subsisting contract made with or in any work being done for the Grama Panchayat or the Samiti, or any government except as a shareholder other than a Director in an incorporated company or as a member of a Co-operative Society; or (o) is a paid and trained legal practitioner on behalf of the Grama Sasan; or (p) is a member of the Orissa Legislative Assembly or of either of the Houses of Parliament; or (q) is a member of the Samiti elected under Clause (h) of Sub-Section (1) of Section 16 of the Orissa Panchayat Samiti Act, 1959 (Orissa Act 7 of 1960); or (r) is disqualified by or under any law for the time being in force for the purposes of an election to be Legislature of the State; or (s) is disqualified by or under any law made by the Legislature of the State; or (t) is in arrear of any dues payable by him to the Grama Panchayat; or (u) has more than one spouse living; or (v) has more than two children; Provided that the disqualification under Clause (v) shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayats (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year; 2. A Sarpanch or any other member of a Grama Panchayat shall be disqualified to continue and shall cease to be a member if he- (a) incurs any of the disqualifications specified in Clauses (a) to (i) “Clauses (m) to (p) and Clauses (t) to (v) or Sub-section (1); or (b) has failed to attend three consecutive ordinary meetings held during a period of four months commencing with effect from the date of the last meeting which he has failed to attend, or (c) being a legal practitioner appears or acts as such against the Grama Sasan; or (d) Being a member of a Co-operative Society has failed to pay any arrears of any kind accrued due by him to such society within six months after a notice in this behalf has been served upon him by the society. (3) Without prejudice to the provisions of the foregoing Sub-sections the Sarpacnh of a Grama Panchayat shall be disqualified to continue and cease to be the Sarpanch, if he fails to attend three consecutive ordinary meetings of the Samiti, of which he is a member, without the previous permission in writing of the said Samiti; (4) Notwithstanding anything contained in the foregoing sub-sections- (a) The State Government may remove any one or more of the disqualifications specified in Clauses (f), (g), (k) and (l) of Sub-section (1); (b) When a person ceases to be a Sarpanch or Naib-Sarpanch or any other member in pursuance of Clause (g) of Sub-section (1), he shall be restored to office for such portion of the term of office as may remain unexpired on the date of such restoration, if the sentence is reversed or quashed or appeal or revision on the offence is pardoned or the disqualification is removed by an order of the State Government; and any person filling the vacancy in the interim period shall on such restoration vacate the office.” Reading both the above provisions, this Court from reading of Section 11(b) of the Act, finds this is a provision making a candidate for the post of Sarpanch and Naib-Sarpanch ineligible, if he has not attained the age of 21 years or is unable to read and write Oriya. Looking to the allegation in the plaint to the Collector, it became clear that the challenge is made to the election of the petitioner to the post of Sarpanch on her not satisfying the age criteria at Section 11(b) of the Orissa Grama Panchayat Act. However, in the specific ground of challenge, this Court finds for there being no availability of the ground under Section 25 of the Orissa Grama Panchayat Act, the only remedy for the petitioner was to avail the remedy under Section 30 of the Orissa Grama Panchayat Act. Admittedly, there is no election dispute within the time framed. Further, facts involved herein also discloses that the petitioner moved this Court in an earlier writ petition much after the time for raising an election dispute, may be for no scope available to the petitioner, this Court considering the liberty requested by the petitioner and as an application under Section 26(2) of the Orissa Grama Panchayat Act was already pending before the Collector, this Court permitted her to move under Section 26(2) of the Act to the Collector of the concerned district. Now looking to the provision at Section 25 read with Section 26(2) of the Act, this Court finds the provision at Section 25 does not include ineligibility of a candidate on account of not attaining the age of 21 years on the date of filing of the nomination. Further, reading of both the provisions at Section 11 as well as Section 25 of the Orissa Grama Panchayat Act, this Court finds Section 11 of the Act deals with qualification for membership in a Grama Panchayat election whereas Section 25 of the Act deals with disqualification of membership of a Grama Panchayat for being elected or nominated as a Sarpanch. Provision at Section 11 of the Act restricts the persons from contesting the election. Provision at Section 25 of the Act restricts a person from continuing even after being elected. Looking to the allegation, particularly, attracting the provision at Section 11(b) of the Act to make the elected candidate disqualified, here looking to the provision at Section 26 of the Act, this Court finds the Section 26 of the Act provides procedure to give effect to disqualification, which undoubtedly means the cases involving the adjudication of disqualification as enumerated under section 25 of the Act. Therefore, this Court is of no doubt that for the attraction of provision at Section 11(b) of the Act, to the case at hand, the only remedy available to the petitioner was to prefer an Election Dispute under section 30 of the Act and no proceeding under Section 26(2) of the Act is maintainable particularly for the involvement of election of elected Sarpanch having not got the eligibility to contest the election for not his attaining the age of 21 years. It is in the circumstance, this Court finds the proceeding under Section 26(2) of the Act, 1964 was per se not maintainable. It is suffice to mention here that proceeding under Section 26 of the Act can only be invited in the event there is attraction of any disqualification clause involving Section 25 of the Act. For the involvement of the provision of section 11(b) of the Act, proceeding under Section 26 of the Act was not maintainable and should have been dismissed by the Collector on this ground alone. It is at this stage, a decision of this Court in the case of Smt. Parbati Majhi v. Collector, Kalahandi and another, 2008(2) OLR 198 where the case also involves initiation of a proceeding under Section 26(2) of the Act on account of the elected Sarpanch not attaining the age of 21 years thereby attracting the provision of section 11(b) of the Act. In the aforesaid decision, this Court in a Single Bench has also the view that in such circumstance, the only remedy was to go for the election dispute and proceeding under Section 26(2) of the Act was not maintainable. For the observation of this Court that the proceeding under Section 26(2) of the Act before the Collector was not maintainable, this Court is not inclined to interfere in the merit involving the impugned order leaving other issues involved herein to be decided in appropriate application, if any, raised. 6. It is at this stage, considering the other request of the learned counsel for the petitioner that for the allegation contained therein, this Court had otherwise the scope of interfering in the impugned action in exercise of power under Article 226 of the Constitution of India. 6. It is at this stage, considering the other request of the learned counsel for the petitioner that for the allegation contained therein, this Court had otherwise the scope of interfering in the impugned action in exercise of power under Article 226 of the Constitution of India. This Court taking into account the nature of the writ petition, the cause title, the pleadings, the prayer and the challenge to the impugned order herein finds the writ petition even though nomenclated as an application under Article 226 read with Article 227 of the Constitution of India can under no stretch of imagination, be construed to be a writ petition under Article 226 of the Constitution of India. For the exercise of power of this Court under Article 227 of the Constitution of India, this Court finds the nature of contest cannot expand its jurisdiction and treat the writ petition a petition under Article 226 of the Constitution of India. In the circumstances, this Court observes that there is no application of the decision in the case of K.Venkatachalam (supra) to the case at hand. 7. In the circumstance and for the finding of this Court that application under Section 26(2) of the Orissa Grama Panchayat Act for the facts involved therein was otherwise not maintainable, this Court, accordingly, finds no scope for interfering in the impugned order involving the writ petition. Consequently, the writ petition fails. However, there is no order as to cost.