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Mahendar Prasad Rout Vs. the Election Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1163 of 1975
Judge
Reported inAIR1976Ori1
ActsOrissa Grama Panchayat Act, 1965 - Sections 25(1)(1)
AppellantMahendar Prasad Rout
RespondentThe Election Officer and ors.
Appellant AdvocateS. Misra, Adv. (2)
Respondent AdvocateR.K. Mohapatra, Govt. Adv.
DispositionPetition allowed
Cases ReferredQuebec Railway v. Vendry
Excerpt:
.....this act, if he- xx xx xx (1) being a member of a co-operative society, has failed to pay any arrears 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: the use of the word 'accrued' clearly goes to indicate that the legislature intended to provide that there must nave been a due on the basis of a determination. arising in due course'.it refers to 'the existence of a present enforceable right or 'fixed' or 'assessed and determined'.tax accrues when all events have occurred which fix the amount of tax and determine the tax payer's liability to pay the tax .the use of the word 'accrued in the aforesaid clause of the gram panchayat act, therefore, clearly gives indication that..........papers were filed on 9th of march, 1975 and on the same day scrutiny thereof was taken up by the election officer. opposite party no. 5 claimed at the time of scrutiny that petitioner was disqualified under section 25 (1) (i) of the orissa grama panchayat act (hereafter referred to as the 'act') as he being a member of the khanta-pada service co-operative society had failed to pay paddy loan of the year 1955 together with interest in spite of service of notice on him. the objection was upheld and petitioner's nomination paper was rejected. petitioner has asked for writ of certiorari to quash the order of rejection of the nomination. 2. counter affidavits have been filed on behalf of the election officer (opposite party no. 1) and by opposite party no. 2 justifying the rejection of the.....
Judgment:

R.N. Misra, J.

1. Petitioner and opposite parties 2 to 5 were candidates for election to the post of Sarpanch of the Kasaba Jaipur Grama Panchayat in the district of Balasore. Nomination papers were filed on 9th of March, 1975 and on the same day scrutiny thereof was taken up by the Election Officer. Opposite party No. 5 claimed at the time of scrutiny that petitioner was disqualified under Section 25 (1) (I) of the Orissa Grama Panchayat Act (hereafter referred to as the 'Act') as he being a member of the Khanta-pada Service Co-operative Society had failed to pay paddy loan of the year 1955 together with interest in spite of service of notice on him. The objection was upheld and petitioner's nomination paper was rejected. Petitioner has asked for writ of certiorari to quash the order of rejection of the nomination.

2. Counter affidavits have been filed on behalf of the Election Officer (opposite party No. 1) and by opposite party No. 2 justifying the rejection of the nomination paper on the basis that petitioner was disqualified under the provisions of Section 25 (1) (1) of the Act. It was claimed that relief by way of an election petition was available under the Act and since the fact as to whether petitioner was in arrears was in dispute, the matter should be left to be adjudicated on the basis of evidence in the prescribed forum.

3. Mr. Misra for petitioner claimedthat the factual dispute need not be examined as petitioner would succeed on the admitted position that there has been no adjudication in regard to the default. He placed reliance on three reported decisions of this Court in support of his claim.

4. When this application came up before a Division Bench for hearing, for petitioner reliance was placed on the said three decisions wherein it has been held that inorder to attract the disqualification under Section 25(1) (1) of the Act that arrears are due theymust have been adjudicated by a competent forum and a notice of demand servedupon the candidate following such adjudication must have remained unsatisfied after thetime specified therein for payment has expired. Learned Government Advocate disputedthe correctness of these decisions and claimed that the matter should be examined by alarger Bench on the basis that the meaninggiven to the words 'accrued due' was contrary to binding authorities.

5. Section 25 (1) (I) of the Act provides;--

(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-

XX XX XX (1) being a member of a Co-operative Society, has failed to pay any arrears 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;'

This provision came to be construed by three Division Benches of this Court. In the case of Gobind y. Darsan, AIR 1970 On 15, the learned Chief Justice and R. N. Misra, J., took the view that:

'In terms of the requirements of Section 25 (1) (1), the arrears must have accrued due in order that the disqualification may arise. The use of the word 'accrued' clearly goes to indicate that the legislature intended to provide that there must nave been a due on the basis of a determination. 'Accrued' means, according to the dictionary, 'to arise or spring as a natural growth or result; coming as a natural accession or result; arising in due course'. It refers to 'the existence of a present enforceable right or 'fixed' or 'assessed and determined'. Tax accrues when all events have occurred which fix the amount of tax and determine the tax payer's liability to pay the tax . . The use of the word 'accrued in the aforesaid clause of the Gram Panchayat Act, therefore, clearly gives indication that the disqualification is contemplated to arise only when there has been an ascertainment or dues and the Society has the right in presenti to recover the said amount and in spite of quantification of the liability and consequent notice of demand to pay, the concerned person has defaulted. A mere demand raised by the Co-operative Stores on the basis that a certain sum of money is payable by the petitioner when he refuses his liability to pay the same cannot give rise to a position when it can be said mat a certain amount has 'accrued due' to the Stores.'

The decision was followed in terms by a Bench consisting of R. N. Misra and B. K. Ray, JJ. in the case of Radhakanta Dandasena v. Sub-Divisional Officer, Parlakhemundi, 1972 (2) Cut WR 1506.

In the case of Narayan Swain v. Narendra Kumar Sahu, 1972 (2) Cut WR 2020, the learned Chief Justice and S. K. Ray, J. examined the position without referring to the two decisions referred to above and stated that the following requirements were to be satisfied for upholding the disqualification under Section 25 (1) (1):--

' (i) The person has failed to pay any arrears of any kind, being a member of a co-operative society, to such society before filing of the nomination paper;

(ii) The arrears of any kind must have accrued due by the person which means not only there would be arrears, but the arrears must have been determined under the Act to be payable;

(iii) In respect of such arrears a bill or a notice has beep served upon the person; and

(iv) If any time for payment was prescribed in the bill or notice, such time must have expired.'

In an unreported decision in the case of Basudev Bariha v. Election Officer, Dunguripalli (O. J. C. No. 1184 of 1975 disposed of by R. N. Misra and Panda, JJ., on 16-6-1975 (Orissa)), the provisions under Sec. 25 (1) (I) of the Act came up for consideration. During hearing of that case, learned Government Advocate claimed that the matter should be referred to a larger Bench almost on the same reasons on which he wants review of the earlier decisions contending those to have been erroneously decided. Relying upon the decisions in the case of I. T. Commr v. Thiagaraja, AIR 1953 SC 527 and E. D. Sassoon and Co. Ltd. v. I. T. Commissioner, Bombay AIR 1954 SC 470, the learned Government Advocate contended that 'accrual of income' had nothing to do with 'computation' thereof. 'Computation' required determination while 'accrual' did not. A decision of the Madras High Court in the case of V. Rama-swami v. I. T. Commr., AIR 1959 Mad 126 was also relied upon to show the difference in the meanings of the terms 'accrues', 'arises' and 'is received'. The Division Bench declined to refer the matter to a larger Bench by saying:--

'These two words 'accrue' 'and due' have various meannigs and in a given case where both of them are used together, the true meaning thereof has to be ascertained.

'Accrued due' used in Section 25 (1) (1), of the Act cannot be given any other meaning than has beep adopted in the three decisions of this Court referred to above. The Election Officer has no jurisdiction to determine whether the debt has accrued due. Under the Co-operative Law, a machinery has been provided to decide all disputes in relation to dues. In fact, Section 68 of the Co-operative Societies Act makes clear provisions for it and has even ousted the jurisdiction of the common law court in regard to such a dispute. The State Legislature must be deemed to have had due notice of such an existing statutory provision. Therefore, when a plea of disqualification is raised and the candidate whose nomination is assailed disputes the claim of the objector, the Election Officer cannot enter into an adjudicating process because he has none. The decisions of this Court have, therefore, rightly taken the view that the Legislature intended that the disqualification on the basis of non-payment of accrued dues will be confined to cases where there had been an adjudication and the liability had become final following quantification. If any other meaning is given to the term, the purpose of the statute would be frustrated and a power would be conferred on the Election Officer which he does not have .........'

6. The first decision on the point was rendered by this Court as early as 1-8-69 (AIR 1970 Ori 15). The interpretation of the provision made in the aforesaid decision has been consistently followed by the Court. The State Legislature must have been aware of the interpretation put by this Court on the said provision. Though extensive amendments to the Act were undertaken in 1974 and 1975 (vide Orissa Acts 6 and 9 respectively), the Legislature has not thought it appropriate to amend the law and declare its intention in case it was otherwise. In the case of Ram Nandan v. Kapildeo, AIR 1951 SC 155, it has been pointed out: --

'...... If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legislature to intervene. But far from doing so, it has acquiesced, during all these years, in the construction, which the Patna H.C. has been placing upon the section from the very next year after the enactment of the statute. Having regard to the great obscurity in the language employed in the relevant provisions and the inaction of the Legislature, it is in our opinion, legitimate to infer that the view expressed by the Patna H.C. is in accord with the intention of the Legislature.'

Since the rendering of the judgment by this Court in the case reported in AIR 1970 Ori 15, there has been a general election to all Grama Panchayats apart from several bye-elections and the decisions rendered by this Court have been consistently followed by the authorities entrusted with the conduct of elections and the Legislature having not intervened to alter the law, it must follow that the interpretation put by the Court is in accord with the intention of the Legislature.

7. If Clause (1) was to 'be interpreted the way learned Government Advocate wants us to do, the words 'accrued due by him' would be wholly unnecessary and without them the meaning contended for would be available. With the omission of these words, the impugned clause would read thus:--

'being a member of a Co-operative Society, has failed to pay any arrears of any kind (..........) to such society before filing of the nomination paper in accordance with the provisions of this Act and the rules made thereunder:..........'

It has been pointed out by Patanjali Sastri C.J. in the case of Aswini Kumar v. Arabinda Bose, AIR 1952 SC 369:

'. .It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appriate application in circumstances conceivable within the contemplation of the statute.'

In the case of Quebec Railway v. Vendry, AIR 1920 PC 181, the Judicial Committee in clear terms indicated that the Legislature is deemed not to waste its words or to say anything in vain. A construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. The words 'accrued due by him' cannot, therefore, be considered as redundant and full meaning must be given to these words.

8. Undoubtedly in taxing statutes, theword 'accrue' has been given a meaning. Inabsence of definition, the meaning attributedto the word in common parlance has to beadopted and where a word has shades ofmeanings, in a particular context, the meaningmay be different from what it would be whenused in a different context. In Section 25(1) (1), the disqualification was intended toarise only when there was an adjudicated arrear and in spite of demand it remained unsatisfied. The Legislature has used thewords in that clause with a view to givingeffect to such an intention.

9. This Court has consistently interpreted the provision to cover cases of only adjudged arrears and defaults following demands thereafter. In the absence of adjudicatory jurisdiction conferred on the Election Officer and in view of the fact that jurisdiction of the common law courts has been excluded and disputes relating to arrears have been reserved for determination by the machinery prescribed under the Orissa Co-operative Societies Act, the Legislature must be taken to have intended, the position as has been interpreted by this Court to be the true meaning of the provision.

10. Disqualification under Section 25 (1) (1), therefore, arises when the dispute relating to arrears had been adjudicated and quantified arrears remain unpaid in spite of notice duly served upon the debtor candidate. The view taken in the four earlier decisions of this Court, therefore, is correct.

11. The writ application is accordingly allowed and the order of the Election Officer rejecting the nomination paper petitioner is quashed. Petitioner was excluded from the election. The election which has been held in the meantime is, therefore, vitiated and the same is also vacated. We direct that a writ of mandamus be issued to opposite party No. 1 to hold fresh election in accordance with law. Petitioner shall have costs of this application. Hearing fee is assessed at rupees one hundred

G.K. Misra, C.J.

12. I agree.

B.K. Ray, J.

13. I agree.


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