Skip to content


Gobind Ch. Panda Vs. Darsan Ch. Rout and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 352 of 1969
Judge
Reported inAIR1970Ori15; 35(1969)CLT1108
ActsOrissa Panchayat Samities and Zilla Parishads Act, 1960 - Sections 16(3), 25(1) and 44A; Gram Panchayat Act; Constitution of India - Articles 226 and 227
AppellantGobind Ch. Panda
RespondentDarsan Ch. Rout and ors.
Appellant AdvocateS. Misra, ;B. Das, ;S.K. Mohanty, Advs.
Respondent AdvocateAdv. General, ;S.C. Roy, J.N. Mohapatra, C. Rout and P. Biswal
DispositionPetition allowed
Cases ReferredBaburam v. Zilla Parishad
Excerpt:
.....on the materials on record we must conclude that the election petitioner has failed to satisfy the requirements of clause (1) of section 25 (1) in order to hold that the petitioner was disqualified under the aforesaid provision at the relevant time. it is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. we find that the election commissioner was not alive to the requirements of the statute to give rise to the impugned disqualification and upon a wrong construction of the statutory provisions failed to apply the law properly to the facts of the case. the mistake committed bv the election commissioner has led him to come to an erroneous conclusion in the dispute and the error is manifest upon a mere..........societies act, 1962 (act 2 of 1963) a sum of rs. 910-02 was found due from the petitioner. the society raised a demand against the petitioner, passed resolutions and ultimately lodged a claim in dispute case no. 334 of 1966-67 before the assistant registrar of co-operative societies, balasore. the petitioner did not admit his liability for the aforesaid amount and contended that he had not incurred the disqualification in question.the election commissioner raised several issues for determination in the case. the material issue touching this aspect of the matter was issue no. 2. the election commissioner, by his decision dated 31-3-69, came to hold that the petitioner was disqualified on the aforesaid score and rejected all the other grounds for his disqualification as raised by the.....
Judgment:

R.N. Misra, J.

1. This is an application under Articles 226 and 227 of the Constitution asking for the issue of a writ of certiorari to quash the order passed by the Munsif of Balasore exercising the powers of an Election Commissioner under the provisions of the Orissa Pan-chayat Samiti and Zilla Parishads Act (No. 7 of 1960) (hereinafter referred to as the Act.)

2. The petitioner and opposite parties 1, 2 and 3 were candidates in the contest for the office of the Chairman of the Khaira Panchayat Samiti in the district of Balasore. The election was held on 7-1-68. and the petitioner was declared elected as the Chairman. Opposite party No. 1 thereupon made an election petition before the Munsif of Balasore who is the Commissioner duly appointed under the aforesaid Act. and the said application came to be registered as Election Misc. Case No. 1 of 1968. The election was sought to be challenged on various grounds, and one of them material for our present purpose was that the petitioner had incurred the disqualification prescribed under Section 25 (1) (b) of the Orissa Grama Panchayat Act, 1964, read together with Section 16 (3) (a) of the Act. The facts constituting the said disqualification were as follows :

3. The petitioner was a member and . also the cashier of the Khaira Co-operative Stores and had misappropriated funds. In an audit made under Section 67 (1) of the Orissa Co-operative Societies Act, 1962 (Act 2 of 1963) a sum of Rs. 910-02 was found due from the petitioner. The Society raised a demand against the petitioner, passed resolutions and ultimately lodged a claim in Dispute Case No. 334 of 1966-67 before the Assistant Registrar of Co-operative Societies, Balasore. The petitioner did not admit his liability for the aforesaid amount and contended that he had not incurred the disqualification in question.

The Election Commissioner raised several issues for determination in the case. The material issue touching this aspect of the matter was issue No. 2. The Election Commissioner, by his decision dated 31-3-69, came to hold that the petitioner was disqualified on the aforesaid score and rejected all the other grounds for his disqualification as raised by the opposite party No. 1. No other statutory remedy is provided under the Act against the decision of the Election Commissioner, and the petitioner, therefore, came up before this Court to quash the order of the Election Commissioner.

4. Mr. Srinivas Misra appearing for the petitoner raised two contentions (1) The Election Commissioner has no jurisdiction to entertain a dispute questioning the validity of the election of the Chairman of a Panchayat Samiti and (2) The finding that the petitioner had incurred the disqualification under Section 25 (1) (b) of the Grama Panchayat Act read with Section 16 (3) (a) of the Act was based upon a wrong construction of the law. and, as such, the conclusion of the Election Commissioner was vitiated and there is an error apparent on the face of the record justifying interference of this Court.

5. Chapter VI-A of the Act makes provision for election disputes and Section 44-A of the Act provides,

'No election of a person as a member of Samiti or a Parishad held under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter.' Mr. Misra submits that election disputes are purely statutory proceedings and are not actions at law or suits in equity, and the election Courts possess no common law power. Therefore, once jurisdiction is not conferred under the special statute, the Election Commissioner is not entitled to entertain an election dispute. On a plain reading of Section 44-A, he contends, a dispute relating to the election of a Chairman is not comprehended by the said provision. This contention seems to be absolutely without basis. Section 16 (1) of the Act provides for the constitution of the Samiti and it states who the members of a Samiti would be. By virtue of Section 16 (1) (a), the Chairman of the Samiti, elected in accordance with the provisions of Sub-section (3) (a) of that section, is a member of the Samiti. Therefore, upon his election, the Chairman becomes a member of the Samiti and his election qua chairman is also covered by the provisions of Section 44-A of the Act. It would be relevant to refer to Sub-section (5) of Section 44-B which is also a part of the said Chapter VI-A of the Act. The said sub-section reads as follows :

'No candidate who has been elected to be a Member, Chairman or Vice-Chair-man of a Parishad or Samiti shall be debarred from holding office as such member, Chairman or Vice-Chairman merely by reason of any election petition having been filed against him unless his election has been declared void by the Election Commissioner'.

We are, therefore, not prepared to hold that Section 44-A of the Act does not confer jurisdiction on the Election Commissioner to entertain a dispute relating to the election of the Chairman of a Samiti. The first contention raised by Mr. Misra, therefore, fails. The Election Commissioner had jurisdiction to entertain the election dispute in question.

6. We now proceed to examine the correctness of the second submission of Mr. Misra. Section 16 (3) (a) of the Act prescribes for the election of the Chairman, and it reads.

'The members of all the Grama Pan-chayats within the jurisdiction of the Samiti shall, in the prescribed manner, elect the Chairman of the Samiti from among persons who are elected as or are eligible to be elected as members of any such Gram Panchayat;'

Admittedly, the petitioner was not an elected member of a Grama Panchayat within the prescribed area, but besought election as Chairman on the basis that he was eligible to be so elected.

Eligibility to be elected as a member of the Grama Panchayat is provided for under the Orissa Grama Panchayat Act (Act 1 of 1965). Section 25 makes provision for disqualifications for membership of the Grama Panchayat, and subsection (1) (1) thereof, as amended in 1967, provides,

'25(1). A person shall be disqualified for being elected or nominated as a Sar-panch or any other member of the Grama Panchayat. constituted under this Act. if he--

x x x x x(1) has failed to pay any arrears of any kind accrued due by him, otherwise than as an agent, trustee, or an executor, to the Grama Sasan or being a member of a Co-operative Society to such society, before filing of the nomination paper in accordance with the provisions of this 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;'

In the present case, the petitioner is said to have incurred the disqualification under Section 25 (1) (I) as referred to above on account of the fact that there was an enquiry along with audit under Section 67 of the Orissa Co-operative Societies Act (Act 2 of 1963) into the affairs of the Cooperative Stores. It is convenient to extract here the provisions of the said section,--

'67 (1). If fn the course of an audit, Inquiry and inspection or the winding up of a society, it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules or the bye-laws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to such society, the Registrar may, of his own motion or on the application of the Committee, liquidator or any creditor, hold an inquiry himself or direct any person authorised by him, by an order in writing in this behalf, to inquire into the conduct of such person :

xx xx xx (2) Where an enquiry is held underSub-section (1), the Registrar may, aftergiving the person concerned an opportunity of being heard, make an orderrequiring him to repay or restore themoney or property or any part thereof,with interest at such rate, or to pay contribution and costs or compensation tosuch extent, as the Registrar may consider just and equitable and all suchorders shall have effect without prejudice to any other action that may be lawfully taken against him.'

The petitioner happened to be the cashier of the Khaira Co-operative Stores, and the auditor has, as is alleged, found that the petitioner is liable to disgorge a sum of Rs. 910-02 to the Society. -No action has yet been taken under Sub-section (2) of Section 67. Until liability raised in an audit report has been subjected to a surcharge proceeding and an order under Sub-section (2) is passed, there is no determination of the dues which can be said to be payable by the petitioner to the Society. If action had been taken under Section 67 (2) of the Co-operative Societies Act, there would have been no need for the Board of Directors of the Stores to raise a dispute before the Assistant Registrar, The materials on record go to show that a dispute had been raised for realisation of the amount, but there does not seem to have been any determination and no award seems to have been passed creating a liability against the petitioner.

7. The relevant disqualification under the Grama Panchayat Act would arise if the following conditions are satisfied :

(a) Arrears to a Co-operative Society of which the person against whom disqualification is alleged was a member;

(b) He has failed to pay the arrears of any kind which have accrued due by him to such Society before filing of the nomination paper;

(c) A bill or notice In respect of such arrears has been duly served on him, and

(d) The time, if any, specified therein has expired and yet he continues to be in arrears.

It is well settled in election Law that the plea of disqualification has to be esta-blished by the election petitioner against : his rival. The entire burden to establish such disqualification would be on the petitioner who seeks to challenge the election on the ground that a disqualification attached to the elected candidate and evidence required to establish an existence of such disqualification must be conclusive. In AIR 1954 SC 210 (211), Jagan Nath v. Jaswant Singh, His Lordship the Chief Justice speaking for the Court said,--

'It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.'

8. We now proceed to examine the materials on record. The nature of the relevant evidence led in this case, as would appear from the decision of the Election Commissioner, is mostly oral except that there are two resolutions (Exts. 2 and 3) of the Khaira Co-operative Stores, and a copy of the plaint in Dispute Case No. 334 of 1966-67 (Ext. 1). The said three documents do not go to show that the liability of the petitioner had been adjudged and the dues raised against him have 'accrued'. All that is available from the documents is that a demand had been raised by the Cooperative Stores and as the dues had not been paid as per the demand, a dispute has merely been raised before the Assistant Registrar of Co-operative Societies, Batasore. The oral evidence led in the case is from persons who have no personal knowledge about the matter, and each of the persons who claims to support the election petitioner on this score has clearly stated that he has no direct knowledge about the matter. In the circumstances, the oral evidence of P. Ws. 2 and 5 does not go to establish the contention of the election petitioner.

9. 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 have 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. (See AIR 1966 All 370 at. p. 374 Town Area Committee. Sirsaganj v. N. L. Churaman). 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 of dues and the Society has the right in praesenti 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 sura of money is payable by the petitioner when he refutes his liability to pay the same cannot give rise to a position when it can be said that a certain amount has 'accrued due' to the Stores.

10. On the aforesaid analysis of the provisions, it is difficult to accept the submission of Mr. Roy that merely because the Co-operative Stores on the basis of the audit report had raised a demand it has to be held that the requirements of Clause (1) of Section 25 (1) have been satisfied and that it has to be held that the petitioner being a member of the Co-operative Stores had failed to pay the arrears due by him to the Stores before filing of the nomination paper. It is to be noted that neither the alleged audit report nor the notice of demand has been proved in this case. The Election Commissioner has said,

'It is true that the audit reports and the copy of the demand notice are not forthcoming in this case.'

In the absence of these very relevant documents, it is difficult to accept the contention that the disqualification has been established. Each of the requirements as indicated above has to be proved in order to give rise to the disqualification and on the materials on record we must conclude that the election petitioner has failed to satisfy the requirements of Clause (1) of Section 25 (1) in order to hold that the petitioner was disqualified under the aforesaid provision at the relevant time.

11. Mr. Roy contended that we were not exercising the powers of an appellate court in the matter, and as such the evidence was not available to be re-examined and re-assessed in order to differ from the Election Commissioner's conclusions. He further submitted that a remedv by way of review was available under the statute and it was open to the petitioner to have approached the Election Commissioner to review his decision. He further brought to our notice the provisions of the Act by which finality is attached to the decision of the Election Commissioner.

We have examined these aspects of Mr, Roy's submissions and we are not in a position to accept any of them. The provision of finality under the Act can be no bar to exercise of jurisdiction by this Court under Article 227 q the Constitution. The remedy of review in the Act can also not be raised as a bar to exercise of our jurisdiction in a writ of cer-tiorari, if, on examination of the materials, we find that an error apparent on the face of the record of the court below is manifest. In a recent decision of the Supreme Court reported in AIR 1969 SC 556, Baburam v. Zilla Parishad, it has been indicated,--

'In the next place It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute.'

In the instant case there is no right of appeal under the Act and what is provided is only the remedy of a review. We find that the Election Commissioner was not alive to the requirements of the statute to give rise to the impugned disqualification and upon a wrong construction of the statutory provisions failed to apply the law properly to the facts of the case. The mistake committed bv the Election Commissioner has led him to come to an erroneous conclusion in the dispute and the error is manifest upon a mere reading of the judgment We are satisfied that it is a fit case where we should exercise our jurisdiction under Article 227 of the Constitution.

12. The conclusion of the Flection Commissioner that the petitioner incurred the disqualification under Section 25 (1) (1) of the Ori.ssa Grama Panchayat Act, in the circumstances of this case, cannot be held to have been established.

13. In view of our finding that the Election Commissioner had iurisdiction to entertain the dispute, the proceeding before him was maintainable; but opposite party No. 1 was not entitled to succeed in the said election petition on account of the fact that the disqualification of the petitioner on the ground contained in Section 25 (1) (1) of the Orissa Grama Panchayat Act has not been established. The Election Commissioner did not act in accordance with law when he set aside the election of the petitioner.

14. We, therefore, allow the writ application, direct the issue of a writ of certiorari quashing the order of the Election Commissioner in Election Misc Case No. 1 of 1968 and we further direct that the election petition filed before him be dismissed. We, however, make no order as to costs of this case.

G.K. Misra, C.J.

15. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //