R.N. Misra, J.
1. This is an application for a writ of certiorari to auash the election of the opposite party No. 1 as the Chairman of the Hatadihi Panchayat Samiti.
2. According to the petitioner the opP. party No. 1 was elected as Chairman of the said Samiti in 1961 and continued to hold that office upto 1967. That constituted the first term of Chairmanship of opposite party No. 1. In 1968. election took place for the said office. The opposite party No. 1, was again elected and was to continue in office upto 1971. That was his second term. On 15th of December, 1970, he resigned. On 10th of January. 1971, election took place and opposite party No. 1 was again elected. This was his third term. It is conceded that these terms are consecutive.
3. Under Section 16 (3) (a) of the Orissa Panchayat Samiti Act of 1959 (Act 7 of 1960) no person is eligible to be the Chairman of a Samiti for more than two consecutive terms. In the case of Madan Mohan Pani v. State of Orissa. AIR 1971 Orissa 283, this Court dealt with the pro-visions of Section 16 (3) (a) of the Act and held that in similar circumstances as these, the terms would be held to be consecutive. There is no dispute among counsel before us appearing for all the parties that in terms of Section 16 (3) (a) of the Panchavat Samiti Act and as interpreted by the said decision the opposite party No. 1 is not eligible to hold the office of Chairman for the present term. In view of this situation, ordinarily the petitioner should have succeeded and the election of the opposite party No. 1 should have been quashed. On behalf of the opposite parties, however, it has been contended that in the facts of the case no relief can be granted.
4. On 21-1-1971, the petitioner had filed a writ application in this Court (O. J. C. No. 91 of 1971) challenging the election of opposite party No. 1. In the said application he raised the opposite party No. 1's ineligibility as a ground of attack against his election to the office of the Chairman. During the pendency of that application, a Bench of this Court decided the case reported in AIR 1971 Orissa 283 and iudgment thereof was delivered on 9-2-1971. In some of the local law reports, the judgment was published on 26-2-1971. The petitioner, notwithstanding the elucidation of the legal position by this Court, did not raise the contention that the election of the opposite party No. 1 was contrary to the provisions of Section 16 (3) (a) of the Act. On 21-6-1971, his writ application was rejected on merits. The present writ petition has been filed on 30th of June 1971.
This writ application has been argued as one for a writ of quo warranto and the opposite parties contended that the application is barred by res judicata; because on the earlier occasion when the petitioner came before this Court, the present contention was available to be raised and was not raised. It is next contended that the petitioner's conduct has to be examined and laches on his part, acquiescence, the delay in moving this Court in the matter, the fact that a statutory remedy was open to him to raise the present dispute are features which should be taken note of to refuse relief to the petitioner.
5. Their Lordships of the Supreme Court have on more than one occasion taken the view that principles of res judicata apply to writ proceedings. In the case of Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150, Gajendragadkar, C. J., delivering the judgment of the Constitution Bench stated:--
'There can be no doubt that the fundamental right guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Article 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Article 226 in support of a citizen's fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But, the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Article 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fairplay and justice.'
His Lordship proceeded to further state :--
'It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the game cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.'
The rule laid down in this case directly applies to the present facts and would stand as a bar against the maintainability of the writ petition. Mr. Das for the petitioner sought to distinguish the decision by referring to the earlier case of their Lordships of the Supreme Court in the case of Amalgamated Coalfields Ltd. v. Janpad Sabha Chhindwara. AIR 1964 SC 1013. We do not find any inconsistency. In fact the learned Chief Justice in the later decision (AIR 1965 SC 1150) has himself explained the distinctive features of the earlier decisions. The Coalfields case, (AIR 1964 SC 1013) arose out of Income-tax matters. On an earlier occasion, the assessee had come before the Supreme Court, but had not raised the contention which was advanced in the latter case. Plea of res judicata was not sustained against the assessee because on the earlier occasion the dispute was against a different assessment. It is a well-known concept in Taxation Law that there is ordinarily no res judicata because each of the units of assessment is independent. Res judicata is a recognised defence against quo warranto. Ferries in Extraordinary Legal Remedies has indicated--
'Res judicata to be available as a defence must of course to be pleaded. The general rule is that it is the very essence of judicial power, when a matter is one ascertained and determined, that it is forever conclusive when it arises again under the same circumstances and condition between the parties or their privies. This rule is generally applicable in quo warranto proceedings ............'
Some other decisions were indicated to us at the Bar in support of the plea of res judicata. We do not, however, consider it necessary to advert to them as according to us the position has been settled by the aforesaid decision of the Supreme Court.
6. A writ of quo warranto is not issued as a matter of right. It is a discretionary relief and the Court has always to ask itself whether under the circumstances of each case, the petitioner should be given the relief in the nature of auo warranto which he seeks. The conduct of the petitioner who comes as the relator before the Court, therefore, is subjected to scrutiny before relief is ordinarily granted. A Division Bench of the Naspur High Court in the case of Miss Avi J. Cama v. Banwarilal Aparwal AIR 1953 Nag 81. dealing with a auo warranto proceeding in an election dispute stated that before granting a writ of quo warranto it is necessary to see that the relator is a fit person to be entrusted with this writ. The Court will not listen to a candidate who has acquiesced in or perhaps concurred with the very act which he afterwards comes to complain of when it suits his purpose. It will not issue a writ of quo warranto at the instance of the candidate for an election who did not object to the nomination of another candidate for the same constituency at the proper time. In this case admittedly no objection was raised to the nomination of the opposite party No. 1 on the ground that he was ineligible for re-election for a third consecutive term. The election was permitted to be held in which the petitioner, the opposite party No. 1 and four others participated. Ultimately the opposite party No. 1 emerged as successful.
The petitioner, it is contended by the opposite parties, had indeed an alternate remedy under the statute. The election of the opposite party No. 1 could have been got vacated by the filing of an election petition. On that basis it is contended that where an alternate remedy lies, relief could not be granted by issue of a writ of quo warranto. We shall, therefore, advert to find out whether under the Act an election dispute was sustainable.
Under Section 44-L (1) (c), the Election Commissioner can declare the election of a returned candidate void if such person was disqualified for election under the provisions of the Act. Mr. Mohapatra for opposite party No. 1 contends that an election petition lay in this case and the petitioner could have obtained the relief by pursuing the remedy under Chapter VI-A of the Act. In O. J. C. No. 818 of 1971 disposed of on 19-9-1972 (Orissa) by us, we made some observations which may apparently run counter to the contention of Mr. Mohapatra. In that case we did not decide the point. Since it is now raised, we think it appropriate to deal with the question.
The proviso to Section 16 (3) (a) of the Act makes a person ineligible to be the Chairman of a Samiti for more than two consecutive terms. Ineligibility and disqualification seem to have been used to convey the same meaning in the statute. Section 45 (1) provides:
'A person shall not be eligible to stand for election under Sub-section (2) of Section 16 ............'
Several clauses have been provided indicating conditions of eligibility or ineligi-bility. The proviso appended to that subsection is to the following effect:--
'Provided that the disqualification under Clause (h) or (l) may be removed by Government in the prescribed manner.'
In Sub-section 2 (i), conditions of ineligibility have also been referred to as disqualifications. In the circumstances, we accept the contention of Mr. Mohapatra that the statute has not maintained any distinction between ineligibility and disqualification and in an election petition filed under Chapter VI-A of the Act, the ineligibility under the proviso to Section 16 (3) of the Act could be made the basis of challenge against the election and the Election Commissioner can declare the election of a returned candidate void on that ground. The petitioner had, therefore, a statutory alternate remedy which he has not availed,
Chagla C. J., in the case of Bhairulal Chunilal v. State of Bombay, AIR 1954 Bom 116 indicated that it was a well settled rule that where there were statutory provisions dealing with the conduct of an election, the right to quo warranto must be taken to be displaced. An election should only be challenged in the manner laid down by the statute. This therefore, is another around upon which the writ application can successfully be challenged. Several other grounds have been raised. But we do not consider it necessary to go into those as in our view the bar of (1) res judicata. (2) availability of alternate remedy under the statute and (3) delay in making of the petition are grounds which disentitle the petitioner to any relief in this application.
7. About 3 couple of weeks before we granted a writ of quo warranto in a similar case. There, however, was no bar of res iudicata. The delay had been sufficiently explained and we did not find any feature which disentitles the relator to relief. It is well settled that an usurper in a responsible public office should not be allowed to continue. But where on account of some bar in law, the relator is disentitled to relief, a writ of quo warranto cannot issued.
8. For the reasons indicated above we dismiss the writ application. Parties shall bear their own costs.
B.K. Ray, J.
9. I agree.