Skip to content


Sri Parameswar Das Vs. Sri Dhirendra Mallick and ors. - Court Judgment

LegalCrystal Citation
SubjectElection ;Constitution
CourtOrissa High Court
Decided On
Case NumberO. J. C. No. 1948 of 1984
Judge
Reported in1985(I)OLR59
ActsOrissa Panchayat Samiti Act, 1959 - Sections 44A, 44B, 44C, 44B(6), 44O and 44P; Code of Civil Procedure (CPC)
AppellantSri Parameswar Das
RespondentSri Dhirendra Mallick and ors.
Appellant AdvocateR. Mohanty, D. Nayak and Debasis Das
Respondent AdvocateS. Misra (1), S.K. Nayak(2), J.M. Mohanty, S. Misra and G.P. Mohapatra (for O.P. 1), Ashok Mohanty and Sashi Das (for O.P. 2) and ;Addl. Standing Counsel (for O.P. 4)
Excerpt:
.....for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 6. the election commissioner having been vested with power under a statute is not only to exercise the power as given in the statute but also in the manner provided therein and not otherwise section 44a having provided that no election can be questioned except by an election petition presented in accordance with the provisions of chapter vi-a and undersection 44-c, the persons who would be..........to 8.8.1984. on 6.8.1984 the petitioner who was also an elect filed an application to be added as party. opposite party no. 2 filed an objection to the application. opposite party no. 1, however, in his rejoinder supported the application of the petitioner. the election commissioner after hearing the parties refused the prayer of the petitioner to be added as a party.3. it is not disputed that there is no specific provision under the act providing an elect to be made an opposite party to an election petition. mr. r. mohanty, the learned counsel for the petitioner, submitted that in the absence of prohibition in the act the petitioner ought to have been added as a party under the provisions of civil procedure code which are applicable to a proceeding arising out of an election petition......
Judgment:

S.C. Mohapatra, J.

1. The Election Commissioner under the Orissa Panchayat Samiti Act, 1959 ( Orissa Act 7 of 1960) (hereinafter referred to as the 'Act') having refused the prayer to be added as a party to the election petition, the petitioner has approached this Court in this writ application to quash the order (Annex. 2) in exercise of the extraordinary jurisdiction by issuing a high prerogative writ under Articles 226 and 227 of the Constitution.

2. Opposite party Nos. 2 and 3 were candidates contesting the election to the office of Chairman of Rajkanika Panchayat Samiti Opp. party No. 2 was declared elected by notification, dated 22.2.1984. Opposite party No. 1 who was an elect eligible to vote at the election presented an election petition for declaring the election of opposite party No. 2 as void and for declaring opposite party No. 3 as elected. The said petition was registered as Misc. Case No-37 of 1984 (Election). The case was posted for hearing to 8.8.1984. On 6.8.1984 the petitioner who was also an elect filed an application to be added as party. Opposite party No. 2 filed an objection to the application. Opposite party No. 1, however, in his rejoinder supported the application of the petitioner. The Election Commissioner after hearing the parties refused the prayer of the petitioner to be added as a party.

3. It is not disputed that there is no specific provision under the Act providing an elect to be made an opposite party to an election petition. Mr. R. Mohanty, the learned counsel for the petitioner, submitted that in the absence of prohibition in the Act the petitioner ought to have been added as a party under the provisions of Civil Procedure Code which are applicable to a proceeding arising out of an election petition. Mr. S. Misra (1), the learned counsel for opposite party No. 1 on the other hand, submitted that all the provisions of Civil Procedure Code not being applicable, there is no scope for addition of the petitioner as an opposite party to the proceeding. Rival contentions of both the parties require careful consideration.

4. Chapter VI-A of the Act containing Sections 44-A to 44-Q provides for election disputes.Section 44A is a bar to call in question the election under the Act except by an election petition presented in acc dance with the provisions contained in that chapter. An election petition can be presented by a candidate an elect eligible to vote in the election as provided underSection 44-C(1). Sub-section (2) of Section 44-C provides that a person whose election is questioned and any other candidate sought to be declared as elected in place of the elected person are to be made opposite parties. Section 44-O provides that the election petition being permitted to be withdrawn on the prayer of a petitioner, any other person who could have filed an election petition, can apply to be substituted in place of the petitioner. Where an election petition abates on account of the death of the petitioner, any person who could have filed an election petition questioning the election can apply to be substituted in place of the deceased petitioner as provided in Section. 44-P. These are the specific provisions in the Act which provide for being parties to a proceeding initiated by an election petition.

5. Section 44B(2) provides that the Subordinate Judge exercising jurisdiction over the place where the office of the Panchayat Samiti is situated, is the Election Commissioner.Section 44-B (6) provides that the Election Commissioner exercises jurisdiction as a persona designata and not in his capacity as a Court. It is provided under Section 44-H that the Election Commissioner shall have powers of discovery and inspection, enforcing attendance of witnesses, compelling the production of documents, examining witnesses on oath, granting adjournments, receiving evidence taken on affidavit, issuing commissions for examination of witnesses and summoning and examining a witness suo motu if his evidence appears to be material which are vested in a Court under the C. P. C, trying a suit. Section 44-F (1) is to the effect that an election petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the C. P. C., to the trial of suits subject to the provisions of the Act, The power of addition of a party, which has been vested in a Civil Court under the C. P. G., has not been given to the Election Commissioner under the Act.

6. The Election Commissioner having been vested with power under a statute is not only to exercise the power as given in the statute but also in the manner provided therein and not otherwise Section 44A having provided that no election can be questioned except by an election petition presented in accordance with the provisions of Chapter VI-A and underSection 44-C, the persons who would be opposite parties having been clearly enumerated, the Election Commissioner has no discretion to add the petitioner as a party. There is no scope to add an elect as a party except when the election petition is withdrawn has abated underSection 44-O and 44-P. The rejection of the application of the petitioner by the Election Commissioner is justified in law.

7. In the result, there is no merit in this writ application and it is accordingly dismissed with costs. Hearing fee is assessed at Rs. 250/- (Two hundred fifty).

R.C. Patnaik, J.

8. I agree.


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