KARTIK CHANDRA Vs. JADUMANI BEHERA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution, for a direction in the nature of 'Quo Warranto', and for other ancillary directions, raising the question as to whether the opposite party No. 1, one Jadumani Behera, validly continues to hold the office of the Municipal Councillor of the Cuttack Municipality. The petitioner is a Municipal Councillor at Cuttack Ward III. The present Municipal Council of the Cuttack Municipality was constituted under the Orissa Municipal Act of 1950, which was brought into force on the 16th of April, 1951. The first general elections under the Act took place on 20th of April, 1951. The opposite party No. 1 was one of the candidates for Ward No. 1 of the Municipality. For the said Ward a seat for a member of the scheduled castes was also reserved under Section 11 read with Section 12 (2) (b) of e Act. Ward No. 1, therefore, for which opposite party No. 1 stood at the general elections was a two-member-ward of which one was reserved for a member of the scheduled castes. For the said Ward, there were three candidates, viz., (1) Naba Sethi, (2) Jadumani Sahu and (3) Jadumani Behera, of these, the 1st and the 2nd were members of the scheduled caste and the third was a non-scheduled-caste member. The polling took place on 20th of April, 1951, and the District Magistrate of Cuttack, who was the election officer found that the three candidates secured votes as follows : Naba Sethi -- 664, Jadumani Behera (opp. Party No. 1) -- 592, and Jadumani Sahu -- 505. The District Magistrate declared Naba Sethi and Jadumani Sahu to have been elected in spite of the fact that opposite party No. 1, Jadumani Behera polled larger number of votes than Jadumani Sahu. Thereupon, Jadumani Behera, applied to set aside the declaration of election of Jadumani Sahu and for a declaration that he himself was duly elected to the District Judge of Cuttack, as the Election Tribunal under Section 29 of the Orissa Municipal Act. The Tribunal rejected his application and thereupon the opposite party No. 1, the said Jadumani Behera, came to this Court for a writ under articles 228 and 227 of the Constitution, which was heard as M.J.C. 98 of 1951, by this Bench. We held that the declaration of Jadumani Sahu as duly elected, made by the Election Officer, and the dismissal of the application calling it in question, by the District Judge, Cuttack, as the Election Tribunal, were both based on a fundamental misconception of the relevant rules relating to reservation of seats for the election of members of the scheduled castes. We accordingly set aside the decision of the District Judge as the Election Tribunal and also set aside the declaration by the Election Officer, of Jadumani Sahu as validly elected to Ward No. I, and we declared opposite party No. 1 to have been validly elected for the non-reserved seat for Ward No, 1 of the Municipality. Our judgment in that case has been reported in 'JADUMANI BEHERA v. JADUMANI SAHU', ILR (1951) Cut 603. The present application arises out of certain events which have happened since then. Our judgment declaring opposite party No. 1 to have been duly elected was delivered on 3.12.51. The District Magistrate seems to have thought it necessary that there should be a further notification by him as the Election Officer and he issued on 4.12.51, the following notification : <FRM>JUDGEMENT_6_TLORI0_1952Html1.htm</FRM>

(2.) On 18.12.51, the said Jadumani Behera sent a letter of resignation to the Chairman, Cuttack Municipality, and another letter on the same day and in identical terms to the District Magistrate, which is as follows : <FRM>JUDGEMENT_6_TLORI0_1952Html2.htm</FRM> The District Magistrate appears to have taken no action in this matter for the holding of re-election as requested therein. He explains in his affidavit to this Court that he was awfully busy with the general elections to the State Assembly and to the Parliament and could not therefore take any action. It does not appear from the record whether or not any copy of this letter dated 26-12-51 addressed by the Chairman to the District Magistrate intimating acceptance of the resignation by the Municipal Council was communicated to opposite party No. 4, the Deputy Secretary to the Govt. of Orissa, L.S.G. Department. It would appear, however, that meanwhile, on 27th December 1951, Government Notification No. 7348-L.S.G., was issued, apparently in presumed further compliance with the order of this Court in M.J.C. 98 of 1951, dated 3rd December, 1951. declaring Jadumani Behera to be elected as councillor of the Cuttack Municipality, and the same was published in the Orissa Gazette dated 11.1.52. The affidavit of the Deputy Secretary to the Government, L.S.G. Department, filed in this Court states that on receipt of the letter No. 1551 dated 18.12.51 from the District Magistrate (presumably the letter referred to is the one forwarding a copy of the lecter of resignation of opposite party No. 1, Jadumani Behera), he consulted the Law Department, and as a result of that consultation, he wrote a letter to the District Magistrate on 4-2-52 stating that the resignation tendered by Jadumani Behera on 18th December, 1951, before the Government Notification declaring him elected as a councillor was issued, was invalid. He therein pointed out to the District Magistrate that a fresh resignation letter should be obtained and be accepted once again by the Municipal Council. That letter is Annexure E, and is in the following terms : <FRM>JUDGEMENT_6_TLORI0_1952Html3.htm</FRM>

(3.) A copy of this letter was forwarded by the District Magistrate to the Chairman who in his turn, forwarded it to opposite party No. 1, Jadumani Behera, with a request to submit a fresh resignation letter as early as possible. Admittedly opposite party No. 1, Jadumani Behera has not tendered any fresh resignation. He has appeared before us on notice through his advocate, Sri G. C. Das, and has not offered to resign again even now.