SRI JAGAMOHAN NAIK Vs. STATE OF ORISSA AND ORS.
LAWS(ORI)-1973-6-11
HIGH COURT OF ORISSA
Decided on June 22,1973

Sri Jagamohan Naik Appellant
VERSUS
State of Orissa and Ors. Respondents

JUDGEMENT

R.N.Misra, J. - (1.) THE Petitioner was elected as Chairman of the Nawapara Panchayat Samiti held on 12 -1 -1971. An application was filed by the opposite party No. 2 one of the defeated contestants -before the Election Commissioner challenging the said election on the ground that the Petitioner not being an ordinary resident within the Nawapara Block and he having interest in a subsisting contract with the Panchayat Samiti was disqualified from being elected as Chairman of the Panchayat Samiti. The election of the Petitioner was, therefore, asked to be declared as void. The Petitioner contested the proceeding on the footing that though he was a sitting Councilor of the Notified Area Council of Khariar Road, he was an ordinary resident within the Nawapara Block and was, therefore, qualified to be elected as the Chairman of the Panchayat Samiti.
(2.) THE Election Commissioner found that the Petitioner was a sitting councilor of the Notified Area Council of Khariar Road. He was further not in a position to hold that the name of the opposite party (Petitioner) found mention in the electoral roll of village Mota Nawapara situated within the Nawapara block. He relied upon the provisions of Section 25 -A of the Orissa Panchayat Samiti Act (hereinafter referred to as the Act) and ultimately held that the Petitioner 's election was void. He accordingly set aside his election and declared that a casual vacancy had been created and called upon the Collector of Kalahandi to fill up the vacancy in accordance with law. There was a petition for review before the Election Commissioner which was rejected by a subsequent order dated 22 -10 -1971. This decision of the Election Commissioner is impugned in the present proceeding for a writ of certiorari. The election of the Petitioner was sought to be avoided on two grounds, namely, (i) the Petitioner was disqualified from being elected as Chairman not being an ordinary resident within the Block; and (ii) the Petitioner had interest in a subsisting contract with the Panchayat Samiti. The disqualifications are provided under Section 45(1) of the Act and against the Petitioner the disqualifications provided for in Clauses (b) and (c) were raised. The Commissioner did not accept the allegation that the Petitioner had any interest in any subsisting contract with the Panchayat Samiti. That finding is no more assailed. The only question for consideration, therefore, is as to whether the Election Commissioner was right in his finding that the Petitioner was disqualified under Section 45(1)(b) of the Act.
(3.) SECTION 45(1)(b) is to the following effect - A person shall not be eligible to stand for election under Sub -section (2) of Section 16 if he (b) is not ordinarily residing within the Block. That phrase has been defined in Section 3(d)(2) of the Act as follows: Ordinary resident in any area with all its grammatical variations and cognate expressions shall have reference to a person whose name finds place in the electoral roll for the time being in force prepared under the Representation of the Peoples Act, 1950, in so far as the roll relates to such area. The Election Commissioner has stated in the impugned order - ...The opposite party (D.W. 1) (Petitioner) in his oral testimony deposes that he is residing in village Mota Nawapara within the Nawapara Block since 1965 and his name finds place in the electoral roll of village Mota Nawapara in serial No. 217 against house No. 80. He owns and possesses land and house in village Mota Nawapara and looks after his cultivation work. But the electoral roll of village Mota Nawapara is not produced before the Court by the opposite party in support of his oral testimony. In the instant position of the evidence the onus entirely lies on the opposite party to produce the electoral roll of village Mota Nawapara as he (Opposite. Party) specifically pleaded this fact in para 6(b) of his written statement. In the absence of production of such documents, that is, electoral roll of village Mota Nawapara, I am unable to rely on the pleadings of the opposite party in this regard. I, therefore, do not find myself in a position to hold that the name of the opposite party finds mention in the electoral roll of village Mota Nawapara situated within the Nawapara Block over which the provisions of Orissa Panchayat Samiti Act, 1959, is made applicable. As it appears, the Election Officer while dealing with the objection raised against the nomination of the Petitioner had made enquiries and was satisfied that the Petitioner 's name appears in the electoral roll of Mota Nawapara. The order of the Election Officer was exhibited in the dispute before the Election Commissioner as Ext. 8. The statement of the Petitioner before the Election Commissioner as referred to above went unchallenged. Apart from these, the certified copy of the entry in the electoral roll had also been produced before us. Ordinarily we would not have accepted fresh evidence at this stage but in view of the fact that there was documentary evidence before the Election Commissioner, we were prepared to refer to the electoral roll as corroborative material. Therefore, it must be found that the Petitioner 's name appears both in the electoral roll of village Mota Nawapara as also in the Khariar Road N.A.C. For the purposes of the Panchayat Samiti Act, the Petitioner must be found to be an ordinary resident within the Block of Nawapara as he complies with the definition given in Section 3(d -2) of the Act.;


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