IMPORTANT POINT
Procedural laws relating to Panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity.

JUDGMENT

R.C. Lahoti, CJI.-Leave granted.

2. Election to the office of Sarpanch, Pondosguda Gram Panchayat, Orissa was held in the month of February 2002 under the provisions of The Orissa Grama Panchayats Act 1964 (hereinafter the Act , for short). There were eight candidates out of whom six withdrew from the contest leaving only the petitioner and the respondent in the election fray. The polling took place on 21.2.2002. On 28.2.2002, the respondent was declared elected.

3. The respondent s election was put in issue by the appellant by filing an election petition under Sections 30/31 of the Act in the Court of Munsif having jurisdiction to try the petition. The relief clause in the petition is relevant as the controversy centres around it and hence is reproduced hereunder:-

"The Petitioner, therefore, prays the Hon ble Court to be pleased to declare that the election of opposite party is invalid and declare the Petitioner as the only duly nominated candidate for the office of Sarpanch Pondosoguda in 2002 Gram Panchayat Election, in alternate declare a casual vacancy to have been created in the office of Sarpanch Pondosoguda GP and direct the Collector Koraput/such concerned authority to take proceeding to fill up the vacancy, award, the cost of the case and give such further relief/relief which the court deem fit and proper under the law in the interest of justice."

(emphasis supplied)

4. The learned Munsif found that the respondent was disqualified from contesting the election as he had more than two children on the date of his nomination, a disqualification within the meaning of clause (v) of sub-section (1) of Section 25 of the Act. In view of that finding, the learned Munsif allowed the election petition, set aside the respondent s election and further declared that "Rupadhar Pujari being the single candidate has been duly elected to the post of Sarpanch of Pondosguda Gram Panchayat".

5. The respondent preferred the writ petition in the High Court. The High Court has upheld the finding of the learned Munsif that the respondent was disqualified from being elected. However, the High Court has further held that in the relief clause of the election petition filed by the appellant he had not sought for any relief to declare him elected. Allowing the writ petition, the High Court, while upholding the setting aside of the election of the respondent, substituted the consequential direction in place of the one given by the learned Munsif and directed that it would be open to the authorities to proceed in accordance with law, i.e. by holding a re-election. Aggrieved by the judgment of the High Court, the appellant has filed this appeal by special leave.

6. Sections 34, 40 and sub-sections (1) and (2) of Section 38 of the Act, which are relevant for our purpose, provide as under:-

"34. Relief that may be claimed by the petitioner-A petitioner, may, in addition to claiming a declaration that the election of all or any of the returned candidates is void claim a further declaration that he himself or any other candidate has been duly elected.

40. Grounds for which a candidate other than the returned candidate may be declared to have been elected-If any person who has lodged a petition, has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Munsif is of opinion

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate by a corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes;

38. Decision of Munsif-(1) If the Munsif after making such enquiry, as he deems necessary, finds in respect of any person, whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and may award cost