The disqualification under Section 25 (1) (b) of the Orissa Grama Panchayat Act, 1964 arises only when there has been an ascertainment of dues and the Society has the right in praesenti to recover the said amount and in spite of quantification of the liability and consequent notice of demand to pay, the concerned person has defaulted.

R. N. MISRA, J.

( 1 ) THIS is an application under Articles 226 and 227 of the Constitution asking for the issue of a writ of certiorari to quash the order passed by the Munsif of Balasore exercising the powers of an Election Commissioner under the provisions of the orissa Pan-chayat Samiti and Zilla Parishads Act (No. 7 of 1960) (hereinafter referred to as the Act.)

( 2 ) THE petitioner and opposite parties 1, 2 and 3 were candidates in the contest for the office of the Chairman of the Khaira Panchayat Samiti in the district of balasore. The election was held on 7-1-68. and the petitioner was declared elected as the Chairman. Opposite party No. 1 thereupon made an election petition before the Munsif of Balasore who is the Commissioner duly appointed under the aforesaid Act. and the said application came to be registered as Election Misc. Case No. 1 of 1968. The election was sought to be challenged on various grounds, and one of them material for our present purpose was that the petitioner had incurred the disqualification prescribed under Section 25 (1) (b) of the Orissa grama Panchayat Act, 1964, read together with Section 16 (3) (a) of the Act. The facts constituting the said disqualification were as follows :

( 3 ) THE petitioner was a member and. also the cashier of the Khaira Co-operative stores and had misappropriated funds. In an audit made under Section 67 (1) of the Orissa Co-operative Societies Act, 1962 (Act 2 of 1963) a sum of Rs. 910-02 was found due from the petitioner. The Society raised a demand against the petitioner, passed resolutions and ultimately lodged a claim in Dispute Case No. 334 of 1966-67 before the Assistant Registrar of Co-operative Societies, Balasore. The petitioner did not admit his liability for the aforesaid amount and contended that he had not incurred the disqualification in question. The Election Commissioner raised several issues for determination in the case. The material issue touching this aspect of the matter was issue No. 2. The Election commissioner, by his decision dated 31-3-69, came to hold that the petitioner was disqualified on the aforesaid score and rejected all the other grounds for his disqualification as raised by the opposite party No. 1. No other statutory remedy is provided under the Act against the decision of the Election Commissioner, and the petitioner, therefore, came up before this Court to quash the order of the Election commissioner.

( 4 ) MR. Srinivas Misra appearing for the petitoner raised two contentions (1) The election Commissioner has no jurisdiction to entertain a dispute questioning the validity of the election of the Chairman of a Panchayat Samiti and (2) The finding that the petitioner had incurred the disqualification under Section 25 (1) (b) of the grama Panchayat Act read with Section 16 (3) (a) of the Act was based upon a wrong construction of the law. and, as such, the conclusion of the Election commissioner was vitiated and there is an error apparent on the face of the record justifying interference of this Court.

( 5 ) CHAPTER VI-A of the Act makes provision for election disputes and Section 44-A of the Act provides,

"no election of a person as a member of Samiti or a Parishad held under this Act shall be called in question except by an election petition presented in accordance with the provisions of this Chapter. " Mr. Misra submits that election disputes are purely statutory proceedings and are not actions at law or suits in equity, and the election Courts possess no common law power. Therefore, once jurisdiction is not conferred under the special statute, the Election Commissioner is not entitled to entertain an election dispute. On a plain reading of Section 44-A, he contends, a dispute relating to the election of a Chairman is not comprehended by the said provision. This contention seems to be absolutely without basis. Section 16 (1) of the Act provides for the constitution of the Samiti and it states who the members of a Samiti would b