The electoral roll for the Assembly Constituency as it stands on the appointed date for the purpose of the Gram Panchayat elections is to be taken into consideration.

R. N. MISRA, J.

( 1 ) THIS is an application for a writ of certiorari directed against the appellate order of the District Judge of Puri made under Section 38 (4) of the Orissa Grama panchayat Act. 1964 (1 of 1965) ( (hereinafter referred to as tine Act ). In June 1970 election for the office of the Sarpanch of the Dhanakera Grama Panchayat in the district of Puri was held. The petitioner and the opposite party No. 1 contested the said election. The petitioner having secured the highest number of votes was declared elected as Sarpanch on 29-6-1970 by the Election Officer. The opposite party No. 1 filed an election petition under Section 30 of the Act challenging the petitioner's election on the ground that the election was void as the petitioner's name was not on the elector? roll of the Dhanakera Grama Panchayat on the date appointed for receiving objections for correcting the electoral list of the Grama panchayat and that the petitioner was a permanent resident of Puri town and he could not have contested the election under the Act. The petitioner took the stand before the Election Commissioner that the petitioner had properties within the panchayat and was entitled to be a voter from the said area under the representation of the People Act. 1950 in respect of the Satyabadi Assembly constituency within which the village was located. He applied to the Electoral registration Officer under the Representation of the People Act and got his name entered in the electoral roll of the Satyabadi Assembly Constituency on 19-5-1970, in the electoral roll of the Dhanakera Grama Panchayat his name was entered on 22-5-1970. Since the electroal roll for the Assembly Constituency is the roll for election to the Grama Panchayat the petitioner was entitled to contest the election. The Election Commissioner did not accept the petitioner's contention. On the other hand he came to the conclusion that the petitioner was not qualified to contest the election. Accordingly the said election was set aside. The appellate authority affirmed the order of the Election Commissioner.

( 2 ) THERE is no dispute regarding the following facts along with the dates indicated therein. 30-4-1970 Objection was invited under Rule 8 of the Orissa grama Panchayats Election Rules, 1965 (hereinafter referred to as the Rules ). 7-5-1970 Last date for receipt of objection. 9-5-1970 Petitioner applied for inclusion of his names in the assembly Electoral Roll. 22-5-1970 Correction in the Assembly Electoral Roll was ordered. The name of the petitioner was entered in the Grama panchayat. 23-5-1970 Nomination.

( 3 ) WHEN this writ application came up for hearing before a Division Bench Mr. Das for the petitioner relied upon a decision of this Court in (1971) 1 Cut WR 433 = (AIR 1972 Orissa 59) M. M. Senapati v. Election Officer cum S. D. O. , Sadar, to contend that if the petitioner's name was in the electoral roll in the Assembly constituency so far as it related to that Grama the petitioner was entitled to contest the election for Sarpanch. On behalf of the opposite parties reliance was placed on a later decision of this Court in (1972) 38 Cut LT 191 (Ram Chandra Deo v. Election Officer, Nayagarh ). The Division Bench found the decisions to be contradictory to each other and therefore, directed the writ application to be placed before a larger Bench for hearing and also to decide as to which of the two decisions was in accordance with law.

( 4 ) IT is necessary that the legal position must be first ascertained. This requires reference to the Act and the Rules. The relevant provisions of the Act are Sections 4 (1), 9, 10 (1) and 27. For convenience we extract them:-" 4 (1) For every Grama there shall be a Grama Sasan which shall be composed of all persons registered by virtue of the Representation of the people Act. 43 of 1950 in so much of the electoral roll for any Assembly constituency for the time being in force as relates to the Grarna and the said portion of the roll