Back
1998 Supreme(Ori) 106
High Court Of Orissa
R. K. PATRA, PRADIPTA RAY
GOUR CHANDRA PRADHAN - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 18371 Of 1997
Decided On : 05/05/1998
A.K.Nayak, A.MOHANTY, B.B.RATHOD, B.K.DAS, B.MISHRA, B.N.RATH, B.SENAPATI, C.SAMANTRAY, G.S.Das, H.S.SATAPATHY, J.N.RATH, JAGANNATH PATNAIK, L.MISHRA, M.K.PANDA, MANOJ MISHRA, P.K.MOHANTY, P.K.Panda, PATITAPABAN PANDA, S.D.Das, S.K.JETHY, S.Patnaik
Failure to take the oath of allegiance to the Constitution of India at any of the first three meetings of the Parishad, as required by sub-section (2) of Section 36 of the Orissa Zilla Parishad Act, 1991, results in the cessation of office as a member of the Parishad.
Headnote:
OATH OF ALLEGIANCE - FAILURE TO TAKE OATH - CESSATION OF OFFICE - VACANT SEATS - FILLING UP OF VACANT SEATS - MANDATORY PROVISION - INTERPRETATION OF STATUTE - OPINION OF STATE ELECTION COMMISSION - UNWARRANTED AND UNJUSTIFIED.
Fact of the Case:
Petitioner, an elected member of Ganjam Zilla Parishad, filed an application under Article 226 of the Constitution of India seeking a declaration that opposite parties 5 to 10 had ceased to hold office as members of the Parishad and a direction to the opposite parties 2 and 3 to fill up those vacant seats. The petitioner's case was that the opposite parties 5 to 10 did not take the oath of allegiance to the Constitution of India at any of the first three meetings of the Parishad, as required by sub-section (2) of Section 36 of the Orissa Zilla Parishad Act, 1991 (the Act), and therefore had ceased to be members.
Finding of the Court:
The Court held that the first, second, and third meetings of the Parishad took place on 15-2-1997, 25-2-1997, and 1-5-1997, respectively, and that the opposite parties 5 to 10 did not take their oath in any of those meetings. The Court further held that the failure of the opposite parties 5 to 10 to take the oath or affirmation in any of the first three meetings of the Parishad resulted in their ceasing to hold office as members of the Parishad and that their seats had fallen vacant.
Issues: 1. Whether the opposite parties 5 to 10 had ceased to hold office as members of the Parishad due to their failure to take the oath of allegiance to the Constitution of India at any of the first three meetings of the Parishad? 2. Whether the opposite parties 2 and 3 were required to fill up the vacant seats caused by the cessation of the opposite parties 5 to 10 as members of the Parishad?
Ratio Decidendi: 1. The Court interpreted sub-section (2) of Section 36 of the Act and held that it was mandatory and did not admit of any exception. The Court held that any member of the Parishad who failed to take the oath or affirmation in any one of the first three meetings of the Parishad would cease to hold office as such. 2. The Court held that the opinion of the State Election Commission, which stated that the opposite parties 5 to 10 could be administered the oath of office even though they had failed to take the oath in any of the first three meetings, was untenable in law and liable to be ignored.
Final Decision: The Court allowed the petition and directed the opposite parties 2 and 3 to take necessary steps to fill up the vacant seats caused by the cessation of the opposite parties 5 to 10 as members of the Parishad.
R. K. PATRA, J.
( 1 ) THE petitioner who is one of the elected members of the Ganjam Zilla Parishad has filed this application under Article 226 of the Constitution of India praying for declaration that opposite parties 5 to 10 have ceased to hold office as members of the Zilla Parishad. He has also prayed for a direction to the opposite parties 2 and 3 to fill up those vacant seats held by those opposite parties.
( 2 ) THE case of the petitioner is that results of election to the Ganjam Zilla Parishad (hereinafter referred to as 'the Parishad') were duly published on 29-1-1997 in the Official Gazette and its elected members were deemed to have held office with effect from that date. The Additional District Magistrate, Ganjam in letter No. 1084/gp dated 4-2-1997 (Annexure-1) noticed all the elected members to attend the D. R. D. A. Conference Hall, Chatrapur on 15-2-1997 at 10. 30 A. M. to take oath of allegiance. Pursuant to the said notice, 36 elected members out of 69 took their oath and the first meeting of the Parishad was held on that day itself and one Smt. Renubala Pradhan was elected as the President of the Parishad. The second meeting of the Parishad was held on 25-2-1997 at 11. 00 A. M. On that day (25-2-1997) 26 other elected members took their oath. In the said meeting, one Smt. Shanti Devi was elected as the Vice-President. The third meeting of the Parishad was held on 1-5-1997 and one more elected member took oath on that day. The opposite parties 5 to 10 who were present in all the aforesaid three meetings did not take oath or affirmation of allegiance to the Constitution of India. As a consequence, they have ceased to be members of the Parishad on their failure to take oath or affirmation at any one of the first three meetings of the Parishad as envisaged in sub-section (2) of Section 36 of the Orissa Zilla Parishad Act, 1991 (hereinafter referred to as 'the Act' ). The fourth meeting of the Parishad was held on 30-7-1997. The opposite parties 5 to 10 although have ceased to be the members of the Parishad, the Collector, Ganjam who is the Chief Executive Officer of the Parishad illegally wanted to administer oath. It was pointed out by some members that opposite parties 5 to 10 have ceased to be the members of the Parishad and they should not have been allowed to attend the meeting. On account of such objection, the attempt of the Collector to administer oath to them was foiled. In the meeting, it was decided that the dispute should be referred to the State Government for its decision but till now, no decision has been communicated from the Government level. The State Election Commission, Orissa, however, in his letter dated 19-8-1997 (Annexure-3) communicated its views stating, inter alia, that as per the executive instructions, the respective Collectors of the districts were to complete administering oath of office to the elected members of the Zilla Parishad and the concerned Collector having not done so, his lapse "should not negate the people's mandate in favour of the elected members" particularly when the Collector allowed them to attend the meetings and the six elected members could be administered oath of office. The State Election Commission further opined, as it appears from the aforesaid letter (Annexure-3) that if any one thinks that those six members have ceased to hold office, he can file an election dispute. As the opinion of the State Election Commission was unwarranted and legally untenable the petitioner made representation to the principal Secretary to the Government in the Panchayati Raj (G. P.) Department on 3-10-1997 (Annexure-4) requesting him to take necessary steps to fill up the vacancies caused on account of cessation of opposite parties 5 to 10 to be members of the Parishad. The Collector-cum-Chief Executive Officer in letter dated 1-10-1997 (Annexure-5) however wrote to the Government that since no clarification has yet been received, he would permit opposite parties 5 to 10 to
