The central legal point established in the judgment is the interpretation of the provisions of the G.P. Act, specifically Section 40 and Section 32, to determine the validity of the election and the declaration of the petitioner as elected Sarpanch.

JUDGMENT :

R.N. Biswal, J. - Even though the case was listed to date for admission, on consent & request of Learned Counsel for both the sides, it was taken up for final disposal & the following order was passed.

2. The Petitioner, Smt. Sansari Samal (Opp. Party No. 2) & one Bilasini Parida contested for the office of Sarpanch of Nagiaposi Gram Panchayat. On 16.1.2007 during scrutiny of the nomination papers, Bilasini Parida raised objection before the Election Officer that Smt. Sansari Samal did not know reading & writing oriya & that she put her signature with much difficulty, still then her candidature was accepted & she got elected as Sarpanch of the aforesaid G.P. The Petitioner secured the 2nd highest votes. She filed Election Petition No. 37 of 2007 challenging the validity of the election of Opp. Party No. 2 before the Civil Judge (J.D.) Dhenkanal. After perusal of the evidence adduced by the parties & hearing their Counsel, Learned Civil Judge (J.D.) Dhenkanal vide Order Dated 12.3.2008 allowed the election petition & declared the election of Opposite Party No;2 as void & the present Petitioner to have been elected as sarpanch for the aforesaid Gram Panchayat.

3. Being aggrieved with the said order, Opp. Party No. 2 herein (Smt. Sansari Samal) preferred F.A.O. No. 6 of 2008 before the Court of Learned District Judge, Dhenkanal. After hearing the parties, Learned District Judge vide Order Dated 30.4.2009 while confirming the order of the Civil Judge so far as declaration of the election of Opposite Party No. 2 as void held that since the Petitioner herein & Bilasini Parida being the other two candidates, the election for the office of Sarpanch of Nagiaposi Gram Panchayat be filled up by fresh election, in view of casual vacancy, as per law.

4. Being aggrieved with the order, so far directing for fresh election, the Appellant has preferred this Writ Petition.

5. Learned Counsel appearing for the Petitioner submits that, without any discussion as to whether the Petitioner was rightly declared to have been elected as Sarpanch by the Trial Court, the Appellate Court ordered for fresh election. Section 40 of the G.P. Act lays down the grounds on which a candidate other than the returned candidate may be declared to have been elected. As per this provision, where a candidate has filed an election petition calling in question the validity of the election of the returned candidate with prayer to declare him as the returned candidate & the Court feels that the Petitioner secures the second highest votes in the election, it can declare him/her as the returned candidate.

6. In the present case, admittedly the Petitioner secured the second highest number of votes. She had also prayed in the election petition to declare her to have been elected, besides declaring the election of the returned candidate as void. So the Appellate Court committed error in setting aside the order of Trial Court declaring the Petitioner to have been elected. Learned Counsel appearing for Opposite Party No. 2 contends that as required under law, the Petitioner ought to have been arrayed all the contesting candidates as Opp. Parties, but the same having not been done, she cannot be declared to have been elected as Sarpanch.

7. In support of his contention the Learned Counsel for Opposite Party No. 2 relied on the decision Smt. Pravasini Jena v. Smt. Mayarani Biswas 100 CLT 501, where this Court held as follows:

Petitioner argued that on the declaration of the election of the Opp. Party as void, she (Petitioner) is entitled to the relief of declaration that she has been elected in view of the provision of law in Section 34 read with Section 38(2)(b) & when she had secured the second highest vote, such relief be granted to her. Rejecting such argument of the Petitioner, Learned District Judge recorded the finding that other persons contesting the election were not made party to the election dispute & in view of the ratio in the case of Prakash Khandre Vs. Dr. Vijaya