The main legal point established in the judgment is that the election of a Chairman of a Panchayat Samiti can be challenged under the provisions of the Orissa Panchayat Samiti Act, 1958.

JUDGMENT :

M.M. Das, J. - The Petitioner was declared elected as Chairman of Gondia Panchayat Samiti. His election was challenged by the Opp. Party No. 1 in Election Petition No. 28 of 2007 before the Learned Civil Judge (Senior Division), Dhenkanal on the grounds, inter alia, that despite the objection raised by him before the Election Officer - Opp. Party No. 2 that 7 to 8 ballot papers were liable to be rejected on account of visible signs or marks present therein so as to identify the respective voters, but the Opp. Party No. 2 improperly counted the votes in favour of the successful candidate (Petitioner). After closure of evidence from both the sides, the Election Tribunal on scrutiny of the ballot papers declaring the election of the Petitioner as Chairman to be null & void, declared the Opp. Party No. 1 to have been successfully elected to the post of Chairman. Aggrieved by the Judgment passed by the Election Tribunal, the Petitioner preferred an appeal registered as FAO No. 7 of 2008 before the Learned District Judge, Dhenkanal. The Learned District Judge upon hearing of the said appeal confirmed the Judgment of the Election Tribunal. Being aggrieved, the Petitioner has approached this Court in the present Writ Petition for appropriate relief.

2. Learned Counsel for the Petitioner raised a preliminary question with regard to maintainability of the election dispute, inter alia, contending that under Chapter-6(A) relating to election dispute in Orissa Panchayat Samiti Act, 1958 (hereinafter referred to as 'the Act'), there is no provision to question the election of a person as Chairman of a Panchayat Samiti. For convenience, this Court, therefore, feels it appropriate that before entering into the merit of the case, the following question should be addressed....

Whether there is any scope to challenge the election to the post of Chairman of a Panchayat Samiti u/s 44-A of the Orissa Panchayat Samiti Act, 1959 ?

In the case of Suresh Kumar Azad Vs. State of Orissa and Others a Division Bench of this Court presided over by the then Chief Justice, analyzing the law as it stood prior to its amendment in 1991 as well as the Amending Act of 1991, held in paragraphs-9 & 10 as follows:

9. The change is discernible & it is definitely correct to submit that a Panchayat Samiti Chairman now has to be first elected as a member of the Samiti itself. The further submission, however, that Section 44-A, which speaks about challenge to the election of a member, cannot, therefore, be taken within its fold the election of the Chairman does not follow ipso facto. According to us, despite the aforesaid change having been brought about by the Amending Act of 1991, Clause (a) of Section, 16(1) shall recognize the Chairman as a member. It is this provision which had led this Court in the earlier decision along with what was stated in Section 44-B(5), which provision has remained unaltered to hold that the election of a Chairman could also be subject of election dispute visualized by Section 44-A. According to Shri Palit, mention of the word 'Chairman' in Section 44-B(5) is because of the fact-person having elected as member of the Panchayat Samiti might have been elected in the meantime as a Chairman & so to make the position clear that despite such a person having been elected as Chairman, his election as a member can still be questioned by filing a petition u/s 44-A. But then, the Amended Act of 1991 recognizes a Chairman elected even in accordance with the provision of Sub-Section (3), as amended in 1991, as a member. So, the change brought out in Sub-Section (3) which we have adverted earlier, has not altered the position & the ratio of the earlier decision still holds good.

10. We would, therefore, hold that it is open to a person aggrieved with the election of the Chairman, & we make it clear that this challenge is relatable to the challenge of the person as the Chairman as distinguished from his election as a member, can still be questioned un