The main legal point established in the judgment is the interpretation of the provisions of Section 40 and Section 41 of the Orissa Grama Panchayat Act, 1964, and the finding that there was no involvement of corrupt practices in the case.

JUDGMENT :

Biswanath Rath, J.

This Writ Petition involves a challenge to the order dated 22nd June of 2019 passed by the 1st A.D.J., Khurda in the Election Appeal No.2 of 2019 in confirmation of the order dated 28.2.2019 passed by the Civil Judge (Jr. Divn.), Khurda in the Election Misc. Case No.5 of 2017.

2. Short background involving the case at hand is that the opposite party as the election petitioner filed Election Case under the provisions of Orissa Grama Panchayat Act, 1964 hereinafter in short be called as “The Act, 1964” assailing the election of the present petitioner on the basis of the allegation made in paragraph no.4 involving election of a candidate disqualified U/s.25 of the Act, 1964 and in paragraph no.5 indicating that the result of the return candidate is an outcome of improper admission of votes in his favour as well as improper rejection of the votes casted in favour of the election petitioner, further also adopting corrupt practice by the return candidate. The present petitioner as the opposite party no.1 therein on his appearance contested the election petition on the premises that the Election Petition was not maintainable and further also refuting each and every allegation of the election petitioner more particularly specifically denying the allegation of corrupt practice adopted by the return candidate.

3. On the basis of the pleadings of the respective parties the trial court framed the following issues:

“(I) Whether the Election Misc. Case is maintainable in the eye of law?

(II) Whether the Petitioner has got any cause of action to file this Election Misc. Case against the Opp. Parties?

(III) Whether there was double voting by voters in more than one booth and unfair practice by casting vote in the name of dead persons?

(IV) Whether the Opp. Party No.1 was having any arrear outstanding with Orami Service Co-operative Society as on 23.12.2016 i.e., the date of filing of nomination paper and he failed to repay the same leading to his disqualification for being elected as Sarpanch?”

4. Based on the evidence, the submissions of the parties and taking into account the provisions of law and for the issue nos.III & IV remaining vital, taking up such issues, issue no.III was answered against the election petitioner whereas issue no.IV was answered in favour of the election petitioner. On the basis of the findings on the issue no.IV in favour of the election petitioner the trial court allowed the Election Misc. Case thereby declaring the election of the return candidate as Sarpanch of Orabarsasingh Gram Panchayat invalid for being disqualified U/s.25(1)(1) of the Orissa Gram Panchayat Act and further declaring the election petitioner for his securing next highest votes as elected candidate for the post of Sarpanch of the Orabarsasingh Gram Panchayat with immediate effect. Being aggrieved the return candidate filed appeal relying on the finding on issue no.IV and submitted that for the finding on issue no.IV against of the election petitioner, he should not have been declared as a return candidate and the only option left with the Election Tribunal after declaring the election of the return candidate bad, was to give direction for fresh election for the casual vacancy. On appeal, the Election Appeal was registered as Election Appeal No.2 of 2019 and the appeal was decided on contest thereby while dismissing the appeal confirmed the judgment in the Election Misc. Case.

Appellant being the petitioner filed the Writ Petition challenging the order vide Annexures-2 & 5.

5. Shri A.P. Bose, learned counsel for the petitioner taking this Court to the provisions at Section 40 & 41 of the Orissa Gram Panchayat Act read with finding on issue no.IV by the trial court and the judgment of the Hon’ble apex Court in confirmation of the stand taken by the return candidate submitted that declaring the election petitioner as elected candidate being dependant on the finding on issue No.III, in the event of allowing the election petition,