Summary
The Court upheld the concurrent findings disqualifying the returned candidate under the two-child bar in Section 45(1)(v) of the Orissa Panchayat Samiti Act, 1959, and held that, as she and the election petitioner were the only two contestants for Chairman, the Election Tribunal rightly declared the election petitioner duly elected under Sections 44-E and 44-J(2)(b); directing a fresh election after over three years of litigation was unwarranted.
Issues
- Whether the concurrent findings disqualifying the returned candidate as Panchayat Samiti Member, on the ground of a third child born after the cut-off date, called for interference.
- Whether, on the returned candidate's election being declared invalid, the election petitioner should have been declared duly elected as Chairman instead of a fresh election being ordered.
Provisions considered
- Section 45(1)(v), Orissa Panchayat Samiti Act, 1959Disqualification on the ground of having more than two children. The returned candidate did not cross-examine the election petitioner's witnesses despite ample opportunity, so the evidence proving the disqualification stood uncontroverted and the disqualification followed. (¶¶ 6, 19, 20)
- Section 44-E, Orissa Panchayat Samiti Act, 1959Read as permitting an election petitioner to claim, in addition to a declaration that the returned candidate's election is void, a further declaration that the petitioner has been duly elected. (¶¶ 21, 22)
- Section 44-J(2)(b), Orissa Panchayat Samiti Act, 1959Read as empowering the Civil Judge (Senior Division) acting as Election Tribunal, on finding an election invalid, to declare another candidate duly elected instead of declaring a casual vacancy; applied to restore the declaration in favour of the election petitioner. (¶¶ 21, 22, 25)
Held
- The objection to the Election Tribunal's jurisdiction was not seriously pressed on any valid legal ground and did not merit consideration. (¶ 18)
- A returned candidate who, despite ample opportunity, avoids cross-examining the election petitioner and her witnesses cannot complain of denial of opportunity; the uncontroverted evidence established the disqualification under Section 45(1)(v), and the three concurrent findings to that effect required no interference. (¶¶ 19, 20)
- Sections 44-E and 44-J(2)(b) together allow an election petitioner to seek, and the Tribunal to grant, a declaration that the petitioner or another candidate has been duly elected once the returned candidate's election is found invalid. (¶ 22)
- Where the election petitioner and the disqualified returned candidate were the only two contestants for the post of Chairman, no other candidate remained in the fray, and the Election Tribunal's declaration that the petitioner was duly elected was just, legal and equitable. Setting it aside so that other Samiti members could contest was an error, and requiring the petitioner to face a fresh election after more than three years of litigation would deprive her of the fruits of her successful challenge. (¶¶ 23, 24, 25, 26)
Result
Appeal of the election petitioner allowed; the Election Appellate Tribunal's direction declaring a casual vacancy and the High Court judgment to that extent set aside; the Election Tribunal's declaration that the election petitioner is elected Chairman restored, with compliance within two weeks. The returned candidate's special leave petition dismissed.