Puspanjali Chhatria vs State Of Orissa & Others
2022 Latest Caselaw 53 Ori

                    IN THE HIGH COURT OF ORISSA, CUTTACK

                                 W.P.(C) No.8585 of 2017

             An application under Articles 226 & 227 of the Constitution of
        India.
                                      ----------------------------

             Puspanjali Chhatria              .......                    Petitioner


                                            -Versus-


             State of Orissa & others .......                        Opp. Parties

                   For Petitioner:               -      Ms. G.Majhi,
                                                        Advocate

                   For Opp. Parties:             -      Mr. A.K.Nanda,
                                                        Addl. Government Advocate
                                                        (For O.P. Nos. 3 & 4)
                                                        Mr.S.K.Samal,
                                                        Addl. Government Advocate
                                                        (For O.P. No 5 )
                                      ----------------------------
                                        JUDGMENT

P R E S E N T:

MR. JUSTICE BISWAJIT MOHANTY

---------------------------------------------------------------------------------- Date of Hearing: 23.12.2021 Date of Judgment: 05.01.2022

----------------------------------------------------------------------------------

B. Mohanty, J. This writ petition has been filed mainly with prayer

to direct the opposite parties to publish the name of the

petitioner as winning Sarpanch and names of other winning

Ward Members of Kotagaon Grama Panchayat under

Kalampur Panchayat Samiti in the district of Kalahandi as // 2 //

per Section 15 of the Odisha Grama Panchayats Act, 1964, for

short "the Act" and to further direct them to hand over the

power to the petitioner as Sarpanch.

2. Ms. Majhi, learned counsel for the petitioner

submitted that initially during July, 2016 by way of a

notification issued by Government of Odisha in Panchayati

Raj Department Mandal Grama Panchayat falling under

Dharamgarh Sub-Division of Kalahandi district was

trifurcated into Mandal Grama Panchayat, Balagaon Gram

Panchayat and Nuagaon Gram Panchayat. Balagaon Grama

Panchayat covered villages like Balagaon, Khandidangariguda

and Kotagaon. Later on during December, 2016, the above

noted trifurcation was cancelled and existing Mandal Grama

Panchayat was bifurcated to Balagaon Grama Panchayat and

Mandal Grama Panchayat. Balagaon Grama Panchayat

covered villages Balagaon, Khandidangariguda, Kotagaon,

Bhalubutura and Bindhaniguda with headquarter at

Kotagaon. Further during same month i.e. December 2016,

the above bifurcation was cancelled and Mandal Grama

Panchayat was again trifurcated to Kotagaon Grama

Panchayat, Nuagaon Grama Panchayat and Mandal Grama

// 3 //

Panchayat. In such background notification dated 23.12.2016

was issued under Annexure-1 constituting Kotagaon as a new

Grama Panchayat. On 27.12.2016, a notification was

published by the State Election Commission, Odisha under

Annexure-2 appointing various dates with regard to holding of

election of Ward Members and Sarpanchas of various Grama

Panchayats of the State. Kotagaon Grama Panchayat consists

of 11 wards. However none filed nominations in respect of 6

Wards covered by villages Balagaon and Khandidangiriguda

and accordingly no election could be held in respect of these 6

Wards. But in other Wards, the election was conducted

smoothly and accordingly Ward Members for such Wards

were declared elected and the petitioner was declared elected

as Sarpanch as per Annexure-5. However, the Block

Development Officer-cum-Election Officer, Kalampur (opposite

party No.4) did not publish the names of the petitioner and

other elected Ward Members under Section 15 of "the Act"

read with Rule 52 of the Orissa Grama Panchayats Election

Rules, 1965, for short, "the Rules" as a result of which though

the petitioner was elected as Sarpanch however she has not

been able to perform her duties as Sarpanch. According to her

// 4 //

such non-publication is illegal as the same violates Section 15

of "the Act". In such background, the present writ petition has

been filed making the above noted prayers.

3. Mr.A.K.Nanda learned Addl. Government Advocate

submitted that Kotagaon Grama Panchyat was carved out of

Mandal Grama Panchayat after much administrative exercise.

Initially Mandal Grama Panchayat was trifurcated to

Balagaon, Nuagaon and Mandal Grama Panchayats with

Balagaon Grama Panchayat covering villages like Balagaon,

Khandidangariguda and Kotagaon. Later on matter was

reconsidered in the light of observations made by this Court

in W.P.(C) No. 16861 of 2016 and the above noted trifurcation

was cancelled and Mandal Grama Panchayat was bifurcated

to Balagaon Grama Panchayat and Mandal Grama Panchayat.

On further consideration the above bifurcation was nullified

and again Mandal Grama Panchayat was trifurcated to

Kotagaon Grama Panchayat, Nuagaon Grama Panchayat and

Mandal Grama Panchayat. On account of all these though

Kotagaon Grama Panchayat has 11 Wards, but pursuant to

Annexure-2 no nominations were filed in 6 Wards viz. Ward

Nos. 6 to 11 covering villages Balagaon and

// 5 //

Khandidangariguda during 10.1.2017 to 17.1.2017.

Accordingly State Election Commission issued Notification No.

1199 dated 21.1.2017 for filing of nominations for the second

time from 27.1.2017 to 30.1.2017. Again no nominations were

filed. In such background on 8.2.2017 Block Development

Officer-cum-Election Officer, Kalampur (opposite party No.4)

submitted a report to the Collector & District Election Officer,

Kalahandi under Annexure-A/3. Pursuant to this, on

20.2.2017 the Collector, Kalahandi (opposite party No.3)

wrote to Sub-Collector, Dharamgarh (opposite party No.5)

under Annexure-B/3 to nominate persons to such Wards with

least practicable delay in tune with Section 13 of "the Act"

and Rules 30 and 54 of "the Rules". On 21.2.2017 vide

Annexure-A/4, the opposite party No.5 wrote to Block

Development Officers under Dharamgarh Sub-Division to

submit proposals to nominate persons to such Wards where

no nominations have been filed resulting in failure of election

held for the second time. According to him pursuant to the

above noted letter, the Block Development Officer-cum-

Election Officer, Kalampur (opposite party No.4) in the

peculiar background of the case requested the villagers of

// 6 //

Balagaon and Khandi Dangariguda to select one person with

his/her consent for each Ward viz, Ward Nos. 6 to 11 for

being nominated as Ward Members by the Sub-Collector of

Dharamgarh for constitution of Grama Panchayat body. But

villagers of both the villages strongly refused the proposal and

demanded for declaration of Balagaon Grama Panchayat,

which was earlier notified twice but later on withdrawn. In

this connection the villagers of both the above noted villages

submitted their representations to opposite party No.4 on

5.7.2017 which have been enclosed to Annexure-B/4.

According to Mr. Samal, learned Addl. Government Advocate

on account of such deadlock the Sub-Collector, Dharmgarh

(opposite party No.5) could not act as per the Rule 54 of "the

Rules". It is in such background publication of result of

election under Section 15 of "the Act" could not be made.

Both the learned A.G.As. submitted that since only 5 Wards

returned elected candidates along with Sarapanch, only 6

elected persons were available and with regard to rest 6

Wards neither anyone could be elected or nominated on

account of intractable attitude of the villagers of Balagaon and

Khandi Dangariguda. Thus in the absence of nominated

// 7 //

members and in absence of a majority, no wrong has been

committed by the authorities in not issuing the notification

under Section 15 of "the Act". They also submitted that the

present writ petition has been filed by the petitioner only and

she cannot espouse the cause of other 5 elected Ward

Members. They further submitted that as the election to

Grama Panchayats of the State is now imminent, this Court

may not otherwise interfere in the matter.

4. In reply, Ms.Majhi reiterated her earlier

submission and stated that upon receipt of the letter from

Collector under Annexure-B/3, the opposite party No.5

should have nominated persons and should not have asked

the opposite party No.4 to propose the names for nomination

under Annexure-A/4. Both the learned A.G.As. defended the

letter under Annexure-A/4 submitting that in the background

of peculiar facts and circumstances, when the feelings were

running high on account of re-organisation of Grama

Panchayats and when voters of the 6 Wards have refused to

file nominations despite two opportunities being given to

them, no wrong was committed by opposite party No.5 asking

// 8 //

opposite party No.4 to propose names, for nomination to be

made by him.

5. Heard Ms. Majhi, learned counsel for the petitioner

and Mr.A.K.Nanda as well as Mr.S.K.Samal, learned Addl.

Government Advocate. No rejoinder has been filed by the

petitioner to the counter of opposite parties.

6. The undisputed facts in this case are that

Kotagaon Grama Panchayat was constituted after

undertaking a series of exercise which included trifurcation,

bifurcation and re-organisation of existing Mandal Grama

Panchayat, which probably did not satisfy one and all. The

said Grama Panchayat has got 11 Wards and in 6 Wards

namely Ward Numbers 6 to 11 falling under village Balagaon

and Khandi Dangariguda, nobody filed nominations for being

elected as Ward Members though opportunity was given to

them twice by the State Election Commission. In such

background the Collector, Kalahandi (opposite party no.3)

wrote to Sub-Collector, Dharamgarh on 20.2.2017 under

Annexure-B/3 for nominating eligible persons to such vacant

Offices of Ward Members. It may be noted here that as per

Rule 54 of "the Rules" Sub-Collector has been assigned with

// 9 //

the requirement to nominate a person where there has been a

failure of election for the second time for any seat so that

ultimately notification under Section 15 of "the Act" can be

issued. It appears in order to get such names, in the peculiar

facts and circumstances, Sub-Collector, Dharamgarh on

21.2.2017 under Annexure-A/4 wrote to the Block

Development Officers to propose names so that such persons

can be nominated. This letter issued by the Sub-Collector to

the Block Development Officer has not been challenged by the

petitioner. In fact there exists no pleading from the side of the

petitioner questioning its validity. Thereafter it appears the

Block Development Officer, Kalampur (opposite party No.4)

tried his best to persuade villagers of Balagaon and Khandi

Dangariguda and requested them to select one person with

his/her consent for each of the Wards covering Ward Nos. 6

to 11 to be nominated by Ward Members by the Sub-

Collector, Dharmgarh. But villagers of both the villages

refused to select any person to be nominated as Ward

Members rather demanded restoration of Balagaon Grama

Panchayat. It is in such background the Sub-Collector,

Dharamgarh (opposite party No.5) has not been able to

// 10 //

nominate any person as required under Rule 54 of "the Rules"

for issuance of ultimate notification under Section 15 of "the

Act". Before proceeding further, let us refer to certain relevant

provision like Sections 13, 15 of "the Act" and Rules 52 and

54 of "the Rules", which are quoted hereunder:-

"Section-13. Nomination on failure of election (reservation in certain cases)-(1) If for any reason whatsoever the concerned electorate fails to return a Sarpanch, or a Naib-Sarpanch, or any other member a fresh election shall be held for the purpose; and if at such fresh election no person is elected the Sub-Divisional Officer shall nominate a person eligible for election to such office to be the Sarpanch, Naib-Sarpanch or such other member, as the case may be, who shall on being so nominated be deemed to have been duly elected. (2) Where the office of the Sarpanch or the seat of any member is reserved under Section 10 for any particular category and the Sub-Collector fails to nominate under Sub-sec.(1) a person to such office or seat, as the case may be, for non-availability of an eligible person belonging to that category, such office or seat shall, on recommendation being made to that effect by the Sub-Collector be de-reserved by the Collector after such enquiry as he may deem fit and shall, thereafter, be filled up by fresh election." "Section-15.Publication of result of election- Subject to the rules, if any, made in that behalf the names of all persons elected or nominated as Sarpanch, Naib-Sarpanch or any other member of the Grama Panchayat shall, as soon as may be after such election on nomination, be published by the prescribed authority in such manner as may be prescribed.

Provided that if the prescribed authority is satisfied that the majority of members including the Sarpanch of the Grama Panchayat have been duly

// 11 //

returned, he shall publish the names of such members, without awaiting for the result of election whether conducted or not of the remaining members."

"Rule-52. If on the basis of the reports of the Presiding Officers of each ward in regard to election of ward members and his own report relating to election of the Sarpanch, the Election Officer finds that majority of members including the Sarpanch have been duly returned, he shall publish the names of the Sarpanch and also the ward members declared duly elected to each Grama Panchayat in the notice board of the block office as required under Section 15 of the Act. A copy of the notification shall be forwarded by the Election Officer to the Collector of the district where election officer is other than the Collector and also to the Grama Panchayat concerned and to the ward members and Sarpanch elected."

"Rule-54. In case there is a failure of election for the second time for any seat, the Election Officer shall forthwith intimate the position to the Sub- Collector. On receipt of such intimation the Sub- Collector shall nominate a person to such seat with the least practicable delay and inform the Election Officer so that he may include the name of the nominated person in the notification under Section 15 of the Act. The Sub-Collector shall also forward a copy of the list of nominated persons to the Collector."

7. Section 13 and Rule 54 deal with nomination in

case of failure of election for the second time. As per both the

provisions in case of failure of election for second time, Sub-

Divisional Officer/Sub-Collector has been authorized to

nominate persons. Once so nominated, these persons would

be deemed to have been duly elected. Under the present

// 12 //

circumstances, where no candidate came forward for

contesting election and nomination in 6 Wards as the villagers

were demanding constitution of a separate Grama Panchayat,

an authority can go forward with nomination only when a

person is willing to shoulder the responsibility. Therefore the

opposite party No.5 vide Annexure-A/4, which has not been

challenged by the petitioner, keeping in mind the ground

reality wrote to the opposite party No.4 to propose names for

nomination as probably the opposite party No.4 by virtue of

his office was in a better position to suggest appropriate

names eligible for such nomination. Despite his efforts, it

seems on account polarized atmosphere amongst the

villagers, the opposite party No.4 could not succeed. In such

background the opposite party No.5 could not make any

nomination.

8. Section 15 of "the Act" makes it clear that subject

to rules made in that behalf names of all persons elected or

nominated as Sarpanch, Naib-Sarpanch and Ward Member

shall be published soon after such election or nomination.

Proviso to Section 15 permits publication when majority of

members including the Sarpanch have been duly returned.

// 13 //

Rule 52 makes it clear that when Election Officer finds that

majority of members including the Sarpanch have been duly

returned, he shall publish the names of Sarpanch and Ward

Members duly elected in the notice board under Section 15 of

"the Act". So a harmonious reading of Section 15 & Rule 52

makes it clear that unless a majority of Ward Members

including Sarpanch has been elected/nominated, no

publication of result of election under Section 15 will be

permissible. Here only 6 were elected including Sarpanch and

offices of rest 6 Ward Members remained vacant both on

account of failure of election as well as nomination. Here as

indicated earlier on account polarized atmosphere, none could

be nominated for 6 Wards. Under these circumstances, clearly

a majority of seven as required under law was not available.

In such background and in peculiar facts and circumstances

of the case, this Court is of the opinion that no illegality has

been committed by the authorities in not issuing a

publication, under Section 15 of "the Act".

Accordingly, the writ petition is dismissed.

...................................

Biswajit Mohanty, J.

Orissa High Court, Cuttack The 5th January, 2022 /Kishore