Manjulata Panda & Ors vs Unknown
2022 Latest Caselaw 6330 Ori

                 ORISSA HIGH COURT : C U T T A C K

                              W.P.(C) NO.15170 OF 2022
                                        With
                          W.P.(C) NOS.16825 & 16833 OF 2022

       In the matter of Applications under Articles 226 & 227 of the Constitution of India.
AFR
      In WP(C) NO.15170 OF 2022


      Manjulata Panda & ors.                              :      Petitioners
                                           -Versus-
      State of Odisha & ors.                              :      Opp.Parties


      For Petitioners                      :       M/s.S.K.Dalai & P.Dash
      For O.Ps.1 to 4                      :       Mr.S.Mishra, ASC
      For O.Ps.5 to 13                     :      None


      In WP(C) NO.16825 OF 2022

      Bishnupriya Biswal & ors.                           :      Petitioners
                                           -Versus-
      State of Odisha & ors.                              :      Opp.Parties

      For Petitioners                      :       M/s.S.K.Dalai & P.Dash
      For O.Ps.1 to 4                      :       Mr.S.Mishra, ASC
      For O.Ps.5 to 9                      :      None


      In WP(C) NO.16833 OF 2022

      Sradhanjali Padhi                                   :      Petitioner
                                           -Versus-
      State of Odisha & ors.                              :      Opp.Parties


      For Petitioner                       :       M/s.D.Nayak, Sr.Adv.,
                                                   B.Mishra & P.Nayak

      For O.Ps.1 to 5                      :       Mr.S.Mishra, ASC
                                                                               Page 1 of 27
                                          // 2 //




For O.P.6                           :    None


                       CORAM :
                       JUSTICE BISWANATH RATH

     Date of hearing : 20.10.2022   &   Date of Judgment : 03.11.2022


1.

All these Writ Petitions since involve almost similar facts and point

of law, on consent of the learned counsel for the Parties, the same are

taken up together, heard analogously and decided by this common

judgment.

2. W.P.(C) No.15170/2022 involves a challenge to the order dated

24.5.2022 at Annexure-6 issued by the Sub-Collector, Sadar, Cuttack

nominating Smt. Sumitra Rout, wife of Purna Chandra Rout of Ward

No.5, as Naib Sarapanch in Jalarpur Gram Panchayat in exercise of power

under Section 13 of the Orissa Gram Panchayat Act, 1964.

W.P.(C) No.16825/2022 involves a challenge to the order dated

24.6.2022 issued by the Sub-Collector, Puri at Annexure-4 thereby

nominating Smt. Pravasini Pradhan, wife of Bhramar Pradhan of Ward

No.11 as Naib Sarapanch of Alanda Gram Panchayat under

Krushnaprasad Block.

Similarly, in filing W.P.(C) No.16833/2022 the Petitioner herein

challenges the communication dated 2.7.2022 at Annexure-3 whereby the

// 3 //

Sub-Collector, Bhadrak has nominated one Smt. Truptilata Ray, wife of

Nihar Ray of Ward No.6 as Naib Sarapanch of Aradi Gram Panchayat.

3. W.P.(C) No.115170/2022 is filed by the Petitioners being the

Sarapanch and Ward Members of Jalarpur Gram Panchayat under Niali

Block involving a challenge to the nomination of Naib Sarapanch of

Jalarpur Gram Panchayat, whereas W.P.(C) No.16825/2022 is at the

instance of some Ward Members in their challenge to the nomination of

Naib Sarapanch in respect of Alanda Gram Panchayat. The third one

being W.P.(C) No.16833/2022 appears to be filed by a Voter of Bhadrak

District in respect of challenge to the nomination of Naib Sarapanch of

Aradi Gram Panchayat.

4. All the three Writ Petitions involved a common question of law as

to whether the nominations made under the impugned orders involved

herein are in terms of the provisions in the Orissa Gram Panchayat Act,

1964 (herein after called as "the Act") read with provisions in the Orissa

Gram Panchayat Election Rules, 1965 (herein after called as, "the

Rules")? Further for common ground of attack involved herein, this Court

takes into account the common ground of challenge, as raised by the

respective Counsel, Mr.S.K.Dalai and Mr.D.Nayak, both appearing for

the respective Petitioners. This Court taking into account the learned

Counsel herein in their challenge to the aforesaid aspect, taking into

// 4 //

account the factual aspect as well as legal aspect finds, all the Writ

Petitions involve a common factual background after the election for the

post of Sarapanch of the respective Gram Panchayats on issuing

Notifications for election for the post of Naib Sarapanch and in spite of

presence of majority of the Members on the date of election of Naib

Sarapanch in the respective Gram Panchayat instead of proceeding to

conduct election of Naib Sarpanch in terms of the provision at Section 14

of The Odisha Grama Panchayats Act 1964, the Public Authority in

supersession of the resolution of the majority Members present in the

Panchayat meeting for the purpose brought out the impugned orders in

illegally nominating altogether different persons, as their choice for the

post of Naib Sarapanch of the respective Gram Panchayats. There is no

dispute to the fact at the Bar, however, on the total Member strength of

the Gram Panchayats respectively as well as on the legal provision taking

place herein, further on the number of Members present in the so-called

meeting in respect of each Gram Panchayat. Factual and undisputed

position further reveal, so far as W.P.(C) No.15170/2022 involving

Jalarpur Gram Panchayat is concerned, on the election of the Gram

Panchayat came to be over and the Sarapanch being selected, there was

notice for convening meeting of the Members on 11.3.2022 at 10. A.M.

by the B.D.O.-cum-Election Officer, Niali, vide Annexure-3. Even in the

// 5 //

meeting dated 11.3.2022 all total ten Members were available out of

nineteen Members including the Sarapanch in a body of nineteen

Members and Sarapanch (19+1) but the Ward No.2 remaining vacant.

The meeting of the Presiding Officer ended with observation of the

Election Commissioner that the meeting failed for non-availability of

Coram resulting therein issuing of the directive under Annexure-6 by the

Competent Authority entering into nomination of Naib Sarapanch in

exercise of power under Section 13 of the Act.

Similarly so far as W.P.(C) No.16825/2022 is concerned,

background involved herein, after completion of the election of the

Sarapanch of Alanda Gram Panchayat and the Gram Panchayat consisted

of eleven Wards and Sarapanch (11+1) there used to be twelve Members

but for there is one Ward particularly Ward No.8 remained vacant, there

was all total ten Ward Members available plus Saparanch (10+1) taking it

to be total eleven voters. Here also a meeting was convened on 11.3.2022

under the B.D.O.-cum-Election Officer for undertaking the exercise of

election of the Gram Panchayat, vide Annexure-1 and in spite of six

Members including Sarapanch being present in the proceeding with one

Ward remaining vacant, there has been illegal observation by the Election

Officer observing the meeting has no Coram and while deferring the

meeting later on issuing the impugned order under Annexure-4

// 6 //

nominated the Naib Sarapanch of the Gram Panchayat, which action is

impugned herein.

Similarly, so far as W.P.(C) No.16833/2022 is concerned,

involving Aradi Gram Panchayat after election of the Sarapanch is over,

in a Panchayat consisting of thirteen Wards, there is election of twelve

Wards, one Ward remaining vacant. Making the Panchayat having twelve

Members + Sarapanch (12+1) thereby the total available is twelve and

Sarapanch for election of Naib Sarapanch got attended by all total seven

with one Ward remaining vacant. While matter stood thus, there appears

to be convening of a meeting on the same date, i.e., 11.3.2022 under the

B.D.O.-cum-Election Officer for selection of Naib Sarapanch from out of

total thirteen Members as there was one vacancy out of total thirteen

Members and a Sarapanch, in spite of availability of seven including the

Sarapanch here also the Election Officer closed the proceeding observing

there is non-availability of Coram and thereby deferring the proceeding of

the meeting and at a subsequent stage, there is issuing of communication

by the Sub-Collector regarding nomination of Ward Member as the Naib

Sarapanch of Aradi Gram Panchayat impugned herein.

In W.P.(C) No.16825/2022, it appears, there is nomination of Ward

Member of Ward No.11 as Naib Sarapanch in favour of Pravasini

Pradhan, who was even absent in the election proceeding. So far as

// 7 //

W.P.(C) No.15170/2022 is concerned, there is nomination in favour of

Smt.Sumitra Rout, Ward Member of Ward No.5, who is also found to be

absent in the election of Naib Sarapanch.

5. This Court here records the common argument of the respective

Counsel appearing in all the Writ Petitions while keeping in view the

above factual aspect, in order to convince their claim in each of the Writ

Petitions while advancing their submissions through the above factual

aspect and taking this Court to the legal aspect involved herein, an

attempt is made by the learned counsel appearing for the respective

Petitioners taking this Court also to Section 10 of the Act, argument is

advanced on the composition of the Gram Panchayat, there is also attempt

to take this Court to the provision at Section 15 of the Act requiring

convening of meeting for election of Naib Sarapanch required to be

elected in presence of majority of the Members of the Gram Panchayat. It

is here also reading the provision at Section 13 of the Act, learned

counsel for the Petitioners submitted on the aspect of Quorum required

for such meeting. Taking to the provision available at Sections 10 & 14 of

the Act together with Rule-76 of the Rules, an argument is advanced on

the premises that the Ward remaining vacant should not come in the way

of assessing the Members present and accordingly, majority of such

Members present or not is to be understood. At this stage, demonstrating

// 8 //

through the Members present in taking to the pleading with regard to total

Members of the Gram Panchayat further with the admitted pleading that

in two of the Writ Petitions, one Ward Member each remaining vacant,

Mr.Dalai, learned counsel for the Petitioners contended, in reference to

the Members' present status discussed herein above that there was

availability of majority of Members. It is thus argued, since there was

availability of majority of Members, the only option available with the

Election Officer to remain adhered to the provision at Section 15 of the

Act and proceeding for holding the election of Naib Sarapanch therein. It

is in such view of the matter, it is further argued that in the above whole

background of the matter, there was no room for the Election Officer to

declare the meeting convened postponed and further bringing in the

impugned Notification in forcing through their choice of nomination in

clear ignorance of their choice in the nomination of Naib Sarapanch in the

election process or amongst the elected Members. It is thus urged, such

action not permissible in the eye of law. Learned counsel for the

respective Writ Petitioners thus prayed, the impugned orders involving

the Writ Petitions should be interfered with and set aside and the Writ

Petitions be disposed of with clear direction for proceeding from the stage

of the meeting declared postponed in the conducting of election to the

Post of Naib Sarapanch. Learned counsel also urged, once there is

// 9 //

provision to go for nomination only after the Panchayat fails to select

Naib Sarapanch even after its second attempt, it is claimed in no

circumstance, there was any room for undertaking an exercise for

nomination of the Naib Sarapanch only at the end of the first meeting.

6. In response to the claim of the Petitioners, there has been filing

counter affidavit in one case and adoption of grounds in the said counter

in the other Writ Petitions. Advancing submission Mr.S.Mishra, learned

Additional Standing Counsel appearing for the State taking this Court to

the counter affidavit in one of the Writ Petitions, similar counter affidavit

adopted in other Writ Petitions and through the counter averments while

admitting the number of Members including Sarapanch as shown through

the proceedings in each Gram Panchayat involved, vide Page-33 of

W.P.(C) No.15170/2022, Page-28 of W.P.(C) No.16825/2022 and Page-9

of W.P.(C) No.16833/2022, further taking to the observations of the

Election Officer for his finding no Coram for requiring to further conduct

the meeting and on reading through the provision at Section 13 of the Act

claimed, the impugned orders involved herein are justified. Mr.Mishra

further in reference to the written note of submission on behalf of the

State-O.Ps., while referring to the provision at Section 13(1) & 14(1) of

the Act and the Rules contended, the B.D.O. with all his competency has

passed the reasonable orders impugned herein looking to the situation

// 10 //

available at the relevant point of time and for there is already observation

of the Election Officer, the meeting lacking Quorum, the impugned

orders become justified. Mr.Mishra however in reference to the Members

available in the meeting for election of Naib Sarapanch referred to the

Election Commissioner, vide letter bearing no.3812/SCCC dated

7.3.2012 filed through written notes of submission, vide Annexure-E/4

and Annexure-E/5 contended, for the instruction of the State Election

Commissioner, the total number of Members assigned should include

even the vacant Wards to determine the majority for the purpose of

Coram while admitting that the Sarapanch is also taken as a Member for

the purpose. So far as W.P.(C) No.15170/2022, there is clear admission

that the Gram Panchayat involved herein was having all total nineteen

Ward Members and the Sarapanch (19+1) since taken as a Member also

for the purpose of voting making it twenty and also admitting that Ward

No.2 remaining vacant thus available vote becoming nineteen, at the

same time, claiming that total number of Members since twenty

submitted there since available only ten Members present, it did not attain

majority of eleven Members being present, thus there was no Quorum. So

far as W.P.(C) No.16825/2022 is concerned, while admitting that the

Gram Panchayat involved herein having eleven Members and taking

Sarapanch as another Member, the Panchayat appears to be having total

// 11 //

twelve Members for vote and six Members present with Ward No.8

remaining vacant, claimed, there was no majority as Quorum required in

the minimum presence of seven Members. So far as W.P.(C)

No.16833/2022 is concerned, Mr.Mishra, learned Additional Standing

Counsel claimed, the Panchayat involves fourteen Members including

Sarapanch though one Ward remaining vacant and for there is seven

Members available all total and Quorum since required in the minimum

eight Members, the meeting was bound to be postponed. Mr.Mishra thus

contended, situation involved herein automatically making way of

nomination claimed there is no illegality in going for nomination

involving all these Gram Panchayats.

In the above circumstance, Mr.Mishra, learned Additional Standing

Counsel claimed, as none of the Panchayats' meeting got the presence of

minimum requirement and for the meeting suffering on account of

Coram, there ought to play of Section 13 of the Act and in the

circumstance, Mr. Mishra claimed, there is no illegality in bringing out

the Notification, vide the impugned orders on application of provision

under Section 13 of the Act. To strengthen the stand of the State,

Mr.Mishra also relied upon two decisions of the Hon'ble apex Court in

Senior Superintendent of Post Officers, Allahabad & ors. : (1989) 4

SCC 318 and State of Jharkhand & ors vrs. Jitendra Kumar Srivastava

// 12 //

& anr : (2013) 12 SCC 210 and taking this Court through the said

decisions, Mr.Mishra also attempted to justify the State's act.

7. From the whole submission of the respective Counsel, this Court

finds, both sides have relied on provisions at Sections-4, 10, 13, 14 & 15

of the Act and Rule-76 of the Rules, which are taken note as herein below

:-

"Section 4 - Constitution and incorporation of Grama Sasan :- (1) For every Grama there shall be a Grama Sasan which shall be composed of all persons registered by virtue of the Representation of the People Act, 1950 (43 of 1950) in so much of the Electoral Roll for any Assembly Constituency for the time being in force as relates to the Grama 1[and unless the Election Commission directs otherwise] of the roll shall be deemed to be the Electoral Roll in respect of the Grama. (2) The Grama Sasan shall be a body corporate by the name of the Grama to which it relates, having perpetual succession and common seal, with power, subject to the provisions of this Act and the rules made thereunder, to acquire, hold and dispose of property and to contract land may by the said name sue and be sued. (3) The Office and headquarters of the Grama Sasan shall be situated within the limits of the Grama and unless otherwise ordered by the State Government in the village bearing the name of the Grama.

Section-10 - Constitution of Grama Panchayat :- (1) Every Grama Panchayat shall be composed of the following members, namely :

(a) a member to be elected by the persons referred to in Sub- Section (1) of Section 4 from amongst themselves who shall be the Sarpanch; and

(b) a member to be elected from each of the Wards by the persons on the Electoral Roll for the Ward from amongst themselves;

(c) * * *] (2) There shall be a Naib-Sarpanch in respect of every Grama Panchayat to be elected in accordance with the provisions of Section 14.

// 13 //

(3) (a) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Grama Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Grama Panchayat as the population of the Scheduled Castes in the concerned Grama or of the Scheduled Tribes in that Grama bears to the total population of that Grama and such seats shall be allotted by rotation to different Wards in a Grama Panchayat :

Provided that where the Population of the Scheduled Castes or, as the case may be, the Scheduled Tribes in a Grama is not sufficient for the reservation of any Seat, one seat for the Scheduled Castes or, as the case may be, one seat for the scheduled Tribes shall be reserved in that Grama:

[Provided further that in the Scheduled Areas, not less than one-half of the total number of seats to be filled by direct election shall be reserved for the Scheduled Tribes]

(b) As nearly as may be, but not less than [one-half] of the total number of seats reserved under Clause (a) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes :

Provided that where only two seats are reserved for the Scheduled Castes or, as the case may be, the Scheduled Tribes, one of the two seats shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.

[(b-1) As nearly as may be, but not less than, twenty- seven per centum of the seats of every Grama Panchayat shall be reserved in favour of backward class of citizens as referred to in Clause (6) of Article 243-D of the Constitution in the prescribed manner; [and shall be allotted by rotation to different Wards thereof.] [(b-2) As nearly as may be, 4[one-half] of the total number of Seats reserved under Clause (b-1) shall be reserved for women belonging to the Backward Class of Citizens.]

(c) As nearly as may be, but not less than 4[one-half] (including the number of Seats reserved for women belonging to the Scheduled Castes. 2C[the Scheduled Tribes and the Backward Class of Citizens]) of the total number of Seats to be filled by direct election in every Grama Panchayat shall be reserved for women and such seats shall be allotted by rotation to different Wards in a Grama.]

// 14 //

[(4) The procedure regarding reservation of seats for the purposes of Sub-Section (3) shall be as follows :

(a) The Wards in which the density of Population of the Scheduled Castes and the Scheduled Tribes is higher in the Grama shall be reserved by the Collector for the Scheduled Castes and the Scheduled Tribes, respectively and shall rotate in the descending order [at every General Election] [and in case of Backward Class of Citizens such reservation and rotation shall be in the prescribed manner];

(b) The Wards shall be serially numbered in a list in the prescribed manner and the Collector shall reserve the required number of Wards in the Grama for women in the following manner, namely :

(i) in computing [one-half] of the total number of Wards, the Wards reserved for women belonging to the Scheduled Castes, [the Scheduled Tribes and the Backward Class of Citizens] and the Scheduled Tribes shall be taken into account;

(ii) reservation of Wards for women belonging to the Scheduled Castes shall be made at the first instance [then for the Scheduled Tribes and thereafter for the Backward Class of Citizens];

(iii) out of the Wards left in the list for Candidates other than the Scheduled Castes, [the Scheduled Tribes and the Backward Class of Citizens], the ward which appears first and, thereafter, [every Second ward] shall be reserved for women, until the required quota is completed;

(iv) as nearly as may be, but not less than [one-half] of the Wards reserved for the members of the Scheduled Castes and the Scheduled Tribes shall be reserved for women belonging to the Scheduled Castes and the Scheduled Tribes in the manner hereinbefore provided; and

(v) the Wards not covered in a General Election for reservation for Women shall be covered in the subsequent General Election of the Grama Panchayat in the same manner as hereinbefore provided.

(c) The Collector shall, by order, after previous Publication in the prescribed manner inviting objections and suggestions from all persons interested within the prescribed period, and after considering all such objections and suggestions, publish a statement, showing the division of the Grama into Wards and the Seats to be reserved therein, in his Office notice board, which shall be final.]

// 15 //

(5) Notwithstanding anything to the contrary in this Section-

(a) the Offices of Sarpanchas in Grama Panchayats shall be reserved for the Scheduled Castes and the Scheduled Tribes and the number of offices so reserved for the Scheduled Castes and the Scheduled Tribes shall bear, as nearly as may be, the same proportion to the total number of such Offices as the population of the Scheduled Castes and the Scheduled Tribes respectively in the State bears to the total population of the State; and [(b) as nearly as may be, but not less than 2[one-half] of the total number of Offices of Sarpanches reserved under Clause (a) shall be reserved for Women belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes;

(c) as nearly as may be, but not less than, twenty-seven per centum of the Offices of Sarpanches in Grama Panchayats shall also be reserved in favour of Backward Class of Citizens as referred to in Clause (6) of Article 243-D of the Constitution and shall be allotted by rotation to different Gramas;

(d) as nearly as may be, but not less than, [one-half] of the total number of Offices of Sarpanches reserved under Clause (c) shall be reserved for Women belonging to the Backward Class of Citizens; and

(e) as nearly as may be, but not less than, 2[one-half] (including the number of Offices reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Class of Citizens) of the total number of Offices of Sarpanches in Grama Panchayats shall be reserved for Women.] [(6) For the purpose of reservation of Offices of Sarpanchas in Grama Panchayats and subject to the provisions of Sub-Section (5)-

(a) the Grama Panchayats in relation to Gramas in which the density of Population of the Scheduled Castes and the Scheduled Tribes is higher in the Block shall be reserved by the Collector for the Scheduled Castes and the Scheduled Tribes respectively and shall rotate in the descending order 2[at every two term of General Election]; and

(b) after arranging the names of the Gramas within a Block in Oriya alphabetical order, as nearly as may be, but not less than [one-half] of the total number of Offices of Sarpanchas in each Block shall be reserved by the Collector for women and,

// 16 //

for such reservation, the procedure provided in Clause (b) of Sub-Section (4) shall, as far as may be, apply.] (7) The reservation of Seats under Clauses (a) and (b) of Sub-Section (3) and the reservation of Offices of Sarpanchas (other than the reservation for Women [and Backward Class of Citizens]) under Sub-Section (5) shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.

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].

14. Election of Naib-Sarpanch :- (1) As soon as may be after the Publication under Section 15 of the names of the members elected at a General Election such members shall at the first meeting of the Grama Panchayat specially convened in that behalf elect in the prescribed manner from among themselves a Naib-Sarpanch :

[* * *] [Provided [* * *] that in the case of every Grama Panchayat, the Sarpanch elected under Clause (a) of Sub- Section (1) of Section 10 or nominated under Section 13 is not a Woman, the Office of the NaibSarpanch in respect of that Grama Panchayat shall be deemed to have been reserved for Women.] (2) No election of a Naib-Sarpanch shall be made unless a majority of the members of the Grama Panchayat be present at the meeting held under Sub-Section (1).

// 17 //

(3) No election of a Naib-Sarpanch of a Grama Panchayat required to be held under Sub-Section (1) shall be deferred merely on the ground that any member thereof has been prevented by any order of a Court of competent jurisdiction from participating in such election.

(4) The members of a Grama Panchayat shall not be debarred from proceeding with the election of a Naib-Sarpanch merely by reason of there being any Causal Vacancy in the membership of the Grama Panchayat as a result of death, resignation, removal or otherwise.

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 or 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 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-76 of the Odisha Grama Panchayats Election Rules, 1965.

Rule-76 - Notwithstanding any other provision to the contrary contained in these rules, the following procedure shall be followed for conducting the election to the office of the Naib-Sarpanch.

(a) All the members other than the Sarpanch shall be eligible to stand for the office of the Naib-Sarpanch.

(b) The Presiding Officer shall proceed to conduct the election, if a majority of the member of the Grama Panchayat are present on the date and at the time fixed for the purpose.

If a majority of the members are not present, no election shall be made and a fresh notice shall be issued in accordance with the foregoing rules fixing another date. In case of failure of election for the second time, the Presiding Officer shall report the result to the Election Officer who shall thereupon move the Sub-Collector for nomination of a Naib-Sarpanch in pursuance of the provisions of Section 13. On the nomination of Naib- Sarpanch by the Sub-Collector, the Election Officer shall publish the name of the person so nominated in the noticeboard of the Block Office as required under Section 15.

// 18 //

(c) If a majority of the members are present on the date fixed for the first or second meeting as the case may be, the Presiding Officer shall call upon the members to elect a Naib- Sarpanch from among themselves and allow time for one hour to receive nomination in Form No. 4.

(d) Every nomination paper shall be signed by two members as proposer and seconder and the candidate should sign a declaration on it expressing his willingness to stand for election. Every nomination paper shall be presented by the candidate himself or his proposer or seconder to the Presiding Officer at the meeting.

(e) After expiry of the time allotted for receiving nomination papers, the Presiding Officer shall proceed to scrutinise the nomination papers. Scrutiny shall be made only with a view to check if nomination is duly proposed and seconded and also accepted by the candidate. It shall be open to the Presiding Officer to get omissions rectified then and there. No objections on any other ground whatsoever shall been entertained in respect of nominations.

(f) If only a single candidate is nominated, he shall be declared elected forthwith.

(g) In case no nomination is filed within the time allowed, the Presiding Officer shall allow one more hour for filing nominations and this shall be treated as an election for the second time. If no nomination is filed on the second occasion also, the Presiding Officer shall report the result to the Election Officer who shall thereupon move the Sub-Collector for nomination of the Naib-Sarpanch.

(h) In the event of there being a contest, the Presiding Officer shall announce the names of the contesting candidates and shall proceed to hold the poll then and there."

8. Section-10 of the Act deals with constitution of Gram Panchayat.

Section-10(b) deals with election of a Member from each of the Wards by

persons on the electoral roll for the Ward from amongst themselves and

Section 10(b) speaks a Member to be elected by the persons referred to in

Sub-Section (1) of Section 4 from amongst themselves, who shall be

// 19 //

Sarapanch. Section 10(2) says, there shall be a Naib Sarapanch in respect

of every Gram Panchayat to be elected in accordance with the provisions

of Section 14 of the Act. Section 4(a) of the Act deals with incorporation

of Gram Sasan, which speaks for every Gram, there shall be a Gram

Sasan, which shall be composed of all persons registered by virtue of the

Representation of the People Act, 1950 in so much of the electoral roll for

any Assembly Constituency for the time being in force as relates to the

Gram of the roll shall be deemed to be the electoral roll in respect of the

Gram. Undisputedly, Members in the Electoral roll meant for State

Assembly of particular Gram shall be the Members of the Gram for the

purpose of election of Gram Panchayat, thus making a clear distinction in

between the Member and the Ward Member. First one which comes from

Electoral roll meant for Assembly of a Gram and the second one comes

by way of election of the Ward involved. Provision at Section 10(1) of

the Act makes it clear that Sarapanch of a Panchayat is to be elected by

the Members. So far as Naib Sarapanch, a Naib Sarapanch gets elected in

terms of Section 14 of the Act, which speaks- as soon as may be after the

publication under Section 15 of the names of the Members (means Ward

Members) elected at a general election, such Members shall at the first

meeting of the Gram Panchayat specially convened on that behalf elect

from amongst themselves a Naib Sarapanch. Thus undisputedly, a Gram

// 20 //

Panchayat consisting of Members of each Gram as voters of a Ward

being electing, there use to be fixed numbers of Ward Members, a

Sarapanch being elected by Members of Gram and a Naib Sarapanch

shall be from amongst the Ward Members taking the Members of Gram

Panchayat to Ward Members + Sarapanch. Section 14 clarifies the

election of Naib Sarapanch shall be held at a general election of such

Member dependent on a final publication through Section 15 of the Act

from amongst themselves. This Court here observes, when Section 14

indicates election of Naib Sarapanch requires to be taking place in the

first meeting of Panchayat as soon as may be after publication under

Section 15 of the names of Members elected at a general meeting of such

Members where as publication under Section 15 included names of

Sarapanch, Naib Sarapanch or any other Member of the Gram Panchayat.

There is definite confusion in bringing a publication under Section 15 of

the Act even including name of Naib Sarapanch and looking to the

provision at Section 14, election of Naib Sarapanch appears to be

undertaken as the vote on Naib Sarapanch is dependent on first

publication under Section 15 already there. This Court leaves this aspect

for the State Legislature to take care of the issue and to find if Section 15

publication also includes Naib Sarapanch when Naib Sarapanch election

is dependent on Members included in publication, vide Section 15 or

// 21 //

there should be a second publication under Section 15 of the Act no

sooner Naib Sarapanch election gets over.

In the available provision for the time being, there is clear

provision at Section 14 of the Act enabling election of Naib Sarapanch in

the inclusion of Members and Sarapanch already published under the

provision of Section 15 of the Act and not only in the first meeting of the

Panchayat after being elected but such meeting can also be convened

even in absence of Member on account of casual vacancy as a result of

death, resignation, removal or otherwise. This provision takes care of

election of Ward Members, vide W.P.(C) Nos.15170/2022, 16825/2022

& 16833/2022, where admittedly, there was casual vacancy. This Court

also gives emphasis here to the provision at Section 14(2) of the Act,

which makes it clear that no election of a Naib Sarapanch shall be made

unless a majority of Members of the Gram Panchayat be present at the

meeting held under Sub-Section (1) herein. Essential requirement here is

there must be majority of the Members of the Panchayat, which means in

a meeting of attendants, there should be election of a Naib Sarapanch by

the majority of Members. Nowhere it is prescribed all Members must be

attending such meeting. Factual background involving all these three

cases appearing to be so far W.P.(C) No.15170/2022 undisputedly the

Gram Panchayat having nineteen Ward Members + a Sarapanch making

// 22 //

total strength to twenty. Meeting invited all Members, the meeting

attended by ten including Sarapanch with one casual vacancy this Court

therefore finds, there was no difficulty in proceeding in conducting the

election of Naib Sarapanch. As per provisions at Section 14(2) of the Act

needs no election of Naib Sarapanch shall be made unless a majority of

Members present at the meeting under Section 14(1) of the Act. This

Court finds, there is no dispute in the Bar of presence of ten Members

including Sarapanch on the fateful date out of all total nineteen Members

including Sarapanch already elected, thus there was no possibility getting

into scope of nomination. Similarly in W.P.(C) No.16825/2022, out of

total body of eleven Ward Members and a Sarapanch with Ward No.8

remaining vacant, there was presence of six including Sarapanch in the

availability of whole eleven Members. In W.P.(C) No.16833/2022 out of

total house of 13 + Sarapanch, twelve elected Members and elected

Sarapanch making the availability to thirteen and seven Members being

present in the meeting, there was no possibility of getting into nomination

here also.

9. Now coming to deal with Rule 76 of the Rules, 1965, the Rule as

taken note in Paragraph-7 mandates all Members except Sarpanch can

stand for the post of Naib Sarapanch. The Presiding Officer shall proceed

to conduct election, if a majority of Members of the Gram Panchayat are

// 23 //

present on the date and at the time fixed for the purpose with further

specifically mandating that in case of failure of election for the second

time, the Presiding Officer reporting the result to the Election Officer,

who shall thereupon move the Sub-Collector for nomination of a Naib

Sarapanch on application of provision at Section 13 of the Act and

whereafter a Notification under Section 15 of the Act shall be brought.

Under Rule 76(1), it is even made clear that if a majority of Members are

present on the date fixed for first or second meeting, the Presiding Officer

shall call upon the Members means Members present to elect a Naib

Sarapanch from amongst themselves and allow time for one hour to

receive nominations in Form No.4. The election of the Naib Sarapanch

shall be completed following other requirements therein through Rules-

76(d), (e), (f), (g) & (h). In the case at hand, firstly for presence of

majority of Members, there should have been commencement of

proceeding through Rule-76(c) and for there is no second attempt for such

election taking place and failed, in no circumstance, scope of nomination

comes in.

10. Considering the rival contentions of the Parties, this Court finds,

for the clear material filed in W.P.(C) No.15170/2022 at Pages-26 & 27,

Pages-20 & 21 of W.P.(C) No.16825/2022 and Pages-11 & 12 of W.P.(C)

No.16833/2022, absence of the nominated Ward Members is clearly

// 24 //

visible. For the legal provision through Section 14 of the Act upon

Sarapanch election being over and followed with publication of election

of Sarapanch, Section 15 of the Act indicates names of Members elected

in General Election; the provision clearly shows that there should be

undertaking of exercise of electing the Naib Sarapanch from amongst the

Ward Members. It is obvious, on a meeting being called for election of

Naib Sarapanch, the Notification under Section 15 of the Act will bear

only the elected Members and Saranapch and this strength will be

ultimately showing the voters available for the purpose of Naib

Sarapanch, consequently determining the Quorum and majority

automatically. Since non-availability of Ward Members cannot be taken

into account, there is knowingly no inclusion of such vacant Member for

the purpose of majority and State cannot adopt a short circuit method in

an action de horse the statutory provision to incorporate such necessity by

way of executive instruction. In the circumstance, majority of the

Members attending such meeting should be the voice of the elected

Panchayat existing on the relevant date. It is here observed, in spite of

presence of the majority of Members, as herein, observed, in W.P.(C)

No.15170/2022, ten Members including Sarapanch out of nineteen of

total Members available in W.P.(C) No.16825/2022, even though 11+1

all total but one since falls vacant, its strength available for the purpose

// 25 //

reduced to 11 including Sarapanch, six Members were present, definitely

there is crossing of majority. Similarly, in W.P.(C) No.16833/2022 even

though it appears, in a body of 13+1, as the Panchayat having total of

fourteen Members and one remaining vacant reducing the strength

available to thirteen and there is appearance of seven Members including

Sarapanch clearly showing majority of the Members available to proceed

to elect their Naib Sarapanch. This Court finds, since the situation in the

meeting in respect of all the three Panchayats cleared the stage at Section

14(2) of the Act following the provision at Rule-76(b) of the Rules, the

Presiding Officer ought to have given nod for election of Naib Sarapanch.

This Court here finds, the Election Officer instead of getting the choice of

the majority of Members present by further proceeding to get their choice

proceeded in issuing nominated candidates runs not only contrary to the

wish of the majority of Members in the elected Panchayat but also an

action in absence of any reasonable cause in deferment of the proceeding

in spite of majority of the Members available, further in derogation of the

power provided under the Act at Section 14 as well as Rule 76 of the

Rules involving election of Naib Sarapanch.

Considering the rival contentions of the Parties and as much stress

has been given by the learned State Counsel on the Notification, vide

Annexure-E/5, this Court proceeds here to consider the effect of the

// 26 //

Notification dated 7.3.2012 (Annexure-E/5) vis-à-vis the provisions in the

statute to find the Notification issued and referred if in terms of the

provision or in contravention of the provision taken note herein above.

This Court here taking into consideration the provisions at Section 15 of

the Act finds, this provision enables to bring out a publication of result of

election of persons elected or nominated as Sarapanch and this

publication has a bigger role to play on conducting election of Naib

Sarapanch under Section 14 of the Act, the only meaning comes there is

the participants in such meeting as the Members as per Notification under

Section 15 and Quorum and majority automatically follows. Thus issuing

circulars of instruction also to include the vacant position also at this

stage contrary to the statutory position both at Sections-14 & 15 of the

Act and such instruction since remains contrary to the above provisions

becomes redundant and unworkable. This Court thus rejects the State

Counsel's stand involving the instruction Memo, vide Annexure-E/4 and

E/5.

11. In the circumstance, this Court finds, the impugned orders dated

24.5.2022 (Annexure-6), 24.6.2022 (Annexure-4) and 2.7.2022

(Annexure-3) involving W.P.(C) Nos.15170/2022, W.P.(C)

No.16825/2022 & W.P.(C) No.16833/2022 respectively are not

sustainable in the eye of law.

// 27 //

12. In the circumstance and for the reasoning herein above, this Court

interfering with the aforesaid impugned orders at Annexure-6, 4 & 3 in

W.P.(C) Nos.15170/2022, W.P.(C) No.16825/2022 & W.P.(C)

No.16833/2022 respectively sets aside the same and directs the Election

Officer concerned to re-commence the meeting from the stage of

presence of the Ward Members on 11.3.2022 in the so called first meeting

of each of the above Gram Panchayat and to proceed in the matter of

election of Naib Sarapanch of the Gram Panchayat involved herein from

the stage it was left in the first meeting of the Panchayat and to re-

commence the proceeding strictly in terms of Rule-76(1)(c) of the Rules,

dependent on the proceeding outcome to bring out a Notification

indicating the election of particular Members as Naib Sarapanch, as

required under Section 15 of the Act. The entire work should be

completed within a period of fifteen days from the date of this judgment.

13. The Writ Petitions succeed. No cost.

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

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 3rd November, 2022/MKR, A.R.-cum-Sr.Secy.