Orissa High Court
Banamali Rout vs Collector on 24 April, 2023
ORISSA HIGH COURT : C U T T A C K
W.P.(C) No.10202 of 2023
An application under Article 226 & 227 of
the Constitution of India
Banamali Rout : Petitioner
-Versus-
Collector, Puri & Anr. : Opposite Parties
For Petitioner : M/s. P.K. Rath, A. Behera,
S.K. Behera, S. Das,
B. Rath, A. Rout,
P.K. Basantia,
C. Purohit
For Opposite Party No.1 : Mr. S. Ghose,
Addl. Govt. Adv.
For Opposite Party No.2 : Mr. P.K. Mohanty,
Sr. Adv.
M/s. P. Mohanty,
P.K. Pasayat,
S.N. Dash, S.K. Sahu,
K.T. Muduli
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & Judgment:: 24.04.2023
Per Biswanath Rath, J.
1. Heard the submissions of respective parties.
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2. This Writ Petition involves a challenge to the order of the
Collector, Puri dated 8.02.2023 in a proceeding U/s.26(2) of the Odisha
Grama Panchayat Act, 1964 hereinafter in short be reflected as <the Act,
1964= being registered as Election Misc. Case No.29 of 2022.
3. Undisputed facts remain here is, the dispute involved two
complaints at the instance of the defeated candidate thereby bringing in
allegation of disqualification under both provisions at Section 25(n) as
well as (w) of the Act, 1964. This Court proceeding to the allegation of
Mr. Rath, learned counsel for Petitioner that there is exercise of power by
the Collector, Puri U/s.26 of the Act, 1964 finds, though there is no
dispute that the Collector, Puri may involve a report involving the
direction, if any, of the Collector, however, the Collector for his calling
for report for utilization of the same in the decision process failed in
appreciating the consequence to the person likely to suffer and there is no
furnishing of copy to the party likely to be affected i.e. the Petitioner the
return candidate herein and for non-supply of such copy and in absence of
giving such party an opportunity of contest to such report, it is on the
footing of legal error on the part of the Collector, Puri Mr. Rath, learned
counsel for Petitioner attempted to satisfy the illegality in the order at
Annexure-1. Taking this Court to a judgment of this Court dealing with
the very same question vide W.P.(C) No.3643 of 2023 and reading
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through the paragraph no.12 therein Mr. Rath, learned counsel for
Petitioner attempted to satisfy his such contentions. To further satisfy the
allegation that there has been no supply of copy of the report obtained in
the inquiry to the Petitioner, Mr. Rath, learned counsel for Petitioner took
this Court to the entire order sheet of the proceeding on the file of the
Collector, Puri and satisfied that in fact there has been no supply of copy
of the report and accordingly submitted that there has been violation of
natural justice involving such a serious issue thereby making the
impugned order bad in law.
4. Mr. Mohanty, learned Senior Advocate appearing on behalf of the
Election Petitioner, however, attempted to object the submission of Mr.
Rath, learned counsel for Petitioner on the premises that the Petitioner
was very much involved in the inquiry process. Mr. Mohanty, learned
Senior Advocate, therefore, urged, supply of copy or non-supply of copy
of the report to the Petitioner remains immaterial and should not affect
the ultimate outcome. In the course of hearing there is no denial to the
allegation that in fact there has been no supply of copy of report so
obtained and utilized by the Collector in the Section 26 proceeding. Mr.
Mohanty, learned Senior Advocate, however, taking this Court to the
show cause in the counter affidavit at page 8 of the brief attempted to
submit that the Opposite Party No.2 herein has already produced copy of
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the report and unless Petitioner submits the Court that there is in fact
prejudice to the Petitioner by non-supply of such copy, the Court should
restrain itself from interfering in the impugned order.
5. Considering the issue of non-supply of copy of the report and
looking to the nature of proceeding, this Court finds, since the report
involved remains foundation to the decision process, non-supply of copy
of the report to the return candidate the Petitioner herein materially
affects the decision process. This Court also finds, undisputedly there has
been direction for submission of report on the issue involved giving such
direction to the D.P.O, Puri and B.D.O, Kanasa vide order dated
7.03.2022. Further undisputed fact remains here; there has been no supply
of copy of such report to the Petitioner, even though copy of such report
forms the foundation of decision involved herein. It is, at this stage of the
matter, taking into account the law on the above aspect already settled by
this Court in disposal of W.P.(C) No.3643 of 2023, this Court finds, the
paragraph no.12 therein reads as follows:-
<12. Now coming to the question on the entertainability
of the impugned order on the premises of non-supply of report
of the District Panchayat Officer being called for by the
Collector and as framed at question no.1, this Court observes,
once a report has been called for from the competent authority
authority required to be taken into account in the consideration
process, there should be supply of such report to the parties in
contest for their response by way of written submission or by
way of argument even, failure of which there is serious lacking
in compliance of natural justice. This question is accordingly
answered in favour of the Petitioner again.=
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6. Reading the above, this Court finds no hesitation to observe non-
supply of copy of the report materially affects the decision process. As a
consequence, this Court is inclined to interfere in the impugned order at
Annexure-1 and sets aside the same for lack of natural justice to the party
likely to be affected. However since there is requirement of fresh disposal
of Election Misc. Case No.29/2022, this Court remitting the matter to the
Collector, Puri, directs both the parties to appear before the Collector,
Puri-O.P.1 along with certified copy of this judgment on 2nd May, 2023
and take the next date of hearing of the matter.
7. Let the Petitioner apply for certified copy of the report involved
herein and in such event copy of the report shall be supplied to the
learned counsel for the return candidate therein immediately. It may also
be open to the return candidate to bring his objection, if any, to such
report within a period of one week thereafter and the further proceeding
in the Election Misc. Case No.29 of 2022 giving hearing opportunity to
both be made at least within ten weeks of appearance. As an outcome of
setting aside of the impugned order and since the Petitioner has been
unseated in the meantime, his position as Sarpanch, Dochhian Gram
Panchayat be restored forthwith.
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8. Writ Petition succeeds. No cost.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 24th day of April, 2023//
Ayaskanta Jena, Senior Stenographer
