[Cites 11, Cited by 0]
Orissa High Court
Basanti Sahoo vs Ramadebi Routray & .... Opposite ... on 15 December, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.5196 of 2025
Basanti Sahoo .... Petitioner
Mr. D. Mohapatra, Senior Advocate
-Versus-
Ramadebi Routray & .... Opposite Parties
Another
Mr. P.K. Sahoo, ASC
Mr. D.P. Dhal, Sr. Advocate
for O.P.No.1
AND
W.P.(C) No.5565 of 2025
Ramadebi Rautray .... Petitioner
Mr. D.P. Dhal, Senior Advocate
-Versus-
State of Odisha & Another .... Opposite Parties
Mr. P.K. Sahoo, ASC
Mr. D. Mohapatra, Sr. Advocate
for O.P.No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 02.09.2025
DATE OF JUDGMENT: 15.12.2025
1.
Both the writ petitions are disposed of by the following
judgment, since, a common cause of action is involved.
2. W.P.(C) No.5196 of 2025: Instant writ petition is filed by
the petitioner (hence called as 'the returned candidate')
challenging the impugned judgment in Election Appeal
No.10/3 of 2024 of the learned 1st Additional District Judge,
Puri confirming the decision of the learned Civil Judge
(Senior Division), Pipili, Puri in Election Misc. Case No.01
of 2022 for having declared her as disqualified holding the
position of Chairman of Delang Panchayat Samiti and
consequently, as the Panchayat Samiti Member, Harirajpur
Gram Panchayat with opposite party No.1 (hence referred as
'the election petitioner') to have been duly elected instead as
per Section 44-J(2) read with Section 44-E of the Odisha
Panchayat Samiti Act, 1959 (hereinafter referred to as 'the
Act') and additionally directing election to be held to fill up
the post of the Member, Panchayat Samiti of the G.P. due to
creation of a casual vacancy, as a result of such
disqualification on the grounds inter alia that such decision
is clearly erroneous and against the weight of evidence and
hence, legally not tenable and therefore, liable to be
interfered with and set at naught.
3. W.P.(C) No.5565 of 2025: Whereas, the present writ
petition is at the behest of the election petitioner challenging
the judgment in Election Appeal No.10/3 of 2024 of the
learned court below to the extent setting aside the order of
the learned Civil Judge (Senior Division), Pipili, Puri in
Election Misc. Case No. 01 of 2022 declaring her as the
elected Chairman of Delang Panchayat Samiti on the ground
that the impugned decision is not sustainable in law, hence,
deserves to be set aside thereby restoring such declaration
expedient in the interest of justice.
4. The returned candidate was elected as the Chairman of
Delang Panchayat Samiti, whereafter, the election petitioner
filed Election Misc. Case No.01 of 2022 in the court of
learned Civil Judge (Senior Division), Pipili, Puri seeking a
declaration that the former is disqualified under Section 45
(v) of the Act read with 2nd proviso thereto and accordingly,
election as the Chairman of the Panchayat Samiti and
resultantly, as Member of the G.P. as illegal and void and
consequentially to declare her to be duly elected to the post
of Chairman being the sole contesting candidate. The
learned Civil Judge disposed of the election petition and
declared the returned candidate's election to be void and the
election petitioner to be the Chairman of the Panchayat
Samiti. Being aggrieved of the above decision, the returned
candidate filed Election Appeal No.10/03 of 2024 and it was
finally disposed of by the learned court below upholding the
decision on disqualification to the extent declaring such
election as void but reversed the finding and the
consequential declaration in favour of the election petitioner
to be the Chairman of the Panchayat Samiti and directing
the authority concerned to fill up the said post for having a
casual vacancy created. As a result, both the parties, filed
the writ petitions with respective reliefs.
5. The returned candidate belongs to Gada-Motari G.P.
whereas, opposite party No.1 is from Kothabada G.P. situate
under Delang Block in the district of Puri. The State
Government issued a notice on 11th January, 2022 for the
election and accordingly, the election process was
commenced and the returned candidate contested the
election for the post of Member, Harirajpur G.P. along with
other candidates and got elected. Opposite party No.1 had
filed her nomination for the seat of Member, Delang
Kothabada Panchayat and she was also elected and
thereafter, the elected members of the Panchayat Samiti
chose the returned candidate as the Chairman of Delang
Panchayat Samiti by a majority of votes. After the election
was over, opposite party No.1 filed the election petition and
it was disposed of by the learned Civil Judge declaring such
election to be invalid followed by consequential directions
issued therein. The challenge to the election of the returned
candidate is on the ground that she has more than two
children born after the cut-off date and therefore, invited
disqualification under Section 45(1)(v) of the Act and
accordingly, sought for a declaration and election of
opposite party No.1 as the Chairman of Delang Panchayat
Samiti.
6. As revealed from the record, the returned candidate had
initially filed an application under Order 7 Rule 11 CPC on
26th October, 2022 questioning the maintainability of the
proceeding referring to Section 45-B of the Act and it was
allowed by order dated 22nd February, 2023 thereby
disposing of Election Misc. Case No.01 of 2022 not being
maintainable, as against which, the election petitioner
preferred an appeal before the learned District Judge, Puri,
which was disposed of setting aside the decision of the
learned Senior Civil Judge, Pipili with the observation that
such an application under Order 7 Rule 11 CPC is not
applicable in respect of election disputes relating to the
Panchayats. In other words, the learned District Judge
allowed Election Misc. Appeal No. 01 of 2023 and quashed
the order in Election Misc. Case No. 01 of 2022 with a
conclusion that the election petition is maintainable. After
that, the proceeding was taken up for hearing of the election
petition and during that time, the election petitioner filed
W.P.(C) No.28055 of 2022 before this Court, wherein, a
direction was issued to dispose it of within the period
stipulated.
7. In the proceeding before the learned Civil Judge, the
election petitioner examined herself as P.W.1 and two
others and admitted nearly ten documents in support of the
plea that the returned candidate stands disqualified for
having a third child born to her after the cut-off date. No
evidence was received from the side of the returned
candidate. Considering the materials on record, the learned
Civil Judge declared the election of the returned candidate
as illegal and void and the election petitioner as duly elected
the Chairman of Delang Panchayat Samiti in view of
Section 44-J(2) read with Section 44-E of the Act further
declaring casual vacancy created for the post of Panchayat
Samiti Member to be filled up in accordance with law in
order to ensure proper functioning of the Panchayat Samiti.
As earlier stated, the appeal filed by the returned candidate
was partly allowed, however, setting aside the declaration in
favour of the election petitioner allowed by the learned Civil
Judge vide judgment dated 3rd February, 2025.
8. Heard Mr. Mohapatra, learned Senior Advocate
appearing for the returned candidate and Mr. Dhal, learned
Senior Advocate for the election petitioner besides Mr.
Sahoo, learned ASC for the State.
9. Mr. Mohapatra, learned Senior Advocate appearing for
the returned candidate submits that an objection was filed on
the maintainability of the election petition at the instance of
the election petitioner in view of section 45-B of the Act
with the additional plea that the allegations made therein to
be false, imaginary and vexatious and far from the truth and
also alleging absence of a cause of action to maintain the
same and being barred by limitation. It is further submitted
that the returned candidate moved the learned Civil Judge
with an application under Order 7 Rule 11 CPC challenging
the maintainability of the election petition and the same was
allowed on 2nd February, 2023 and challenged in appeal and
was reversed with a direction to dispose of the same on
merit. It is stated that on 10th November, 2023, an additional
issue on maintainability referring to Section 45-B of the Act
was framed and thereafter, the hearing was fixed to different
dates. According to Mr. Mohapatra, learned Senior
Advocate, on 20th February, 2024, the election petitioner
was examined, cross-examined and was discharged and
thereafter, on 23rd April, 2024, her husband filed affidavit
evidence as P.W.2 and at that time, she moved an
application to recall P.W.1 for cross-examination, which
was held and concluded on 17th July, 2024 and furthermore,
on 30th July, 2024, on the request of the election petitioner, a
document was called for from the custody of P.W.3,
namely, Headmaster and in the meanwhile, cross-
examination of P.W.2 was completed. It is further stated
that cross-examination of P.W.3 on behalf of the returned
candidate was deferred to 6th August, 2024 on her request
and on the said date, adjournment was rejected and such
examination was closed. It is further submitted that on 30th
August, 2024, the counsel of the returned candidate
suddenly feel sick and filed an application for adjournment
and by the time, P.W.3 was present in the court at around
5.30 P.M., he had already left but the learned Civil Judge
rejected the request for an adjournment and closed the
evidence of the election petitioner and thereafter, the case
was posted to 2nd September, 2024, the date on which, an
application seeking recall of P.W.3. was moved but the
same was not entertained and was fixed to 3rd September,
2024 for argument. The submission of Mr. Mohapatra,
learned Senior Advocate is that after the case was directed
to be listed for argument on 5th September, 2024, the learned
Additional Government Pleader filed an application for
recall of the order dated 2nd September, 2024 and allowed
the Election Officer-cum-Tahasildar, Delang to adduce
evidence and interestingly, it was allowed when in spite of
repeated requests from the side of the returned candidate,
she was not allowed to cross-examine P.Ws.2 and 3 and as a
result, disallowing her to lead evidence in rebuttal and
therefore, such a treatment amounts to discrimination,
inasmuch as, when on 17th September, 2024, the Election
Officer was examined and cross-examined and ultimately,
the judgment was pronounced on 19th September, 2024. It is
contended by Mr. Mohapatra, learned Senior Advocate that
the learned Civil Judge should not have refused the request
for adjournment and as a result, it can be said that the
returned candidate was not given sufficient opportunity to
defend the election proceeding and while claiming so, a
decision of the Apex Court in State Bank of India Vrs.
Chandra Govindji (2000) 8 SCC 532 has been placed
reliance on. It is further contended that the returned
candidate was not allowed to adduce additional evidence,
when such an application was moved and was kept pending
to be considered at the time of final hearing and disposal of
the appeal by an order dated 16th January, 2025 but
ultimately, even such a request was dishonoured and
therefore, she was deprived of an opportunity of equal
treatment to lead evidence. The submission is that the
returned candidate should have been allowed to adduce
evidence in order to defend the charge levelled against her
and therefore, when there has been a request for additional
evidence, it would be proper, if this Court allow the same
with a direction for consideration of such evidence and
disposal of the appeal within a stipulated period, which is
absolutely necessary in the ends of justice. The contention is
that the learned court below could have remanded the matter
in terms of Order 41 Rules 27 and 28 for receiving such
additional evidence and the same is permissible under law
and advancing such an argument, a case law in Smt. Sabitri
Bagh Vs. Smt. Bhaji Bagh 2011 (Supplementary) 1 OLR
936 is referred to with the claim that it would not be wrong
to allege that proper and reasonable opportunity was
deprived of by both the learned courts below, which has
caused serious prejudice to the returned candidate. It is
claimed that had there been an opportunity to adduce
evidence and even additional evidence before the learned
court below, the returned candidate would have proved the
fact that her husband, namely, Bidyadhar Sahoo was earlier
married to her sister, namely, Basants Manjari and out of
their wedlock, twin children were born duly recorded in the
original Birth Register and as referred to in the information
collected under the RTI Act from Delang CHC and the
further fact that the said Basanta Manjari died, whereafter,
she married with the other son born from that marriage,
hence, the real truth has not been revealed and therefore, the
allegations made in the election petition are outrightly false.
10. Referring to a decision of the Apex Court in Rabindra
Kumar Nayak Vrs. Collector, Mayurbhanj, Orissa and
others (1999) 2 SCC 627, it has been further contended by
Mr. Mohapatra, learned Senior Advocate that the action at
the behest of the election petitioner is not maintainable in
view of Section 45(1) of the Act which deals with eligibility
and qualification to become a Member and for the elected
members including Chairman, Vice-Chairman eligibility is
determined by virtue of sub-section(2) thereof. The
submission is that the election petitioner as a member
elected from another constituency cannot maintain the
action challenging the election of other members from
different constituencies as specified Section 44-C of the Act,
as in other words, a candidate, who contested election with
the returned candidate can only file the election petition. In
that connection, the above decision has been cited and
referred to by Mr. Mohapatra, learned Senior Advocate with
the submission that the election petition can be maintained
by a candidate in fray with the elected member under
Section 44-A of the Act. It is also contended that there is
distinction between the words, such as, 'candidate' and
'member' and while stating so, Rules 2(c) of the Odisha
Panchayat Samiti (Conduct of Inquiry by the District Judge
into the Allegations, Doubts about Disqualification of
Members) Rules, 1973 is referred. The further contention is
that the decisions cited from the other side are
distinguishable. It is finally contended that apart from
failing to consider the question on maintainability of the
election petition, the learned courts below neither allowed
the returned candidate to lead evidence much less additional
evidence nor properly analyzed the scope of Section 45-B
with reference Section 44-A of the Act and hence, the
impugned judgments at Annexures-4 and 5 deserve to be
quashed being not legally tenable.
11. On the contrary, Mr. Dhal, learned Senior Advocate
appearing for the election petitioner would submit that the
returned candidate has been rightly declared as disqualified
for having a 3rd child born to her after the statutory cut-off
date in terms of Section 45(1)(v) of the Act. The further
submission is that the learned courts below did not err in
declaring the disqualification even though the judgment of
the court of first instance was modified directing the
creation of a casual vacancy for the post of Chairman,
Delanga Panchayat Samiti. In so far as the maintainability
of the action under Section 44-A of the Act is concerned,
objection to the same by the petitioner was rightly rejected
by the learned courts below a further claimed. It is
submitted that notwithstanding Section 45-B of the Act, a
proceeding under Section 44-A of the Act challenging the
election is maintainable. The contention of Mr. Dhal,
learned Senior Advocate is that an action under Section 45-
B of the Act is entertained by the learned District Judge by a
member of a Samiti, whereas, a proceeding under Section
44-A with an election petition filed may be presented by any
candidate. It is further contended that objection of the
petitioner with reference to Section 45-B of the Act to the
election petition is totally misconceived in view of the
decision of this Court in Suresh Kumar Azad Vrs. State of
Odisha & others 1993(I) OLR 563, wherein, it has been
concluded that the election of the Chairman of the Samiti
can be challenged under Section 44-A of the Act.
12. Referring to the order sheets of the proceeding before
the learned Civil Judge, it has been contended by Mr. Dhal,
learned Senior Advocate that ample opportunity was
provided to the petitioner all along and ultimately the
proceeding was disposed of declaring the election of the
petitioner as invalid under Section 45(1)(v) of the Act. It is
contended that the election for the post of Chairman was
held in the year 2022 and therein, the petitioner and opposite
party No.1 were the contestants. It is claimed that the
election petitioner had raised objection against the
candidature of the returned candidate on the ground of
having a 3rd child born to her after the cutoff date and that
she invites disqualification under Section 45(1)(v) of the
Act and after the election, the petition was filed under
Section 44-A of the Act. The contention is that an
application under Order 7 Rule 11 CPC was moved for
rejection of the election petition before the learned Civil
Judge with the plea that such petition under Section 44-A of
the Act cannot be entertained since the challenge is within
the exclusive jurisdiction of the learned District Judge under
Section 45-B thereof and the same was allowed but reversed
in Election Appeal No.1 of 2023 disposed of on 3rd August,
2023, wherein, the learned District Judge, Puri held that
such action is maintainable. Thereafter, according to Mr.
Dhal, learned Senior Advocate, the election petition filed
W.P.(C) No.28055 of 2022, wherein, a time line was fixed
for disposal of the proceeding and thereafter, the hearing
therein was commenced with witnesses examined on
different dates. It is alleged that one of the witnesses,
namely, P.W.1 was examined but cross-examination could
not be held on a single date and finally on 17th July, 2024, it
was accomplished. Similarly, it is claimed that P.W.2 was
not cross-examined by the returned candidate, as a result,
the evidence was closed. Lastly, it is alleged that P.W.3 was
examined and further examination was fixed to 30th August,
2024, however, on the said date, the counsel for the
petitioner did not cross-examine him and likewise, learned
Civil Judge rejecting the application for time discharged
him and fixed the case to 2nd September, 2024 for evidence
from the other side. Under such circumstances, it is
contended that the learned Civil Judge allowed
adjournments liberally but it was not availed of by the
returned candidate and ultimately, argument from both sides
was concluded.
13. With regard to the plea of not allowing additional
evidence in terms of Order 41 Rule 27 CPC., it is contended
that a party is not entitled to produce the same unless it
shows that such evidence could not be submitted before the
Trial Court despite exercise of due diligence. The contention
is that even though the learned court below by order dated
16th January, 2025 observed that the application for
additional evidence would be considered at the time of final
disposal of the appeal but was left out of consideration since
the returned candidate did not have any convincing
explanation as to the circumstances in which any such
evidence was sought to be adduced, which could not be
produced earlier.
14. In the first place, the question of maintainability of the
proceeding under Section 44-A of the Act is to be
considered by the Court. In Suresh Kumar Azad (supra),
the question was whether the election of the Chairman or
Vice-Chairman of the Samiti as the case may be is
maintainable under the Act and discussing the relevant
provisions, such as, Sections 44-A and 45-B (5) of the Act,
it has been concluded therein that the Chairman's election
could also be challenged under Section 44-A of the Act. It
has also been concluded therein that despite the introduction
of the amendment of the Act, 1991 and in view of Clause(n)
Section 16(1) thereof, a Chairman is to be recognized as a
member and therefore, what was stated in Section 44-B(5)
of the Act has remained unaltered to hold that such
challenge to the election would also be subject of
adjudication in a proceeding under Section 44-A, hence, it
would be open to any person aggrieved with the election of
the Chairman to challenge the same. In the considered view
of the Court irrespective of Section 45-B of the Act, any
such challenge to the election of the Chairman of the Samiti
is maintainable under Section 44-A of the Act in view of the
decision in Suresh Kumar Azad (supra). In fact, Mr.
Mohapatra, learned Senior Advocate for the returned
candidate refers to the decision of Rabindra Kumar Nayak
(supra) to contend that the action of Section 44-A cannot be
sustained in law with the submission that the Apex Court
therein made a distinction on the applicability of the
provisions of Sections 44-A and 45-B of the Act with a
detailed analysis and held that an election petition under
Section 44-A can be filed by any candidate, who need not
be a member but an application under Section 45-B may be
filed only by a member of the Samiti, who is in doubt about
having incurred disqualification. It is also contended that in
the above decision, while discussing the relevant provisions,
it was observed that there is some overlapping between the
two but the field of operation of such provisions is distinct
and different. According to Mr. Mohapatra, learned Senior
Advocate, the election petition can only be filed by the
candidate contesting the election, whereas, an elected
member can maintain an application under Section 45-B and
references was made to Rule 2(c) of the Rules, 1973 that
defines 'member' as a member of the Samiti having a right
to vote. The challenge to the election petition is on the
ground that the proceeding initiated should have been at the
behest of a candidate contesting the election and therefore,
the election to the post of Member, Panchayat Samiti cannot
be raised except by filing an application under Section 45-B
of the Act. But, the Court, considering the decision in
Suresh Kumar Azad (supra) is of the humble view that
election to the post of Chairman may be questioned with an
application under Section 44-A of the Act, even though, a
distinction is sought to be made by Mr. Mohapatra, learned
Senior Advocate. Referring to the decision in Rabindra
Kumar Nayak (supra), the Court is of the ultimate view that
the objection against the maintainability of the election
petition under Section 44-A of the Act is liable to be
rejected. In fact, this Court in Bishnu Prasad Das Vrs.
Election Officer-cum-Block Development Officer &
others 2003 SCC OnLine Ori 278 referred to the case of
Gobind Ch. Panda Vrs. Darsan Ch. Rout and others 35
(1969) CLT 1108 and also Suresh Kumar Azad (supra) to
hold that a Member of a Samiti in Section 44-A of the Act
would include the Chairman of the Panchayat Samiti and
therefore, the election of a Chairman can be challenged
under the provisions of the Act. On a further reading of
Section 44-A read with Section 44-C, it has been held
therein that an election petition may be presented
challenging the election of a Chairman of a Panchayat
Samiti by any candidate for the post of Chairman of the
Panchayat Samiti and in such an election petition, the
Chairman, whose election is questioned, is to be arrayed as
an opposite party and ultimately concluded that the election
of the Chairman of the Panchayat Samiti can be challenged
in accordance with the provisions of the Act and even by
taking into account Section 44-C, the position of law laid
down in Suresh Kumar Azad (supra) would not be altered.
Similarly, in Akshaya Mohanty Vrs. Ashok Das &
another (2010) 109 CLT 513, a question arose with a
preliminary objection raised regarding maintainability of the
election petition with regard to the election of the Chairman
of Panchayat Samiti filed under Section 44-A of the Act but
it was concluded that such an objection is not maintainable
and therein, the case of Suresh Kumar Azad (supra) was
also referred to.
15. In fact, in Rabindra Kumar Nayak (Supra), the Apex
Court held that remedy under Section 44-A is not a bar to
the maintainability of an application under Section 45-B of
the Act. In fact, the above decision is cited by Mr.
Mohapatra, learned Senior Advocate and equally by Mr.
Dhal, learned Senior Advocate and considering the case
laws discussed hereinbefore, the Court is to reiterate the
conclusion that challenge to the election of the Chairman of
a Samiti is maintainable under Section 44-A irrespective of
any such action leviable under Section 45-B of the Act.
16. As regards the plea of additional evidence though such
an application under Order 41 Rule 27 CPC was moved but
it was finally not considered by the learned court below. In
fact, Mr. Dhal, learned Senior Advocate refers to a decision
in Smt. Sabitri Bagh Vrs. Smt. Bhaji Bagh (2011) 112
CLT 295 to contend that Order 41 and the provisions
therein are not to be applicable in a case under the Act, as
held therein. The Court considering the plea of the returned
candidate for additional evidence, having regard to the fact
that the witnesses put under examination were not cross-
examined and discharged and it was a lapse on the part of
the returned candidate, the learned court below did not
commit any wrong or illegality in not considering additional
evidence at the stage of appeal. It can be said that the
proceeding when was adjourned to number of dates but still
the witnesses, namely P.Ws.2 & 3 were not cross-examined
and finally, the learned Civil Judge had to discharge them,
under such circumstances, discretion was left with the
learned court below to consider allowing additional
evidence or even a remand. From the order sheets of the
proceeding before the learned Civil Judge, it is clearly
evident that ample opportunity was provided to the returned
candidate but she failed to cross-examine P.Ws.2 & 3 and
not only that, could not succeed in leading defence evidence
and as a result, no option was left except for it to conclude
the proceeding finally. The said aspect was duly taken
judicial notice of by the learned court below and in view of
the conduct of the returned candidate considered it not to
entertain additional evidence and finally disposed of the
appeal. The Court considering the fact that the proceeding
before the learned Civil Judge supports the claim of series
of adjournments but it was not availed of leading to the
default on the part of the returned candidate failing to cross-
examine P.Ws.2 & 3 and even leading evidence in defence,
the learned court below having not considered any such plea
to reopen the hearing, there has been no illegality
committed, inasmuch as, such closure in evidence and the
decision of the learned Civil Judge upheld in appeal is
perfectly justified and suffers from no perversity.
17. Mr. Dhal, learned Senior Advocate for the election
petitioner would further submit that there has been no
specific denial on the material facts pleaded in the election
petition as required under Order 8 Rules 3 and 5. The
further submission is that the returned candidate did not file
any W.S. and instead submitted an objection under Order 7
Rule 11 CPC and such failure to deny the pleaded facts
amounts to admission by her. In that connection, the
decision of the Apex Court in Jaspal Kaur Cheema and
another Vrs. Industrial Trade Links and others (2017) 8
SCC 592 and Thangam and another Vrs. Navamani
Ammal (2024) 4 SCC 247 have been referred to. In fact, in
Jaspal Kaur Cheema (supra), it has been held by the Apex
Court that a defendant in W.S. must categorically deny or
dispute the averments made in the plaint and evasive denial
would amount to admission and referred to Section 116 of
the Evidence Act to observe that the principle of estoppel is
enumerated therein and in the context of the dispute
between a tenant and a landlord, it was concluded that in
absence of any such specific plea raised challenging the
eviction in the hands of the landlord on any such ground
denying or disputing the ownership in terms of Order 8
Rules 3 & 5 CPC or the failure to make specific denial in
that regard amounts to an admission. Similarly, in
Thangam (supra), the Apex Court with reference to Order 8
CPC and the relevant provisions related thereto held that
specific admission and denial of pleadings in plaint is
necessary meaning thereby allegations therein must be dealt
with parawise and in absence of any reply in such manner
any such general evasive denial would not be enough and
therefore, specific admission and denial of the pleadings to
be absolutely necessary.
18. In the case at hand, the pleading is to the effect that the
returned candidate is having a child born after the cut-off
date, hence, invited disqualification under Section 45(1)(v)
of the Act. No W.S. was filed by the returned candidate,
only an objection at the initial stage in terms of Order 7
Rule 11 CPC but participated in the hearing and even
proceeded to cross-examine P.W.1 but failed to do so in
respect of P.Ws.2 and 3. In absence of any such pleading
from the side of the returned candidate, no question of any
such admission or denial does arise. It may be said that there
was no defence as such to controvert the plea of the election
petitioner. It has been emphatically pleaded that the returned
candidate invites disqualification for having a 3rd child born
after the cut-off of date and as a consequence, as the
Panchayat Samiti Member of Delanga and also Chairman of
the Samiti which was to be met with a defence. But, there
has been no W.S. filed ever nor the returned candidate could
lead defence evidence. According to Mr. Mohapatra,
learned Senior Advocate for the returned candidate, there
was no opportunity to lead evidence in rebuttal as the
hearing was concluded leaving no scope for the same. Such
contention is unacceptable since it is made to appear that the
witnesses were examined from the side of the election
petitioner but a valuable right and the opportunity to cross-
examine P.Ws.2 and 3 was lost by the returned candidate
and also defaulted in not leading defence evidence, an act
which cannot be condoned.
19. Having regard to the discussion hereinabove, the Court
reaches at inescapable conclusion that despite the
proceeding being adjourned, the returned candidate
miserably failed to adduce evidence and that apart, there has
been no pleading on record denying any such allegation
attributing disqualification against her. Absence of denial or
evasive reply to the claim of the election petitioner amounts
to admission. In fact, the returned candidate in a cavalier
fashion conducted herself and as a consequence, the learned
courts below for the default in leading defence evidence and
considering the plea of the election petitioner and the
evidence received and the materials on record received,
rightly, reached at the conclusion that the returned candidate
invited disqualification under Section 45(1)(v) of the Act,
which in the considered view of the Court, should not be
tampered with and disturbed. Even the Court finds that there
has been a detailed discussion of evidence received on
disqualification and the conclusion arrived at in that regard
by the learned courts below cannot be claimed as perverse
requiring any kind of interference exercising writ
jurisdiction. Furthermore, the Court is equally not inclined
to tinker with the conclusion of the learned court below with
reference to Section 44-J(2) of the Act since any such
consequential declaration is not automatic, rather, it depends
on the circumstances considered more appropriate and
rightly held the best option available is to go for election
declaring a casual vacancy.
20. Accordingly, it is ordered.
21. In the result, the writ petitions stand dismissed.
(R.K. Pattanaik)
Judge
Balaram
