Banamali Rout vs Collector
2025 Latest Caselaw 4469 Ori

Orissa High Court

Banamali Rout vs Collector on 28 February, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

AFR          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.30367 of 2023

        Banamali Rout                      ....            Petitioner
                                    Mr. P.K. Rath, Senior Advocate


                                  -Versus-

        Collector, Puri and Another          .... Opposite Parties
                                              Mr. B. Nayak, AGA
                                  Mr. P. Mohanty, Senior Advocate
                                                     for O.P. No.2

                CORAM:
                JUSTICE R.K. PATTANAIK

                 DATE OF JUDGMENT:28.02.2025



      1.

Instant writ petition is filed by the petitioner challenging the impugned decision by order dated 5th September, 2023 under Annexure-1 of opposite party No.1 in connection with Election Misc. Case No.29 of 2022, whereby, on the application of opposite party No.2 in terms of Section 26 of the Odisha Grama Panchayats Act, 1964 (hereinafter referred to as „the Act‟), he was declared disqualified to hold the office of Sarpanch of the GP under Sections 25(1)(n) & (w) of the Act on the grounds inter alia that such decision is liable to be interfered with and quashed, for being legally untenable.

2. The grounds, upon which, the challenge to the impugned order under Annexure-1 are to the effect that opposite party

No.1 has no jurisdiction over the subject matter, inasmuch as, the allegations do not per se lie within the scope and ambit of Section 26 of the Act; the preliminary objection regarding jurisdiction of opposite party No.1 has not been examined and dealt with; the documents relied upon to disqualify the petitioner have not been duly proved before opposite party No.1 with the examination of witnesses; the ineligibilities as alleged by opposite party No.2 are concerning pre-nomination and pre-election disqualifications, which could not have been entertained by opposite party No.1 in exercise of power under Section 26 of the Act.

3. As pleaded on record, the petitioner and opposite party No.2 contested for the office of the Sarpanch of the GP situate under Kanas Block in the district of Puri and the same was held on 16th February, 2022. It is further pleaded that the petitioner polled more votes than opposite party No.2 with a margin of 538 and was declared elected and duly notified by the BDO, Kanas, who was the Returning Officer for the election. The petitioner‟s complaint was that opposite party No.2 as the contestant never challenged the election under Section 31 of the Act instead moved an application as per Annexure-2 before opposite party No.1 under Section 26 of the Act with the following claims, such as, the petitioner had the licenses to run fertilizer and insecticides business in the name and style of M/s Jaya Mahaveer Enterprises and it was valid till 21 st November, 2025 so was on the date of nomination paper filed; and that apart, suppressed the material facts with respect to the

properties owned by him, while filing such nomination and hence, is liable to disqualifications but it is pleaded that the licenses were surrendered on 10th January, 2022, which was prior to the filling of nomination, though, it was cancelled by orders dated 23rd March, 2022 as per Annexure-5. The further pleading is that as of the date of filing of the nomination, the petitioner had already surrendered the licenses but the formal orders of cancellation were passed in the month of March, 2022, hence, the same cannot be a ground for disqualification. As far as disqualification under Section 25(1)(w) of the Act is concerned, it is claimed that opposite party No.1 did not have the jurisdiction to deal with the same as any such action under Section 26 shall have to be in respect of the disqualifications as per sub-section (2) of Section 25 thereof and a question as to want of jurisdiction was raised at the very inception but the same was not examined. With the above facts pleaded on record, the correctness, legality and judicial propriety of the impugned order under Annexure-1 is questioned by the petitioner.

4. Opposite party No.1 filed the counter affidavit and pleaded that necessary inquiry was held and at the end, on a subjective satisfaction being arrived at with the conclusion that the petitioner is possessed of licenses and was found to be disqualified in view of Section 25(1)(n) of the Act. As further pleaded, such inquiry revealed that the petitioner did not furnish the correct details of the properties owned by him at the time of nomination, which is in violation of Section 25(1)(w)

of the Act, which, furthermore, as per sub-section (5) thereof invites criminal prosecution. The stand of the State is that the question of jurisdiction was taken judicial notice of by opposite party No.1 and hence, on such ground, the impugned order under Annexure-1 cannot be challenged by the petitioner. The pleading is that since the petitioner was found having the licenses to run the business and were valid as on the date of filing of the nomination, rightly, therefore, he was considered disqualified under the Act.

5. Opposite party No.2 filed a counter and pleaded that upon such inquiry, opposite party No.1 found the petitioner having two valid licenses, hence, correctly held that he invites disqualifications in view of Section 25(1)(n) of the Act. Referring to Rule 29 of the Odisha Grams Panchayats Election Rules, 1965 and Form No. IV, it is further pleaded that a false declaration since was made at the time of nomination regarding the contract and particulars vis-à-vis assets owned by the petitioner, the disqualification was declared, which is a just conclusion and in consonance with Section 25(1)(w) of the Act.

6. In reply and response to the counter affidavits, an additional affidavit was filed by the petitioner to the counter affidavit of opposite party No.1 reiterating the fact that the licenses were surrendered on 10th January, 2022 received in the office of the District Agriculture Officer, Sakhigopal and in so far as the documents as at Annexure-B/1 of the counter are concerned,

the same are fictitious. In support of such claim, an affidavit is filed by one Rebindra Nath Sahu by stating therein that the application dated 10th January, 2022 to surrender the licenses was in the handwriting of the petitioner and signed by him and it was submitted in the concerned office received by the then District Agriculture Officer, Sakhigopal.

7. Heard Mr. Rath, learned Senior Advocate for the petitioner, Mr. Nayak, learned AGA for the State and Mr. Mohanty, learned Senior Advocate for opposite party No.2.

8. Referring to Annexure-4, Mr. Rath, learned Senior Advocate for the petitioner submits that the application to surrender the licenses is dated 10th January, 2022 and was duly received by the District Agriculture Officer, Sakhigopal prior to the date of nomination i.e. 18th January, 2022. It is further submitted that the petitioner filed W.P.(C) No. 10202 of 2023 challenging order dated 8th February, 2023 in the self-same proceeding and it was set aside with a direction to supply a copy of the enquiry report used against him and upon receiving objection to the same, to freshly consider the disqualification, as alleged by opposite party No.2, with an order dated 24th April, 2023 vide Annexure-12. It is contended that objection dated 24 th April, 2023 as at Annexure-18 was filed to the report of the DPO and opposite party No.1 instead of considering the question of jurisdiction vis-à-vis disqualification under Section 25(1)(w) of the Act passed the impugned order under Annexure-1. The contention of Mr. Rath, learned Senior Advocate is that such a

ground for having furnished an affidavit containing incorrect particulars of assets as a ground of disqualification is beyond the scope and jurisdiction of opposite party No.1 as it does not find place in Section 25(2) thereof. It is also contended that the licenses were surrendered and it had already taken place by the time of filing of nomination paper. Nevertheless, the same cannot be treated as a disqualification as per Section 25(1)(n) of the Act, inasmuch as, the petitioner has had no subsisting contract but a license simplicitor. In support of such contention, Mr. Rath, learned Senior Advocate refers to the following decisions, such as, State of Orissa Vrs. Dhaniram Luhar (2004) 5 SCC 568; Chairman, Life Insurance Corporation of India & others Vrs. A. Masilamani (2013) 6 SCC 530; Ranjeet Singh Vrs. Harmohinder Singh Pradhan (1999) 4 SCC 517; Goreti Xess Vrs. Jyoti Xaxa and another 2016 SCC OnLine Ori 1042; Brundaban Nayak Vrs.

Election Commission of India & another (1965) 3 SCR 53; Election Commission, India Vrs. Saka Venkata Rao AIR 1953 SC 210; and finally, Jagadeep Pratap Deo Vrs. Hon'ble Governor of Odisha & others decided in W.P.(C) No.17716 of 2021 and disposed of on 15th March, 2023. With the submissions, as above, Mr. Rath, learned Senior Advocate for the petitioner would contend that the impugned order under Annexure-1 shall have to be set at naught.

9. Mr. Mohanty, learned Senior Advocate for opposite party No.2, on the other hand, justifies the decision of opposite party No.1 and disqualification of the petitioner since the licenses

were alive as on the date of nomination filed and were cancelled thereafter in the month of March, 2022. It is alleged by Mr. Mohanty, learned Senior Advocate that the application for surrender of the licenses by the petitioner as at Annexure-4 is a tampered document, prima facie proved, when it is compared to Annexure-D/2. It is submitted that the order of cancellation is dated 23rd March, 2022 and the application to surrender the licenses was received by the authority concerned on 21st March, 2022 but deliberately the same was antedated. The details of the information collected under the R.T.I. Act, as according to Mr. Mohanty, learned Senior Advocate, revealed so disclosing the fact that application was received on 21 st March, 2022 and not on 10th January, 2022 as claimed by the petitioner and the licenses were cancelled online on 23rd March, 2023. The application as at Annexure D/2, if compared with Annexure-4 and with such comparison, Mr. Mohanty, learned Senior Advocate would claim that the application, even though dated 10th January, 2022, has been antedated and the manipulation is clearly evident on a bare look at the endorsement of the concerned Authority, who received it, as appearing at the top left corner of the same. It is alleged by Mr. Mohanty, learned Senior Advocate that a fraud has been perpetuated with respect to the application having been antedated to show that it was received on 10th January, 2022 itself. The fact remains, the receipt of the same is duly proved as per Annexure D/2 i.e. on 23rd March, 2022 after filing of the nomination and therefore, it is contended that the petitioner had

a subsisting contract as on the date of nomination, hence, he invited disqualification as per Section 25(1)(n) of the Act. As regards, the other disqualification, Mr. Mohanty, learned Senior Advocate would submit that to consider jurisdiction of opposite party No.1, Section 26 of the Act and provisions contained therein shall have to be read conjointly. The submission is that opposite party No.1 did not commit any wrong or illegality in entertaining such a ground in terms of Section 25(1)(w) of the Act and hence, he had the jurisdiction and such a question was duly taken cognizance of at the time of hearing and passing of the impugned order i.e. Annexure-1.

10. According to Section 25(1)(n) of the Act, a member of the Grama Panchayat shall be disqualified for being elected or nominated either as a member or Sarpanch, if he is interested in a subsisting contract made with or in any work being done for the Grama Panchayat or the Samiti or the Government except as a shareholder other than a Director in an incorporated company or as a member of the Co-operative Society. As far as, Section 25(1)(w) of the Act is concerned, the same was introduced by way of an amendment of the Act as a means of disqualification having not furnished an affidavit containing correct particulars relating to the person‟s criminal antecedents, assets and liabilities and educational qualification at the time of filing of nomination followed by sub-section (5) thereto inviting a criminal action and imprisonment, for any such false information divulged or concealed. The petitioner is alleged of

having a contract and also guilty of suppression of material facts vis-à-vis assets owned by him.

11. Mr. Rath, learned Senior Advocate refers to Dhaniram Luhar (supra) to claim that the impugned order under Annexure-1 does not deal with the question of jurisdiction vis- à-vis disqualification under Section 25(1)(w) of the Act, hence, it is not sustainable in law. It is contended that proper reasons since have not been assigned by opposite party No.1, while dealing with disqualification of the petitioner, the impugned decision under Annexure-1 is bad in law referring to the principle that reasons introduce clarity in an order, which is considered to be the heartbeat of every conclusion and without the same, it becomes lifeless as held in the decision (supra). The decision in A. Masilamani (supra) is also referred to claiming that opposite party No.1 did not really consider the fact that the circumstances of the case required a detailed scrutiny. As far as the impugned order under Annexure-1 is concerned, on a proper reading of the same, it is made to suggest that the minimum requirement to disqualify a member of the Grama Panchayat has been considered and adverted to upon receiving the report and hence, with due respect, the Court has to hold that such disqualification alleged against the petitioner has been considered, examined and followed by a decision which cannot be branded as without reasons. In the case of Ranjeet Singh (supra), the Apex Court was dealing with disqualification under the Representation of the People Act, 1951 and therein, the candidate was having a subsisting

contract for sale of liquor with the State Government as on the date of the filing of nomination paper and upon scrutiny of such nomination held that such contract would not fall within the expression "for supply of goods to or for the execution of any works undertaken by the Government" and hence, Section 9-A thereof is not attracted. As to Section 25(1)(n) of the Act, such is not the condition like Section 9-A and disqualification is attached to a member of the Grama Panchayat, if he has the subsisting contract. In the aforesaid case, the contract was for sale of liquor and since, it did not fit into expression and the condition specified in Section 9-A of the Representation of the People Act, 1951, the Apex Court, hence, with a purposive interpretation concluded that any such disqualification is not invited. In a case, while dealing with a question vis-à-vis maintainability of election dispute and framing a preliminary issue in terms of Order XIV Rule 2 CPC, this Court in Goreti Xess (supra) referring to Section 11 of the Act held that the provision does not reveal anywhere the person to be disqualified for being a member of Grama Panchayat for filing a false affidavit at the time of filling of nomination paper. The disqualification for false affidavit, as earlier stated, was introduced by way of an amendment to the Act in the year, 2021, whereas, the above decision is of the year, 2016 and hence, under such circumstances, Section 11 of the Act was gone through and examined to find out, whether, any such disqualification on account of furnishing a false affidavit to be available and hence, concluded that no such disqualification is

attached. In the case of Brundaban Nayak (supra), a disqualification under the provisions of the Representation of the People Act, 1951 was in question, referring to which, Mr. Rath, learned Senior Advocate for the petitioner submits that the proceeding to declare the petitioner as disqualified ought to have been under Section 31 of the Act read with Section 39 thereof. In the aforesaid decision, it is held that the disqualification incurred since was subsequent to the election and as Article 191(1) of the Constitution of India refers to a disqualification incurred later to the election held and concluded that it has to be adjudicated upon by the Election Tribunal. It has been held therein that the scheme of Article 192(1)&(2) of the Constitution of India is absolutely clear and the object is to leave the dispute to be decided by the Election Commission and further held that all allegations challenging the validity of an election of a member to be tried by the Election Tribunal constituted by the Election Commission and for the disqualifications incurred after the election with a member validly elected to be dealt with by the Election Commission, though, the decision has to be pronounced by the Governor. In the case at hand, the action is initiated under Section 26 of the Act. A proceeding under Section 26 of the Act at the instance of the Collector may be upon receiving an application under sub section(1) or suo motu and he may make an inquiry if considered to be necessary and after providing the person, whose disqualification is in question, an opportunity of being heard, to determine, whether or not, he is or has become

disqualified and to make an order in that regard, which shall be final and conclusive. The question is, whether, after the election such a proceeding can be entertained by the Collector or one has to fall back upon Section 31 of the Act. Section 26 of the Act is not concerned with either declaring the election void or granting any consequential relief to the declaration, as to who ought to have been duly elected, rather, it enables the person specified in sub-section (1) thereof to invite a decision on the question of disqualification of a member and therein, the Collector has to reach at a subjective satisfaction about any such disqualification providing an opportunity of hearing to the person to be affected thereby. In Debaki Jani Vrs. The Collector and another AIR 2014 Orissa 138, it is held and observed that the Collector is to maintain purity and sanctity in the election process to ensure that no unqualified persons hold the posts and the same also does not exclude any other person to bring to his notice regarding the disqualification incurred by any Sarpanch and Naib Sarpanch or any of the members of the Grama Panchayat and at the same time, he may exercise suo motu jurisdiction and even in collecting information and materials from various sources. In Bilash Majhi Vrs. Collector & District Magistrate, Kalahandi and another 2008 (1) OLR 230, it is held that even when, an election dispute under Section 30 of the Act is subjudice, initiation of a proceeding under Section 26 is still maintainable, since the grounds for declaring a candidate disqualified are regulated by Section 39 and Section 25(2) respectively. It has been held

therein that a proceeding under Section 26 of the Act and an action under Section 30 are equally maintainable. In such view of the matter, when the provisions are distinct and mutually exclusive and an election can be challenged either under Section 26 or 30 of the Act, to claim that election of the petitioner could not be challenged especially when the disqualification is a pre-nomination or pre-election disqualification as contended by Mr. Rath, learned Senior Advocate is unable to be accepted. In 2007 (Suppl.-I) Vol-I OLR 400, it is also held by this Court that during pendency of an election petition, the Collector can hold an inquiry on the question of disqualification and he cannot be restrained from proceeding under the Act pending decision of the Civil Court. So, therefore, the contention that the challenge to the election of the petitioner based on the disqualifications should have been by resorting to Section 31 of the Act and not by an action under Section 26 is liable to be rejected.

12. In Malaya Kumar Durga (supra), this Court held that in a proceeding under Section 26(2) of the Act, the Collector on receipt of information or suo motu is required to conduct an inquiry to prima facie satisfy himself about the veracity of the complaint. Referring to the decision of the Full Bench in Debaki Jani (supra), it has been held therein that the power of the Collector to enquire into the matter is wide enough, even while exercising suo motu jurisdiction. Regarding inquiry and information and materials to be collected by the Collector, in a proceeding under Section 26 of the Act, has been elaborately

dealt with in the aforesaid decision. In the case at hand, a report was called for from the DPO concerned and with an objection invited from the petitioner, opposite party No.1 found the complaint about the disqualifications to be correct. In view of the decisions referred to hereinabove, as an inquiry is needed to satisfy that the complaint to be genuine and acceptable and opposite party No.1 having resorted to such an exercise and even received a report with all such information regarding the licenses and the assets of the petitioner which had not been disclosed at the time of filing of nomination paper with an affidavit, it can well be said that the procedure prescribed in Section 26(2) of the Act was duly followed and complied with. In State of Punjab and others Vrs. Devans Modern Breweries Limited & others MANU/SC/0961/2003, as has been referred to by Mr. Mohanty, learned Senior Advocate for opposite party No. 2, it is contended that the petitioner had a subsisting contract as on the date of the nomination paper filed by him. Though, not in an election dispute but while considering the question in connection with levy of import fee on Beer as per the Punjab Excise Fiscal Orders, 1932, it has been discussed and held therein that issuance of liquor license constitutes a contract between the parties, namely, the licensee and the Excise Authority being the licenser. By citing the above decision, Mr. Mohanty, learned Senior Advocate for opposite party No.2 would submit that the petitioner had licenses for fertilizer and insecticides and hence, a contract and for having such an interest in a

subsisting contract was rightly considered disqualification in view of Section 25(1)(n) of the Act. In fact, license is a contract or can be said to be a kind of contract. A license is a permission to do something, that is not allowed, if the same is not granted and is basically a contract between the parties. It is, therefore, would not be incorrect to claim that license is a contract upon agreement between the parties, which outlines the rights and obligations of each party. In the case of Ranjeet Singh (supra), it was a contract for sale of liquor and not in respect of any supply of goods or execution of works undertaken by the Government, hence, considering the same with reference to Section 9-A of the Representation of the People Act, 1951, the Apex Court held that the disqualification is not attracted. But, the condition as made to appear from Section 25(1)(n) of the Act, it is in relation to an interest in a subsisting contract, either with the Grama Panchayat or the Samiti or the Government with a rider excepting a shareholder of a company or a Co-operative Society. The petitioner has had licenses to run business dealing with fertilizer and insecticides and it was with a Govt. Department and hence, can be said to be a contract in existence as on the date of filing of the nomination paper. So, considering the same and having regard to the decision of the Apex Court in Devans Modern Breweries Limited (supra), it has to be concluded that the licenses in favour of the petitioner constituted a contract and hence, had an interest in such contract in force and valid up to

2025 and therefore, invited disqualification in view of Section 25(1)(n) of the Act.

13. Admittedly, Section 25(1)(w) of the Act was inserted by an amendment as one of the disqualifications for furnishing false affidavit at the time of nomination. Section 25(2) of the Act deals with disqualification incurred as per Clauses (a) to (j), (n) to (p) and (t) to (v) of sub-section (1) thereof and does not include Clause(w). According to Mr. Mohanty, learned Senior Advocate, such a disqualification may even be considered by opposite party No.1 and for the said purpose, the provisions of Section 26 of the Act are to be read in harmony and conjointly. The contention of Mr. Rath, learned Senior Advocate for the petitioner is that opposite party No.1 has the jurisdiction under Section 26 of the Act to deal with the grounds stipulated in sub-section (2) of Section 25 thereof and not in respect of a disqualification as per Clause(w) of Section 25(1) of the Act. The Court is of the considered view that any member of a Grama Panchayat be a Sarpanch or Naib Sarpanch or a Ward Member, if he is or has become disqualified to hold the post, shall be deemed to have vacated the office forthwith. No doubt, the disqualification as per Clause(w) of Section 25(1) of the Act does not find a place in sub-section (2) thereof which could have been a ground to declare the election as void in terms of Section 39 but in any case, such a question lost its relevance, since one more disqualification is attached to the petitioner with respect to the contract in place and in such view

of the matter, the Court is of the conclusion that he could not have escaped an action under Section 26 of the Act.

14. As far as the contract to have been surrendered with an application dated 10th January, 2022 is concerned, not only the materials on record at the behest of opposite party No.2 revealed that such licenses were still in force as on the date of nomination filed, but also, it stands fortified by the claim of opposite party No.1, who referring to the counter affidavit, pleaded that the licenses had been cancelled much later. As earlier described, manipulation of the date and endorsement on Annexure-4 is alleged by Mr. Mohanty, learned Senior Advocate for opposite party No.2 referring to Annexure-D/2. It is claimed that the date i.e. 10th January, 2022 is antedated, whereas, the application to surrender the licenses was received in the month of March, 2022. In fact, the manipulation, as according to Mr. Mohanty, learned Senior Advocate, has been employed to make out a case that the licenses had already been surrendered by the date of filing of nomination. On a naked eye inspection, as further claimed, the endorsement on Annexure-4 in juxtaposition to Annexure-D/2 to the counter of opposite party No.2 reveals the fraud. Taking the judicial notice of such a claim with reference to the endorsement appearing on both the documents and having regard to the fact that opposite party No.1, after having an inquiry, claimed the licenses to be in force and even supported by evidence on record submitted from the side of opposite party No.2 under the RTI Act revealing the fact about the cancellation on 23rd March, 2022, it

has to be held that the contract was in vogue, when the nomination was filed by the petitioner and the application for its cancellation was received on 21st March, 2022 and cancelled on 23rd March, 2023. Unless and until, a license is cancelled, mere intimation to surrender the same without being accepted is not sufficient to claim that there is no disqualification attached under Section 25(1)(n) of the Act. It has to be held that there were licenses or a contract subsisting and the petitioner was having interest therein when the nomination paper was filed and hence, he was liable to disqualification. Till such time, the contract is terminated with the licenses being cancelled, it has to be held to exist till 23rd March, 2022. In such view of the matter, the Court is of the humble view that opposite party No.1 did conduct an inquiry and upon receiving materials on record, on a satisfaction reached at, declared the petitioner as disqualified with an action initiated in terms of Section 26 of the Act.

15. Hence, it is ordered.

16. In the result, the writ petition stands dismissed.

(R.K. Pattanaik) Judge Balaram