05 October 2004
Supreme Court
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RUPADHAR PUJARI Vs GANGADHAR BHATRA

Bench: CJI R.C. LAHOTI,G.P. MATHUR,P.P. NAOLEKAR
Case number: C.A. No.-006507-006507 / 2004
Diary number: 6008 / 2004


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CASE NO.: Appeal (civil)  6507 of 2004

PETITIONER: Rupadhar Pujari

RESPONDENT: Gangadhar Bhatra

DATE OF JUDGMENT: 05/10/2004

BENCH: CJI R.C. Lahoti, G.P. Mathur & P.P. Naolekar

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (C) No.6032/2004]

R.C. Lahoti, CJI

Leave granted.

Election to the office of Sarpanch, Pondosguda Gram  Panchayat, Orissa was held in the month of February 2002 under  the provisions of The Orissa Grama Panchayats Act 1964  (hereinafter ’the Act’, for short).  There were eight candidates  out of whom six withdrew from the contest leaving only the  petitioner and the respondent in the election fray. The polling  took place on 21.2.2002.  On 28.2.2002, the respondent was  declared elected.

The respondent’s election was put in issue by the appellant  by filing an election petition under Sections 30/31 of the Act in  the Court of Munsif having jurisdiction to try the petition.  The  relief clause in the petition is relevant as the controversy centres  around it and hence is reproduced hereunder:- "The Petitioner, therefore, prays the  Hon’ble Court to be pleased to declare that the  election of opposite party is invalid and declare  the Petitioner as the only duly nominated  candidate for the office of Sarpanch  Pondosoguda in 2002 Gram Panchayat  Election, in alternate declare a casual vacancy  to have been created in the office of Sarpanch  Pondosoguda GP and direct the Collector  Koraput / such concerned authority to take  proceeding to fill up the vacancy, award, the  cost of the case and give such further  relief/relief which the court deem fit and  proper under the law in the interest of justice."

(emphasis supplied)

The learned Munsif found that the respondent was  disqualified from contesting the election as he had more than  two children on the date of his nomination, a disqualification  within the meaning of clause (v) of sub-Section (1) of Section 25  of the Act.  In view of that finding, the learned Munsif allowed  the election petition, set aside the respondent’s election and  further declared that "Rupadhar Pujari being the single candidate  has been duly elected to the post of Sarpanch of Pondosguda

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Gram Panchayat".   

The respondent preferred the writ petition in the High  Court.  The High Court has upheld the finding of the learned  Munsif that the respondent was disqualified from being elected.   However, the High Court has further held that in the relief clause  of the election petition filed by the appellant he had not sought  for any relief to declare him elected.  Allowing the writ petition,  the High Court, while upholding the setting aside of the election  of the respondent, substituted the consequential direction in  place of the one given by the learned Munsif and directed that it  would be open to the authorities to proceed in accordance with  law, i.e. by holding a re-election.  Aggrieved by the judgment of  the High Court, the appellant has filed this appeal by special  leave.

Sections 34, 40 and sub-Sections (1) and (2) of Section 38  of the Act, which are relevant for our purpose, provide as  under:- "34. Relief that may be claimed by  the petitioner ___ A petitioner, may, in  addition to claiming a declaration that the  election of all or any of the returned candidates  is void claim a further declaration that he  himself or any other candidate has been duly  elected.

40.  Grounds for which a candidate  other than the returned candidate may be  declared to have been elected___ If any  person who has lodged a petition, has in  addition to calling in question the election of  the returned candidate, claimed a declaration  that he himself or any other candidate has  been duly elected and the Munsif is of opinion

(a)     that in fact the petitioner or such  other candidate received a majority of the valid  votes; or

(b)     that but for the votes obtained by  the returned candidate by a corrupt practice  the petitioner or such other candidate would  have obtained a majority of the valid votes;

38.  Decision of Munsif___ (1) If the  Munsif after making such enquiry, as he deems  necessary, finds in respect of any person,  whose election is called in question by a  petition that his election was valid, he shall  dismiss the petition as against such person and  may award costs at his discretion.  

(2)   If the Munsif finds that the election  of any person was invalid, he shall either___

(a)     declare a casual vacancy to have  been created; or

(b)     declare another candidate to have  been duly elected;

whichever course appears, in the  circumstances of the case to be more  appropriate and in either case, may award

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costs at his discretion.

xxx             xxx             xxx             xxx"

The scheme of the fore-quoted provisions reveals that in  an election petition the petitioner obviously lays challenge to the  election of the returned candidate or candidates and while doing  so he can claim a further declaration, consequent upon the  election of the returned candidate or candidates having been  annulled and avoided, that he himself or any other candidate has  been duly elected.  Sub-Section (2) of Section 38 confers  jurisdiction on the Munsif to declare a casual vacancy to have  been created in view of the election of any returned candidate  having been invalidated.  Equally, the Munsif has jurisdiction to  declare any other candidate to have been duly elected.  Which of  the two alternate powers vesting in the Munsif shall be exercised  depends on his forming an opinion as to which of the two reliefs  would be more appropriate in the circumstances of the case.   Applicability of Section 40 of the Act is attracted when looking to  the nature of the case an enquiry is called for into the validity of   votes so as to find out whether the petitioner or some other  candidate would have received the majority of the valid votes.  Depending on such finding such other candidate may be declared  to have been duly elected over and above the declaration that  the election of the returned candidate was void.

True it is that the relief clause in the election petition in  the present case is not very happily worded.  The election  petitioner would have been better advised to specifically seek a  declaration to the effect that he was elected.  However, we  cannot be oblivious of the fact that Panchayat elections are part  of Gram Swaraj system.  Most of the provisions relating to  election and election petitions in the laws governing Panchayats  are pari materia with the provisions contained in the  Representation of the People Act 1951. Yet the procedural laws  relating to Panchayat elections and election petitions cannot be  allowed to be interpreted with too much of rigidity and by  indulging in hair-splitting.  A recent decision by a Constitution  Bench in Sardar Amarjit Singh Kalra (Dead) by Lrs. & Ors.  Vs. Pramod Gupta (Smt) (Dead) by Lrs. & Ors., (2003) 3  SCC 272, once again reminds us to remember that laws of  procedure are meant to regulate effectively, assist and aid the  object of doing substantive and real justice.  Procedural laws  must be liberally construed to really serve as handmaid of  justice, make them workable and advance the ends of justice.   Technical objections which tend to be stumbling blocks to defeat  and deny substantial and effective justice should be strictly  viewed for being discouraged, except where the mandate of the  law inevitably necessitates it.

In the case at hand, there were only two candidates in the  election fray.  The respondent, though declared elected, was  found by the learned Munsif to have been disqualified from  contesting the election.  He was, therefore, excluded from the  contest.  Deemingly there was only one candidate left, i.e. the  appellant, and he was the only duly nominated candidate.  There  was no need to go for polling.  Once he was found to be the only  duly nominated candidate then he alone was to be declared  elected.  The constituency was not required to go to polls at all.   The declaration of the appellant as duly elected candidate is the  natural, obvious and inevitable consequence of his being the  only duly nominated candidate. Ordinary, a plaintiff or petitioner  should not be denied such relief to which he is found entitled on  the facts established, simply because the relief clause is not very

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happily worded.  The learned Munsif was, therefore, right in  declaring the appellant as the one duly  elected in exercise of the  powers conferred by sub-Section (2) of Section 38 of the Act  consequent upon the election of the respondent, i.e. the only  other candidate having been invalidated.  In substance that was  the relief which the election petitioner had sought for.  The High  Court has erred in interfering with and setting aside the well  merited relief granted by the learned Munsif to the appellant  herein.  

For the foregoing reasons, the appeal is allowed.  The  judgment of the High Court is set aside and that of the learned  Munsif is restored with costs throughout.