- (1.)THIS writ petition has been filed with a prayer to set aside the order dated 05.05.2012 passed by the Civil Judge (Junior Division), Parlakhemundi in Election Petition No.2 of 2012 rejecting the prayer of the petitioner to amend the written statement for inclusion of the counter claim to declare the election petitioner disqualified to be elected as Sarapanch.
(2.)THE fact of the case in a nutshell is that the election petitioner has contested for the post of Sarapanch, Siyali Grama Panchayat under Kasinagar block in the district of Gajapati and respondent No.1 before the Election Tribunal was also a candidate for the office of Sarapanch in the said Grama Panchayat. The election to the office of Sarapanch, Siyali Grama Panchayat was held on 13.02.2012 and respondent No.1 was declared elected having secured majority of votes. Challenging the election of respondent No.1, who is petitioner in the present writ petition, the election petitioner filed an election case seeking a declaration that the election of respondent No.1 -petitioner as Sarapanch is void and the election petitioner has been duly elected as Sarapanch, Siyali Grama Panchayat. Respondent No.1 -petitioner filed counter to Election Petition No.2 of 2012. Thereafter respondent No.1 -petitioner filed a petition under Order -VI Rule, 17, read with Section 151, CPC to amend the counter filed by her. The said petition to amend the written statement for inclusion of counter claim to declare the election petitioner disqualified to be elected as Sarapanch was rejected. Hence, the present writ petition.
(3.)MR .P.K.Mishra, learned counsel appearing for respondent No.1 - petitioner submits that the Lower Court failed to apply its judicial mind and illegally rejected the amendment petition for inclusion of the counter claim, which is very much essential for complete adjudication of the case. The prayer of the election petitioner in the election petition was two fold, i.e., (i) to declare election of the returned candidate void, and (ii) to declare election petitioner as elected Sarapanch in place of the returned candidate. By way of counter claim the petitioner wanted to bring a prayer that the election petitioner is not qualified to be declared as elected Sarapanch as she is not able to read and write Odia as required under Section 11 of the Orissa Grama Panchayat Act (hereinafter referred to as 'the Act') and hence is not entitled to hold the post of Sarapanch.
Mr.Mishra further submitted that the learned Court below failed to appreciate the very intention of the Legislature in introducing the provision for counter claim to reduce the multiplicity of the proceeding and to deliver a judgment which would be complete in all respect. Since the claim of the election petitioner is to declare her as elected Sarapanch in addition to the prayer for declaring the election of respondent No.1 -petitioner as invalid, it is very much necessary to decide whether or not the election petitioner is entitled to hold the post, in the event the election of the returned candidate is declared invalid. Learned Court below has committed serious error of law in holding that there is no provision in the Grama Panchayats Act to entertain a counter claim. Section 35 of the Act authorises the learned Civil Judge (Junior Division) to try the Election Petition as nearly as may, in accordance with the procedure laid down in the CPC. Thus, power is vested with the learned Civil Judge (Junior Division) to entertain application other than the power specifically mentioned in Section 37 of the Act. No objection was filed by the election petitioner at the time of scrutiny of nomination paper. Learned Court below is not justified to reject the petition for amendment of written statement of Respondent No.1 -Petitioner by observing that there is no provision in the Act to entertain the counter claim.