Rupadhar Pujari Vs. Gangadhar Bhatra  Insc 612 (5 October 2004)
CJI R.C. Lahoti, G.P. Mathur & P.P. Naolekar [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
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
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 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.
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 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