Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) No.10202 of 2023 An application under Article 226 & 227 of the Constitution of India Banamali Rout : Petitioner -Versus- Collector, Puri & Anr. : Opposite Parties For Petitioner : M/s. P.K. Rath, A. Behera, For Opposite Party No.1 For Opposite Party No.2 S.K. Behera, S. Das, B. Rath, A. Rout, P.K. Basantia, C. Purohit
Legal Reasoning
this Court in disposal of W.P.(C) No.3643 of 2023, this Court finds, the paragraph no.12 therein reads as follows:- <12. Now coming to the question on the entertainability of the impugned order on the premises of non-supply of report of the District Panchayat Officer being called for by the Collector and as framed at question no.1, this Court observes, once a report has been called for from the competent authority authority required to be taken into account in the consideration process, there should be supply of such report to the parties in contest for their response by way of written submission or by way of argument even, failure of which there is serious lacking in compliance of natural justice. This question is accordingly answered in favour of the Petitioner again.= Page 4 of 6 // 5 // 6. Reading the above, this Court finds no hesitation to observe non- supply of copy of the report materially affects the decision process. As a consequence, this Court is inclined to interfere in the impugned order at Annexure-1 and sets aside the same for lack of natural justice to the party likely to be affected. However since there is requirement of fresh disposal of Election Misc. Case No.29/2022, this Court remitting the matter to the Collector, Puri, directs both the parties to appear before the Collector, Puri-O.P.1 along with certified copy of this judgment on 2nd May, 2023 and take the next date of hearing of the matter. 7. Let the Petitioner apply for certified copy of the report involved herein and in such event copy of the report shall be supplied to the learned counsel for the return candidate therein immediately. It may also be open to the return candidate to bring his objection, if any, to such report within a period of one week thereafter and the further proceeding in the Election Misc. Case No.29 of 2022 giving hearing opportunity to both be made at least within ten weeks of appearance. As an outcome of setting aside of the impugned order and since the Petitioner has been unseated in the meantime, his position as Sarpanch, Dochhian Gram Panchayat be restored forthwith. Page 5 of 6 // 6 // 8. Writ Petition succeeds. No cost. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 24th day of April, 2023// Ayaskanta Jena, Senior Stenographer Page 6 of 6
Arguments
: Mr. S. Ghose, Addl. Govt. Adv. : Mr. P.K. Mohanty, Sr. Adv. M/s. P. Mohanty, P.K. Pasayat, S.N. Dash, S.K. Sahu, K.T. Muduli J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of hearing & Judgment:: 24.04.2023 Per Biswanath Rath, J. 1. Heard the submissions of respective parties. Page 1 of 6 // 2 // 2. This Writ Petition involves a challenge to the order of the Collector, Puri dated 8.02.2023 in a proceeding U/s.26(2) of the Odisha Grama Panchayat Act, 1964 hereinafter in short be reflected as <the Act, 1964= being registered as Election Misc. Case No.29 of 2022. 3. Undisputed facts remain here is, the dispute involved two complaints at the instance of the defeated candidate thereby bringing in allegation of disqualification under both provisions at Section 25(n) as well as (w) of the Act, 1964. This Court proceeding to the allegation of Mr. Rath, learned counsel for Petitioner that there is exercise of power by the Collector, Puri U/s.26 of the Act, 1964 finds, though there is no dispute that the Collector, Puri may involve a report involving the direction, if any, of the Collector, however, the Collector for his calling for report for utilization of the same in the decision process failed in appreciating the consequence to the person likely to suffer and there is no furnishing of copy to the party likely to be affected i.e. the Petitioner the return candidate herein and for non-supply of such copy and in absence of giving such party an opportunity of contest to such report, it is on the footing of legal error on the part of the Collector, Puri Mr. Rath, learned counsel for Petitioner attempted to satisfy the illegality in the order at Annexure-1. Taking this Court to a judgment of this Court dealing with the very same question vide W.P.(C) No.3643 of 2023 and reading Page 2 of 6 // 3 // through the paragraph no.12 therein Mr. Rath, learned counsel for Petitioner attempted to satisfy his such contentions. To further satisfy the allegation that there has been no supply of copy of the report obtained in the inquiry to the Petitioner, Mr. Rath, learned counsel for Petitioner took this Court to the entire order sheet of the proceeding on the file of the Collector, Puri and satisfied that in fact there has been no supply of copy of the report and accordingly submitted that there has been violation of natural justice involving such a serious issue thereby making the impugned order bad in law. 4. Mr. Mohanty, learned Senior Advocate appearing on behalf of the Election Petitioner, however, attempted to object the submission of Mr. Rath, learned counsel for Petitioner on the premises that the Petitioner was very much involved in the inquiry process. Mr. Mohanty, learned Senior Advocate, therefore, urged, supply of copy or non-supply of copy of the report to the Petitioner remains immaterial and should not affect the ultimate outcome. In the course of hearing there is no denial to the allegation that in fact there has been no supply of copy of report so obtained and utilized by the Collector in the Section 26 proceeding. Mr. Mohanty, learned Senior Advocate, however, taking this Court to the show cause in the counter affidavit at page 8 of the brief attempted to submit that the Opposite Party No.2 herein has already produced copy of Page 3 of 6 // 4 // the report and unless Petitioner submits the Court that there is in fact prejudice to the Petitioner by non-supply of such copy, the Court should restrain itself from interfering in the impugned order. 5. Considering the issue of non-supply of copy of the report and looking to the nature of proceeding, this Court finds, since the report involved remains foundation to the decision process, non-supply of copy of the report to the return candidate the Petitioner herein materially affects the decision process. This Court also finds, undisputedly there has been direction for submission of report on the issue involved giving such direction to the D.P.O, Puri and B.D.O, Kanasa vide order dated 7.03.2022. Further undisputed fact remains here; there has been no supply of copy of such report to the Petitioner, even though copy of such report forms the foundation of decision involved herein. It is, at this stage of the matter, taking into account the law on the above aspect already settled by