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Judgment
G.K. Misra, C.J.—Facts may be stated in short to appreciate the points in issue. The Election Officer (opposite party No. 1) invited nomination papers to be filed by candidates for election of Sarpanch to the Adhangagarh Grama Panchayat to be held on 30th April, 1975. Petitioner and opposite parties 2 to 4 contested the election. Opposite party No. 2, Petitioner, opposite party No. 3 and opposite party No. 4 respectively secured 1350, 1311, 371 and 142 votes. Opposite party No. 2 having secured the maximum number of votes was duly declared elected.
Petitioner''s case is that the Election Officer illegally and without, jurisdiction included the village Sankarpur in the Adhangagarh Grama. Ward No. 11 consisted of a part of village Sankarpur. Petitioner, opposite party No. 2, opposite party No. 3 and opposite party No. 4 respectively got 17, 79, 25 and 72 votes from Ward No. 11. Ward No. 12 consisted of a part of Sankarpur village and the whole village Saraikona. Petitioner, opposite party No. 2, opposite party No. 3 and opposite party No. 4 respectively got 30, 81,19 and 35 votes from Ward No. 12. The Petitioner was defeated by opposite party No. 2 only by 39 votes. Opposite party No. 2 got 62 votes more than the Petitioner only from Ward No. 11 and if the Sankarpur votes are excluded the Petitioner should, be declared to have been elected by securing majority of votes in the election from the Adhangagarh Grama. He accordingly prays that the election of opposite party No. 2 as Sarpanch of the Adhangagarh Grama Panchayat be declared void and for a direction for holding a fresh election to the office of Sarapanch of the Adhangagarh Grama Panchayat by excluding the voters of Sankarpur village.
In the counter filed by opposite parties 1 and 2 it is asserted that by a notification published under the authority of the Revenue Divisional Commissioner u/s 6(1) of the Orissa Grama Panchayat Act, 1964 (hereinafter to be referred to as the Act) on 22nd of November, 1967, Sankarpur village was included in the Adhangagarh Grama and as such the votes cast by the voters in Sankarpur village were valid.
The following questions arise for consideration:
(1) Whether the village Sankarpur falls within the ambit of Adhangagarh Grama and whether the voters of Sankarpur village were entitled to take part in the election of the Sarpanch of Adhangagarh Grama Panchayat.
(i) If not, whether the election of opposite party No. 2 as Sarpanch is to be set aside as void and a fresh election held.
(iii) Whether in view of a remedy available u/s 39 of the Act the High Court should interfere under Articles 226 and 227 of the Constitution.
The undisputed facts are that by notification No. 3764_G.P. dated 11th March, 1966 u/s 3(1) of the Act, published in the Orissa Extraordinary Gazette No. 275 of 23-3-1966 (Annexure-4) Adhangagarh Grama was constituted with nine villages. They are:
Arana
Kosala
Patuari
Kantuara
Sibapur
Saraikana
Adhanga Majurai
Adhanga Garh
Sarapur
Gopinathpur Grama was constituted with eleven villages and village Sankarpur was included in Gopinathpur Grama. By notification No. 3238-GP. dated 22nd November, 1967 (Annexure A/~) published in the Orissa Gazette of December 22, 1967 the Revenue Divisional Commissioner, Central Division, Cuttack, in exercise of the powers conferred by Sub-section (1) of Section 6 of the Act read with the notification of the Government of Orissa in the C.U. and P.R. (G.P.) Department No. 22736-1. 133/65 GP. dated 6th December, 1966 constituted village Sankarpur as a Pallisabha in the Adhangagarh Grama. It is on the basis of this notification that opposite parties 1 and 2 take the stand that Sankarpur comes within the ambit of Adhangagarh Grama.
Mr. Misra for the Petitioner contends that the notification issued by the Revenue Divisional Commissioner u/s 6() of the Act cannot override the notification issued by the State Government u/s 3(1) of the Act.
To appreciate the respective contentions, it would be appropriate to examine the relevant law on the point. Section 2(g) defines "Grama" as meaning a Grama constituted u/s 3. u/s 2(0) "Palli Sabha" means a Palli Sabha constituted u/s 6.
Section 3, (1) and (2), Section 6(1) and Section 142 may be extracted.
Constitution of Grama: (1) The State Government may for the purposes of this Act by declaration notified in the Gazette constitute any village or group of contiguous villages as a Grama and assign to such Grama a name which shall be of one of the village comprised within the Grama. Explanation. Villages intervened only by forest areas, hills, streams, rivers and such other natural barriers and lands, not forming part of any village, may be treated as contiguous villages.
(2) Whenever the State Government deem it fit so to do they may cancel any notification in respect of a Grama under Sub-section (1) or may, after the area comprised in a Grama by reducing or adding to the number of villages comprised within such Grama and by declaration notified in the Gazette constitute such altered area or areas as a Grama or Gramas, as the case may be, for the purpose of the said Sub-section.
Palli Sabha and its functions: (1) For every village within the Grama, there shall be constituted by the State Government a Palli Sabha, provided that where the area comprised within a ward constituted for the Grama u/s 8 consists of more than one village there shall be only one Palli Sabha for such ward. 142. Delegation of powers: The State Government may by notification from time to time, direct that any of their powers and functions under this Act, subject to such conditions and restrictions as they may impose, and except the powers conferred on them by Sections 3, 71, 73. 81, 100,109, 115, 116, 117, 120, 150, 151 and 152 shall be exercised or discharged by any officer or authority subordinate to the State Government."
It would thus be seen that only the State Government has got the power to constitute a Grama and it has the power to cancel or modify the constitution of the Grama by a notification issued u/s 3(2). Section 6(1) confers power on the State Government to constitute a Palli Sabha. Section 1-12 deals with the delegation of powers. The power conferred u/s 3 cannot be delegated while the power conferred u/s 6 can be delegated. Thus, the State Government delegated power to the Revenue Divisional Commissioner to constitute a Palli Sabha u/s 6(1) and this power was delegated by Annexure-A/2. There is, therefore, no substance in the stand of opposite parties 1 and 2 that the Revenue Divisional Commissioner could reconstitute the Grama by the notification (Annexure-A/2). The notification issued by the State Government which was published on 23-3.;1966 constituting Adhangagarh Grama which did not include village Sankarpur stands valid.
On the aforesaid analysis, opposite party No. 1 acted illegally in exercise of his jurisdiction in including village Sankarpur in the Adhangagarh Grama for election to the office of the Sarpanch of the Grama Panchayat. The voters of Sankarpur village were not entitled to take part in the impugned election.
As has already been indicated in the narration of facts, the Petitioner was defeated by opposite party No. 2 by 39 votes. Opposite party No. ~ secured 62 votes more than the Petitioner from Ward No. l1 alone which wholly consisted of voters from a part of Sankarpur village. Thus, if Sankarpur votes cast in Ward No. 11 are excluded the Petitioner secured 23 votes more than opposite party No. 2.
From Ward No. 12 the Petitioner got 30 votes while opposite party No. 2 got 81 votes. It is conceded by all the learned advocates that it is not possible to determine the constituents of the votes cast from Ward No. 12. III other words, it is not possible to say how many votes the Petitioner and opposite party'' No. 2 each got from Sankarpur area in Ward No. 12.
Section 39 of the Act, so far as relevant, runs thus:
Grounds for declaring election void: (1) The Munsif shall declare
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(d) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes.
(c) that there has been any non-compliance with or breach of any of the provisions of this Act or of the rules made thereunder.
(2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election.
Section 39(1)(d) and (e) in terms applies. Opposite party No. 2 was declared to be elected by reason of the improper admission of votes from Sankarpur village. Similarly, there was nun-compliance with and breach of the provisions of the Act in including Sankarpur village for the purpose of voting in the election of the Sarpanch of the Adhangagarh Grama Panchayat.
The only question for consideration is whether the aforesaid illegality and irregularity have materially affected the result of the election. As has already been pointed out, if the Sankarpur votes for Ward No. 11 are excluded the Petitioner secured 23 valid votes more than opposite party No. 2. The constituents of the votes cast in Ward No. 12 cannot be deciphered and in that Ward opposite party No. 2 has secured 81 votes while the Petitioner has got 30 votes. It may be that opposite party No. 2 got more than 23 votes from Sankarpur area in Ward No. 12. At any rate, the position cannot be exactly determined with the best of materials by looking into the tick marks given in the electoral roll including the persons who have cast votes from Sankarpur area in Ward No. 12. Thus the Illegality and irregularity have materially affected the result of the election and it must be set aside. It is also not possible to say that the Petitioner got more votes than opposite party No. 2. He cannot also be declared to have been duly elected. There would be a fresh election.
8 The only other question for consideration is whether we should interfere in exercise of our jurisdiction under Articles 226 and 227 of the Constitution when an alternative remedy is provided in Section 39 of the Act whereunder an election petition can be filed before the Munsif u/s 31. Law is now well settled that existence of even an equally efficacious statutory remedy does not oust the jurisdiction of this Court under Articles 226 and 227 of the Constitution. Ordinarily when there is an equally efficacious alternative remedy the Court is reluctant to exercise its jurisdiction under Articles 226 and 227 of the Constitution. This is an appropriate case where we decided to exercise our jurisdiction as no evidence is necessary for arriving at the conclusion which we have reached. On admitted facts and the exposition of law given by us the election is to be set aside and the Petitioner need not be caned upon to file an election petition.
In the result, the writ application succeeds. The impugned election of opposite party No. 2 as Sarpanch is set aside. Opposite party No. 1 is directed to hold a fresh election. A writ of mandamus be accordingly issued. In the circumstances, there will be no order as to costs.
P.K. Mohanti, J.
I agree.
Writ application allowed.