Election Tribunal can declare election petitioner elected if only two candidates contested and the returned candidate is disqualified.

Ramadebi Rautray (appellant-election petitioner) and Basanti Sahoo (respondent-returned candidate) contested elections for Panchayat Samiti Member posts in 2022 and subsequently for Chairman of the Delang Panchayat Samiti.

Basanti Sahoo was declared elected as Chairman

Ramadebi Rautray filed an election petition (Election Misc. Case No. 01 of 2022) before the Civil Judge (Senior Division), Pipili (Election Tribunal), challenging Basanti Sahoo's election on the ground of disqualification for having a third child after the cut-off date, violating Section 45(1)(v) of the Orissa Panchayat Samiti Act, 1959

Despite ample opportunities, Basanti Sahoo neither cross-examined Ramadebi Rautray's witnesses nor presented any defense evidence

The Election Tribunal allowed the petition, declaring Basanti Sahoo's election as Panchayat Samiti Member and Chairman invalid, and further declared Ramadebi Rautray elected as Chairman, directing her appointment

Basanti Sahoo appealed to the 1st Additional District Judge, Puri (Election Appellate Tribunal), which upheld her disqualification but set aside the consequential declaration of Ramadebi Rautray as Chairman, instead directing a fresh election for the post

Both parties then filed writ petitions before the High Court of Orissa at Cuttack, which dismissed both petitions and affirmed the Election Appellate Tribunal's judgment

Aggrieved, both parties filed separate special leave petitions before the Supreme Court

1. Whether the Election Tribunal had jurisdiction to entertain the election petition

2. Whether the respondent-returned candidate was denied adequate opportunity to defend herself and adduce evidence

3. Whether the Election Appellate Tribunal and the High Court erred in denying the consequential relief of appointment to the post of Chairman to the appellant-election petitioner, despite the disqualification of the returned candidate, given that only two candidates contested for the said post

The court primarily applied Sections 44-E and 44-J of the Orissa Panchayat Samiti Act, 1959 ("1959 Act")

Section 44-E permits an election petitioner to claim not only a declaration that the returned candidate's election is void, but also a declaration that the petitioner or any other candidate has been duly elected

Section 44-J(2)(b) confers jurisdiction on the Civil Judge (Election Tribunal) to declare another candidate as duly elected if the original returned candidate's election is found invalid, where such a course appears more appropriate in the circumstances

The court also implicitly relied on the principle that uncontroverted evidence stands proven

The Supreme Court swiftly dismissed the issue of the Election Tribunal's jurisdiction as not seriously contested

Regarding the denial of opportunity, the Court found that the respondent-returned candidate was afforded ample opportunities to cross-examine witnesses and present evidence but failed to do so, deliberately attempting to delay proceedings.

The uncontroverted evidence presented by the appellant-election petitioner regarding the third child after the cut-off date conclusively established the respondent-returned candidate's disqualification under Section 45(1)(v) of the 1959 Act

The Court found no reason to interfere with the concurrent findings of the Election Tribunal, Election Appellate Tribunal, and High Court on the disqualification

Crucially, in addressing the consequential relief, the Court emphasized that Sections 44-E and 44-J(2)(b) of the 1959 Act expressly allow for the declaration of another candidate as duly elected when the returned candidate is disqualified

Since only the appellant-election petitioner and the respondent-returned candidate contested for the Chairman post, and the latter was disqualified, the former was the only remaining contender

Given the three years consumed in litigation, depriving the appellant of the relief would be a travesty of justice

The Election Appellate Tribunal and High Court erred in directing fresh elections by speculating on other members' opportunities, especially when only two candidates contested

The Court restored the Election Tribunal's direction declaring the appellant-election petitioner elected to the post of Chairman of the Delang Panchayat Samiti

Consequential steps for compliance were directed to be taken within two weeks

The special leave petition filed by Basanti Sahoo was dismissed