Sanju Panda, J.
1. In this writ application challenge has been made to the Order Dated 30.4.2009 passed by the Learned District Judge, Keonjhar in Election Petition No. 2 of 2008 declaring the Election of the Petitioner as Councilor of Ward No. 15 of Anandapur Municipality invalid.
2. The facts as narrated in the application are as follows:
In the Election held in September, 2008, the Petitioner has been elected from Ward No. 15 of Ananadpur Municipality securing the highest number of votes, i.e., 457, whereas the Opposite Party secured 387 votes. Challenging the said Election, the Opposite Party filed an application under Sections 18 & 33 of the Orisa Municipal Act, 1950 with a prayer to declare that the Petitioner was disqualified as a Councilor as he had not disclosed about the facts of G.R. Case Nos. 218 of 2000 & 95 of 2001 provided under Section 16(1)(xii) of the Orissa Municipal Act.
3. The Petitioner appeared in the said case & filed his showcause stating therein that he had disclosed about the facts of G.R. Case Nos. 312 of 2003 & 223 of 2004 but not disclosed about G.R. Case Nos. 95 of 2001 & 218 of 2000 as the said cases were not pending. In G.R. Case No. 95 of 2001 the Petitioner along with two others had been found guilty under Sections 323/383/506, IPC & directed to be released under Sections 4(1) & (3) of the Probation of Offenders Act for a period three years executing a bond of Rs. 5,000 without any surety. Also in G.R. Case No. 218 of 2000 the present Petitioner along with two others had been found guilty under Sections 323/34, IPC & sentenced to undergo simple imprisonment for six months & pay a fine of Rs. 500, in default, to undergo simple imprisonment for 15 days. The said order of conviction is a subject matter of Appeal in Criminal Appeal No. 19 of 2008 & the Petitioner has obtained an interim stay in the said appeal. With the bona fide impression the Petitioner could not disclose about those two cases as those were no more pending as G.R. Cases. Basing thereupon, the Tribunal formulated five issues. In support of their pleas, both the parties adduced oral as well as documentary evidence. After analyzing the evidence, the Tribunal came to the finding that the present Petitioner had concealed the fact of his conviction in the criminal cases & having held so, declared him as disqualified on the ground that the Election to the office of Councilor in Ward No. 15 of Anandapur Municipality was materially affected by deliberate suppression of the fact of his conviction by the Petitioner in his affidavit.
4. Learned Counsel for the Petitioner submitted that as per Section 16(1)(xii) of the Orissa Municipal Act, 1950 a person can be held to be disqualified for Election if he has been sentenced by a Criminal Court to transportation or to imprisonment for a period of more than six months for any offence. Since, the sentence against the Petitioner is only six months the said Section is not attracted. He further submitted that since the Petitioner has been convicted for six months which is not exceeding six months, he cannot be said to have incurred the liability of disqualification as enumerated in Section 16(1)(xii) of the Orissa Municipal Act. He also submitted that the order of conviction in G.P. Case No. 95 of 2000 was no more pending against him as he along with two others had been released under Section 4(1) & (3) of the Probation of Offenders Act. Therefore, the non-disclosure of the above two G.R. Cases cannot be a ground to declare the E'ection invalid in absence of any statutory provision contained in the Orissa Municipal Act. Hence, the impugned order is liable to be set aside.
5. Learned Counsel for the Opposite Party submitted that the Petitioner suppressed the order of his conviction in G.R. Case Nos. 218 of 2000 & 95 of 2001 & deliberately suppressed the said fact with the apprehension that disclosure thereof would affect the result of the Election. He also submitted that considering the materials available on record, the Tribunal has come to a right conclusion that the Petitioner was disqualified & the Election to the office of Councilor was materially affected by the deliberate suppression. Therefore, the impugned order need not be interfered with. He also contended regarding the maintainability of the writ application that the Petitioner has not impleaded the Tribunal as Opposite Party in this writ application. In support of his contention he cited the decision reported in : AIR 1963 SC 786 (Udit Narain Singh Malpharia v. Additional Member, Board of Revenue, Bihar and Anr.) wherein the Apex Court held that in a writ not only the Tribunal or authority whose order is sought to be quashed, but also the parties in whose favour the said order is issued are necessary parties.
6. So far as maintainability of the writ application is concerned, the Apex Court in the case of Andhra Pradesh S.R.T.C. v. State Transport Appellate Tribunal and Ors. reported in (1998) 7 SCC 353 held that the motor vehicle Tribunal is not a necessary party to a proceeding where the subject matter of an order passed by the authority was under challenge.
7. However, in another decision reported in : AIR 1999 SC 976 (Savitri Devi v. District Judge, Gorakhpur and Ors.), the Apex Court held that there was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the Writ Petition was filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition & describing them as contesting Respondents. Therein the Apex Court observed as under-
We do not approve of the course adopted by the Petitioner which would cause unnecessary disturbance to the functions of the concerned judicial officers. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to Writ Petitions under Article 226 of the Constitution of India or Special leave Petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.
8. In view of the above position of law, the objection raised by the Opposite Party that this writ application is not maintainable due to non-joinder of necessary parties is not accepted as impletion of the Tribunal in this writ application is not necessary.
9. For better appreciation, Section 16(xii) of the Orissa Municipal Act is extracted hereunder:
16. Disqualification of Candidates for election - (1) No person shall be qualified for election as a Councillor of a Municipality if such-
(i) to (xi) xxx xxx xxx
(xii) has been sentenced by a Criminal Court to transportation or to imprisonment for a period of more than six months for any offence, other than an offence of a political character, or an offence, other than an offence not involving moral delinquency (such sentence not having been reversed or the offence pardoned) so long as he is undergoing the sentence & for three yeas from the date of the expiration of the sentence:
Provided that notwithstanding anything contained above the Governor may direct that such sentences shall not operate as a disqualification & upon such a direction being given or if & when the sentence is superseded on appeal or revision he shall be restored to office for such portion of the period for which he was elected, as may remain unexpired at the date if such restoration & any person elected to fill the vacancy in the interim shall, on such restoration, vacate office:
As per the said Section a person can be held to be disqualified for Election if he has been sentenced by a criminal Court to transportation or to imprisonment for a period of more than six months. Since the sentence imposed against the Petitioner is, only for six months, it cannot be said that he was disqualified.
10. Section 12 of the Probation of Offenders Act provides as under:
12. Removal of disqualification attaching to conviction - Notwithstanding anything contained in any other law, a person found guilty of an offence & dealt with under the provisions of Sections 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
In view of the aforesaid provision, since the Petitioner had been released Under Sections 4(1) & (3) of the Probation of Offenders Act, it cannot be held that the criminal cases were pending against him or he was disqualified for the Election. Hence, the finding of the Tribunal that the Petitioner had suppressed those facts cannot be sustained in the eye of law. The impugned order is set aside.
Accordingly, the writ application is allowed.
I.M. Quddusi, A.C.J.
I agree.