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2007 DIGILAW 99 (ORI)

Saraswati Pattnaik v. Satrughna Nanda

2007-02-12

N.PRUSTY

body2007
JUDGMENT N. PRUSTY, J. : This appeal has been preferred by the widow of deceased respondent No.1 in the Court below, who was the re¬turned candidate, as appellant No.1; Chairman of Hindol Panchayat Samiti and Elector of Hindol Zone-II Dhenkanal Zilla Parishad Constituency as appellant No.2 and five other Electors of Hindol Zone-II of Dhenkanal Zilla Parishad constituency as appellant Nos.3 to 7; who were not parties before the Additional District Judge-I, Dhenkanal in Election Misc. Case No.84 of 2002. 2. The Election Misc. Case was filed by present Respondent No.1 (Satrughna Nanda) challenging election of the returned candidate/Bhubanananda Pattanaik since dead, from Hindol Zone-II of 25 Dhenkanal Zilla Parishad Constituency and three others, out of whom two were contesting candidates in the election and the last one was Block Development Officer, Hindol-cum-Election Officer. Even though the present appellants were not parties to the Election Misc. Case and as such no way concerned with the case, have filed this appeal challenging the impugned judgment dated 07.02.2005 passed by Shri K.V.C. Rao, learned Additional District Judge (I), Dhenkanal in Election Misc. Case No.84 of 2002, as the persons having interest/aggrieved by the above said order. 3. This Court on an application (Misc. Case No.2 of 2005) for stay operation of the impugned judgment, vide order dated 19.02.2005 directed the “learned Additional Standing Counsel to intimate the Block Development Officer, Hindol (opposite party No.4) not to issue any notification pursuant to judgment dated 07.02.2005 passed by the learned Additional District Judge (I), Dhenkanal in Election Misc. Case No.84 of 2002 till delivery of the order in this case”. Later, vide order dated 15.03.2005 in the said Misc. Case No.2 of 2005, this Court framed five ques¬tions to be adjudicated before passing any order on that applica¬tion and adjourned the case to 05.04.2005 with the direction that the interim order dated 19.02.2005 shall continue till then. As such the interim order was allowed to continue from the date to date. In the meantime Respondent No.3 Chandramani Pradhan died and his name was deleted vide order dated 26.10.2005. As such the interim order was allowed to continue from the date to date. In the meantime Respondent No.3 Chandramani Pradhan died and his name was deleted vide order dated 26.10.2005. As it appears from the record, vide order dated 30.06.2005, it was directed that “interim order passed earlier will continue till next date” and even though the matter was listed thereafter on 26.10.2005, 04.01.2006, 05.01.2006, 09.1.2006, 12.01.2006, 16.01.2006, 17.06.2006, 18.01.2006, 20.01.2006, 25.01.2006, 01.02.2006, 15.02.2006, 18.09.2006, 20.09.2006, 18.10.2006 and 25.10.2006, there were no direction for continuance of the inter¬im order dated 19.02.2005. As such the interim order dated 19.02.2005 no more remained in force/effect since 26.10.2005. Vide order-dated 26.10.2005, it was observed as follows : “This is a peculiar case where the elected candidate has died and his widow has filed the election dispute. Mr. U. K. Samal, learned counsel for the petitioners shall apprise this Court whether cause of action survives to the widow and the writ petition filed by her is maintainable.” Meaning thereby as to whether this Election Appeal is maintainable at the instance of the widow of the returned candi¬date and the Electors, who were not parties to the Election Misc. Case. 4. The appellant also filed an application for leave to appeal on 16.01.2006 i.e., Misc. Case No.1 of 2006- on the 4th day of commencement of hearing of the appeal and the said appli¬cation for leave to appeal was rejected by this Court vide order dated 20.01.2006 with a reasoned order and as it appears the earlier order dated 26.10.2005, where this Court had directed Mr. Samal, learned counsel for the appellants to apprise this Court whether cause of action survives to the widow and the writ peti¬tion filed by her is maintainable and the subsequent order dated 20.01.2006 passed in Misc. Case No.01 of 2006 whereby the appli¬cation for grant of leave to present the appeal was rejected, have not been challenged by the appellants before the appro¬priate/available forum. 5. In view of the position as indicated above, the fact remains that learned counsel for the appellants was to apprise and satisfy this Court as to whether the cause of action survives to the widow and also the six electors, even though their appli¬cation for leave to file appeal had already been rejected by this Court. 5. In view of the position as indicated above, the fact remains that learned counsel for the appellants was to apprise and satisfy this Court as to whether the cause of action survives to the widow and also the six electors, even though their appli¬cation for leave to file appeal had already been rejected by this Court. After rejection of the application for leave to file the appeal, the matter was heard from time to time on the point of maintainability of the appeal filed by the widow and some of the electors of the constituency, after death of the elected person, whose election was challenged in Election Misc. Case No.84 of 2002 and declared as null and void in the said Election Misc. Case by a competent Court. 6. Mr. Samal, learned counsel appearing on behalf of the appellant submits that the elected candidate who was Respondent No.1 in Election Misc. Case No.84 of 2002 in the Court below died on 26.05.2002 leaving behind his widow, sons and daughters.Respondent Nos.2 and 3, who were other candidates contested in the election, did not appear and consequently they were set ex parte. Respondent No.4, the Block Development Offi¬cer, Hindol, who was the Election Officer of Hindol Zilla Paris¬had Zone, had filed the written statement opposing the Election Misc. Case. After death of Respondent No.1, his legal heirs have not been substituted. Since respondents 2 and 3 in the Court below were set ex parte and only official respondent No.4 filed his written statement, there were no contesting respondents to oppose the Election Petition. Since the main contesting respon¬dent was not substituted after his death, the Election Misc. Case has abated as against him and since there was no contesting respondent, the entire Election Petition has abated. Learned counsel further submits that in view of Section 32 (2) of the Orissa Zilla Parishad Act, the provisions contained in Chapter VI-A of the Orissa Panchayat Samiti Act,1959 shall mutatis mutan¬dis apply. Therefore, the provisions of Chapter VI-A of Orissa Panchayat Samiti Act as amended up to 01.09.1993 shall be appli¬cable to the Orissa Zilla Parishad Act and the subsequent amend¬ments of the Orissa Panchayat Samiti Act shall not be applicable. 7. Section 32 (2) of the Orissa Zilla Parishad Act is quoted herein below for better appreciation :- “32. Therefore, the provisions of Chapter VI-A of Orissa Panchayat Samiti Act as amended up to 01.09.1993 shall be appli¬cable to the Orissa Zilla Parishad Act and the subsequent amend¬ments of the Orissa Panchayat Samiti Act shall not be applicable. 7. Section 32 (2) of the Orissa Zilla Parishad Act is quoted herein below for better appreciation :- “32. Election disputes - (1) No election of a person either as a member or as the President or Vice-President of a Parishad held under this Act shall be called in question except by an election petition presented before the District Judge having jurisdiction over the place at which office of the Parishad is situated. (2) For the purpose of Sub-section (1), the provisions contained in chapter-VI-A (hereinafter referred to in this Sec¬tions as the said Chapter) of the Orissa Panchayat Samiti Act, 1959 shall mutatis mutandis apply except as hereunder provided: In the said Chapter- (i) the reference to the expression “Samiti” and “Election Commissioner” wherever they occur, shall be construed as re¬ference to “Parishad” and “District Judge” respectively: (ii) an election petition presented before a District Judge may, either suo motu or on application, be transferred to any Addi¬tional District Judge: (iii) for Sub-section (3) of Section 44-J the following Sub-section shall be substituted, namely : “(3) In the event of the District Judge declaring a casual vacancy to have been created, it shall direct the appropriate authority to take steps for filling the vacancy” : and (iv) for Section 44-Q the following Section shall be substi¬tuted, namely : 44-Q. Any person aggrieved by an order passed by the District Judge may prefer an appeal before the appropriate Court of law exercising civil appellate jurisdiction over the District Judge and in preferring such an appeal the provisions of the Indian Limitation Act, 1963 shall apply.” Mr. Samal, learned counsel submits that since Section 32, which deals with election dispute in Zilla Parishad Act came into operation by Orissa Act 17 of 1993, which provides that the provisions of Chapter-VI-A of the Orissa Panchayat Samiti Act shall have full application, the same shall have full application only with the amendments in the Orissa Panchayat Samiti Act prior to 1993. As such, so far as election disputes of Zilla Parishad is concerned, amendment in the Panchayat Samiti Act after 1993 shall have no application. As such, so far as election disputes of Zilla Parishad is concerned, amendment in the Panchayat Samiti Act after 1993 shall have no application. Therefore, the amendment omitting the word ‘elector’ from filing of the election petition, which came into force only on 18.04.1994 in the Orissa Panchayat Samiti Act, shall have no application to Section 32 of the Orissa Zilla Parishad Act. Accordingly, any elector may file an Election petition in view of the provisions of the Orissa Panchayat Samiti Act, since that provision was there in the Act prior to 1993. Learned counsel has also referred to various provisions of the Representation of People Act with regard to filing of the elec¬tion dispute and cited various decisions in support of his con¬tentions and finally submitted that where there are more than two candidates contesting an election and the election of returned candidate is declared as null and void, the Court cannot declare the candidate who had secured the next higher votes as elected candidate. 8. Mr. Pattnaik, learned counsel appearing on behalf of respondent No.1 in this appeal submits that under Section 32 of the Orissa Zilla Parishad Act, the provisions of Chapter-VI-A mutatis mutandis apply to the election dispute pertaining to the election of Zilla Parishad. Section 44-A of the Orissa Panchayat Samiti Act provides filing of the Election petition. Section 44(C) (1) provides that an election petition made by presented by any candidate as such election. The words “or any elector elig¬ible to vote as such election” has been omitted by virtue of Orissa Act 7 of 1994 (Amendment), to which Mr. Samal says that since Chapter-VI-A of the Orissa Panchayat Samiti Act was made applicable mutatis mutandis in 1993, any amendment made therea¬fter to the Orissa Panchayat Samiti Act cannot be made applicable to the Orissa Zilla Parishad Act, so far as the present case is concerned. Mr. Pattnaik, further submits that Section 44-P of the Orissa Panchayat Samiti Act provides for abatement of the elec¬tion petition, which is quoted as under :- “44-P. Abatement of petition- (1) An election petition shall abate only on the death of the petitioner or where there are more than one petitioners on the death of all the petitioners and such abatement shall be communicated to the concerned Block Develop¬ment Officer by the Subordinate Judge. (2) Where the election petition abates under Sub-section (1) the Subordinate Judge shall cause the fact to be published in such manner as he may deem fit. (3) Any person who might himself have been petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to con¬tinue the proceedings upon such terms as the Subordinate Judge may deem fit.” Accordingly the election petition shall abate only on the death of the petitioner or where there is more than one petition¬er on the date of death of all the petitioners and such abatement shall be communicated to the Block Development Officer by the Subordinate Judge (in this case District Judge). After such abatement under Sub-section (1) the Subordinate Judge shall cause the fact to be published in such manner as he deem fit and any person who might himself have been petitioner may within 14 days of such publication, apply to be substituted as the petitioner and upon compliance of the conditions, if any, as to security, shall be entitled to be substituted and to continue the proceed¬ings upon such terms as the Subordinate Judge (District Judge in case of Zilla Parishad) may deem fit. 9. So far as the appeal is concerned, Section 44-Q of the Orissa Zilla Parishad Act is narrated as under :- “44-Q - Any person aggrieved by an order passed by the District Judge may prefer an appeal before the appropriate Court of law exercising civil appellate jurisdiction over the District Judge and in preferring such an appeal the provisions of Indian Limitation Act, 1963 shall apply.” In view of the above quoted Section 44-Q, any person ag¬grieved by an order passed by the District Judge may prefer an appeal before the appropriate Court of law exercising civil appellate jurisdiction over the District Judge and in preferring such an appeal the provisions of the Indian Limitation Act, 1963 shall apply. 10. Section 44-J(1) and (2) of the Orissa Panchayat Samiti Act provides that the Election Commissioner/Subordinate Judge has right not only to declare an election to be invalid but also can declare any candidate to have been duly elected. 10. Section 44-J(1) and (2) of the Orissa Panchayat Samiti Act provides that the Election Commissioner/Subordinate Judge has right not only to declare an election to be invalid but also can declare any candidate to have been duly elected. So far as the word “Subordinate Judge” which has been substituted in place of the Election Commissioner as per Orissa Act No.7 of 1994 in case of Orissa Panchayat Samiti Act is to be read as “the District Judge” in case of Orissa Zilla Parishad Act for all purposes since the original Court for deciding an election dispute in case of Zilla Parishad is the District Judge. As such, so far as Sec¬tion 44-J is concerned, in respect of election disputes relating to Zilla Parishad, the District Judge has right not only to declare an election to be invalid but also can declare any candi¬date to have been duly elected. Section 44-P, the only provision for abatement of the election petition in clear and categorical terms provides that an election petition shall abate only on the death of the petitioner or where there is more than one petition¬er on the death of all petitioners. 11. In the instant case, since there was only one petition¬er, who filed the Election dispute, only on his death the elec¬tion petition shall abate as per the provision of law and not on the death of any respondent. 12. Here in the instant case, the present appellants can never be treated as the persons aggrieved because of the fact that they were not parties to the election petition and there was no observation in the impugned judgment against them or their predecessor on whose behalf they want to proceed with the case. The election dispute has been filed by a person challenging the election, who was one of the contestants in the election, against the successful candidate as well as the other contestants in the election. After death of respondent No.1 in the Trial Court none of the present appellants have come forward to be impleaded as party in his place for contesting the election petition by way of filing an application in accordance with the relevant provi¬sions of law. When the appeal was presented before this Court, they have also not taken any leave of this Court for filing the appeal. The application filed by them for leave (Misc. When the appeal was presented before this Court, they have also not taken any leave of this Court for filing the appeal. The application filed by them for leave (Misc. Case No.1 of 2006) at a subsequent stage during course of hearing of the appeal was rejected by this Court and since the said order has not been challenged before any available forum, the same is still in full force and effect. 13. As it appears from record, even though there were vari¬ous allegations against the returned candidates in the election petition, the Court below after going through the evidence ad¬duced on behalf of the respective parties called for inspection of ballot papers and on scrutiny of the same came to a conclusion that the election petitioner, who is respondent No.1 in this ap¬peal, has received more number of votes than deceased respondent No.1, Bhubanananda Pattnaik and declared the election petitioner, Satrughna Nanda as member of Zilla Parishad and hence the present appeal has been filed by the appellants, who are the wife of the deceased respondent No.1 (returned candidate, whose election was set aside), Chairman of Hindol Panchayat Samiti who is an elector along with five other electors of Hindol Zilla Parishad constitu¬ency, challenging the impugned order. 14. Even though the present appellants were not parties to the Election Misc. Case but they have filed this appeal as the persons aggrieved by the order passed by the learned Additional District Judge. As such this appeal has not been filed by any one of the persons who were parties to the Election Misc. Case but by the strangers to the Election Misc.Case on the ground that they are the persons having interest/aggrieved. In view of the above, it is first to be seen as to whether these persons (appellants) are the persons having interest/aggrieved or not. From the judgment of the learned Court below as it appears, there is no adverse observation with regard to adoption of any unfair means/corrupt practice as against the deceased respondent No.1. The election of deceased respondent No.1 as Member, Zilla Paris¬had Zone-II, Hindol has been declared as null and void only on the basis of re-counting of the ballot papers as on scrutiny it was found that 91 voters have cast their votes twice in the election and votes numbering 42 were cast in the election in the name of dead persons. On scrutiny of those 133 ballot papers, it is found that 16 void votes (dead persons’ votes plus double votes) were cast in favour of the independent candidate (peti¬tioner), 8 number of void votes (dead persons” votes plus double votes) were cast in the symbol ‘palm’ Congress, i.e., respondent No.3, 14 void votes (dead persons’ and double votes) were cast in the symbol ‘Lotus’ BJP, i.e. respondent No.2, 91 void votes (dead persons plus double votes) were cast in favour of the BJD candidate with ‘Conch’ symbol, i.e. deceased respondent No.1 and 4 void votes were rejected. Accordingly, the above 129 votes were only excluded from the votes secured by the candidates in the election and it was found on recounting that respondent No.3/ Chandramani Pradhan had initially secured 3251 votes and after deduction of 8 void votes he got 3248 valid votes. Respondent No.2/Tarun Kumar Samal initially secured 3251 votes and after deduction of 14 void votes he secured 3237 valid votes. Respon¬dent No.1/deceased Bhubanananda Pattnaik had secured 6799 votes as per the result sheet and after 91 void votes were deducted from the above secured votes, he had secured 6708 valid votes and the election petitioner/Satrughna Nanda secured 6743 votes and after deduction of 16 void votes he had secured 6727 valid votes. Since the election petitioner secured 19 votes more than deceased respondent No.1 in the election, he was declared elected and declaration of deceased respondent No.1 as duly elected by the Election Officer was set aside. 15. Even though there is allegation with regard to adoption of unfair means and corrupt practice by the husband of appellant No.1/deceased Respondent No.1 in the pleadings before the learned Court below, since there is no finding or observation/aspersion with regard to adoption of such unfairmeans/corrupt practice against deceased Respondent No.1 in the impugned judgment and his election as member of the Zilla Parishad Zone No.II, Hindol was declared null and void only on the basis of re-counting of votes, there is no scope for present appellant No.1, who is not an elector or a party to the proceeding to be in any way aggrieved by the impugned judgment and to file this appeal along with other electors as a person aggrieved. Furthermore, being the wife of the returned candidate she can never be a necessary party to the election dispute or can be said to be the person aggrieved or having interest in the matter after death of her husband. As such, the cause of action does not survive to the widow in an election dispute after death of her husband. 16. So far as other appellants are concerned, since they were not parties to the election petition can never be said to be the persons aggrieved, may be that they are the electors, who can file an election dispute as submitted by Mr. Samal, learned counsel for the appellants. The fact remains that the election petitioner was declared elected on recounting of votes, only on deduction of the votes of dead persons as well as the votes of persons who have cast their votes twice and accordingly, deceased respondent No.1’s election was declared null and void. In that view of the matter none of the appellants in the appeal can be said to be the person aggrieved or having interest in the mater and as such this appeal at their instance is also not maintaina¬ble, even keeping in view the provisions of the amendment of Orissa Act No.17 of 1993 (Orissa Zilla Parishad Act) which came into force with the amendment in the Orissa Panchayat Samiti Act up to 1993 and not after amendments incorporated in Orissa Panchayat Samiti Act by Orissa Act 7 of 1994. Even assuming Mr. Samal’s contention that an election petition is maintainable at the instance of the electors as per the pre-amendment of the provisions, but in the instant case the so called electors were not parties to the Election Misc. Case nor they have ever filed any application to be impleaded as parties to the election peti¬tion during its pendency, prior to the death of the returned candidate nor all the appellants have also filed any application before the learned Trial Court for leave to be impleaded as parties after the death of the returned candidates/respondent No.1, being the persons having interest in the matter or ag¬grieved or otherwise. This being a case on the basis of a special Statute, common law cannot be taken into account nor inspiration for this case can be taken from any other law in force, unless it is provided in the special Statute. This being a case on the basis of a special Statute, common law cannot be taken into account nor inspiration for this case can be taken from any other law in force, unless it is provided in the special Statute. Even though assuming that an election petition can be entertained at the instance of the electors, an appeal can only be entertained at the instance of the parties to the election case or the persons having interest or aggrieved by the impugned judgment. In the instant case as discussed above, the appellants are not the parties to the election case nor are they the persons aggrieved having any interest in the matter. Furthermore, this is not a case where the candidate who had secured next higher vote was declared elected, by the candidate who secured the highest vote after deduction of invalid votes has been declared as elected on recounting. 17. Considering the submissions made by the learned counsel for both the parties and after going though the records of the case as well as the facts and circumstances narrated above, I am of the considered view that the decisions cited by the learned counsel for both the parties need no discussion, since the facts and circumstances of those cases are completely different from the case at hand and the points of law involved in those cases cannot be made applicable to the present case. As such, as pro¬vided under the Statute (Section 44-P (1) of the Orissa Panchayat Samiti Act), an election petition shall not abate on the death of deceased respondent No.1 who was the person elected and is only one of the respondents to the Election Misc. Case, since the election petition shall only abate on the death of the petitioner or where there are more than one petitioners on the death of all the petitioners, as the case may be. Further more, the present appellants can never be treated as the persons aggrieved and/or having any interest in the matter in the facts and circumstances of the case as narrated above and hence the cause of action does not survive to the widow of deceased Respondent No.1 in the Court below nor to the electors. As such this appeal filed by the present appellants is not maintainable in the eye of law. 18. The Election Appeal is accordingly dismissed. No order as to costs. As such this appeal filed by the present appellants is not maintainable in the eye of law. 18. The Election Appeal is accordingly dismissed. No order as to costs. Election appeal dismissed.