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2009 DIGILAW 103 (ORI)

SANSARI SAMAL v. PUSPALATA PARIDA

2009-02-03

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - The Petitioner is the returned candidate to the office of Sarpanch of Nagiapasi Grama Panchayat. The election of the Petitioner has been challenged by the Opp. Party No. 1 on the ground that the Petitioner was not eligible to contest the said election as she is not able to read and write Oriya. The said election dispute was numbered as Election Petition No. 37 of 2007 and was ultimately allowed on 12.3.2008 by the Learned Civil Judge (Junior Division), Dhenkanal. The Election Tribunal while declaring the election of the Petitioner to be null and void, further directed that the election Petitioner (Opp. Party No. 1) having obtained the next highest number of votes, is declared as elected to the post of Sarpanch. The Petitioner being aggrieved by the said order, preferred FAO No. 6 of 2008 before the Learned District Judge, Dhenkanal, who, while confirming the order of the Election Tribunal with regard to declaration of the election of the Petitioner as null and void, reversed the order of the Election Tribunal with regard to declaration of the Opp. Party No. 1 (election Petitioner) as the elected Sarpanch. Being aggrieved by the orders of the Courts below declaring the election of the Petitioner as null and void, the Petitioner has preferred this Writ Petition for appropriate relief. 2. The Opp. Party being aggrieved by the order passed in the appeal reversing the order of the Election Tribunal, by which she was declared as the elected Sarpanch, has preferred W.P. (C) No. 13075 of 2008 for appropriate relief. 3. It appears that during pendency of the election dispute before the Learned Civil Judge (Junior Division), Dhenkanal, the Petitioner approached this Court in W.P. (C) No. 13459 of 2007 challenging the Order Dated 13.7.2007 passed by the Election Tribunal. By the said order, after closure of evidence from the side of the election Petitioner (Opp. Party No. 1), the Petitioner was directed to appear in Court and adduce evidence. But as she did not appear in the Court, the Election Tribunal directed the Petitioner to appear in Court positively on the date to which the case stood posted. By the said order, after closure of evidence from the side of the election Petitioner (Opp. Party No. 1), the Petitioner was directed to appear in Court and adduce evidence. But as she did not appear in the Court, the Election Tribunal directed the Petitioner to appear in Court positively on the date to which the case stood posted. This Court by Order Dated 26.2.2008 disposed of the said Writ Petition directing the Petitioner to appear before the Election Tribunal on the next date to which the Election Petition No. 37 of 2007 stood posted for trial, failing which the case was directed to be proceeded with in accordance with law. It was also made clear by this Court that no further time shall be granted to the Petitioner to adduce evidence. From the certified copy of the order sheet in the Election Petition, it appears that on 18.2.2008 the case was directed to be put up on 3.3.2008 for filing of necessary relevant documents to enable the Court to know the real/actual position of W.P. (C) No. 13459 of 2007, so that the Court can take further steps in the matter. After disposal of the aforesaid Writ Petition, on 26.2.2008, the Election Petition was taken up on the date fixed, i.e., on 3.3.2008. On that day, the order passed in the Writ Petition was produced before the Court below and the Petitioner was found absent. The Election Tribunal after taking note of the order passed by this Court directing the Petitioner to appear before him on the next date posted for trial, recorded that the evidence from the side of the Petitioner (Opp. Party No. 1 in the Court below) is closed and posted the case to 4.3.2008 for argument. 4. Mr. P.K. Singh, Learned Counsel for the Petitioner strenuously urges that since this Court directed in the previous Writ Petition that the Petitioner should appear before the Election Tribunal on the date to which the case stands posted for trial and the said date, i.e., 3.3.2008 being not a date to which the Election Petition was posted for trial, even if the Petitioner did not appear on that date, the Learned Election Tribunal could not have recorded closure of evidence from the side of the Petitioner and could not have posted the case for argument. He further submits that by recording closure of evidence from the side of the Petitioner, the Petitioner has been prevented from adducing the evidence and there has been violation of principles of natural justice. According to Mr. Singh, this question raised before the Appellate Court has also not been dealt with in its proper perspective. 5. Mr. B. Ratho, Learned Counsel for the Opp. Party No. 1, on the contrary, submits that since the Election Petition was at the stage of hearing and after closure of evidence from the side of the election Petitioner, it was for the Petitioner to lead evidence, it cannot be said that the case was not posted for trial on 3.3.2008. 6. The Learned District Judge in paragraphs-7 and 8 of the impugned order addressing itself to the above question held as follows: 7. Now, to hold if the Appellant was given sufficient reasonable opportunity to adduce evidence, on going through the order sheet of the lower Court record, it is seen that P.W.1 was examined on 10.2.07 and cross-examined on 23.7.07, 11.9.07 and the Respondent No. 1 closed the evidence from her side. Then, the case was posted to 13.9.07 for personal attendance of O.P. No. 1. On 13.9.07, the Learned Court below received the certified copy of the order of the Hon'ble Court for interim stay of further proceeding of Election Misc. Case No. 37/07. Then, on 3.3.08, the certified copy of the order of the Hon'ble Court, passed in W.P. (C) No. 13459/2007 was filed in the Court in which, the Petitioner, the present Appellant was directed to appear before the Learned Court below on the next date, on which, the election petition No. 37/07 stood posted for trial, failing which the case would proceed in accordance with law. By virtue of such order, the next date of posting since was 3.3.08 and the Appellant Sansari Samal remained absent, violating the direction of the Hon'ble Court, the Trial Court closed the case of the Appellant and proceeded with the case according to law. 8. By virtue of such order, the next date of posting since was 3.3.08 and the Appellant Sansari Samal remained absent, violating the direction of the Hon'ble Court, the Trial Court closed the case of the Appellant and proceeded with the case according to law. 8. It is the submission on behalf of the Respondent No. 1 that the Appellant by going on dragging the proceeding by filing petitions before the Court below, thereby apparently, her conduct would certainly amount to an avoidance and the Learned Court below has rightly held the absence of the Appellant to be deliberate, not being supported by any genuine ground and. the order of the Court below dated 3.3.08 is nothing, but in obedience to the orders of the Hon'ble Court passed in W.P. (C) No. 13459/07 and after closure of evidence on both the sides, on hearing arguments, advanced by both the sides, the matter was decided accordingly. 7. On perusal of the order passed by this Court in W.P.(C) No. 13459 of 2007, it is seen that this Court issued a specific direction to the Petitioner to appear before the Trial Court on the next date to which the Election Petition No. 37 of 2007 stands posted for trial, failing which, the case shall proceed in accordance with law. (Emphasis supplied) 8. The moot question, therefore, which is to be determined in the present Writ Petition, is as to whether the Election Petition No. 37 of 2007 was posted for trial on 3.3.2008. 9. The relevant portion of the previous Order Dated 18.2.2008 passed by the Election Tribunal in Election Petition No. 37 of 2007 reads as follows: xx xx xx Put up on dtd. 3.3.08 for filing of necessary relevant document to enable this Court to know the real/actual position of WPC No. 13459/07, for appropriate step to be taken by this Court. The other party too to act accordingly. 10. The Supreme Court in the case of Harish Chandra Bajpai Vs. Triloki Singh, had the occasion to interpret the word "trial" in a case under the Representation of People Act, 1951 (hereinafter referred to as 'the Act). Interpreting the word "trial", the Supreme Court held that the word "trial" may be understood in a limited sense, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. Interpreting the word "trial", the Supreme Court held that the word "trial" may be understood in a limited sense, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. It may also connote the entire proceedings before the Tribunal from the time that the petition is transferred to it u/s 86 of the Act until the pronouncement of the award. The Supreme Court further held that the word "trial" standing by itself is susceptible of both the narrow and the wider senses as indicated above, the question to be considered is, what meaning attaches to it in Section 90(2) of the Act and to decide that, one must have regard to the context and the setting of the enactment. The Supreme Court, thereafter, analyzing various provisions of the Act, concluded that on interpretation of Section 86(4) of the Act, it is seen that the said provision must apply to retirement or relinquishment by a member, even before the hearing commences and the expression "during the course of trial" must, therefore, include the stages prior to the hearing. it also analyzed the other provisions of the said Act and held that the trial for the purpose of different Sections in the Act would have different meaning as u/s 90(2) of the Act, the word "trial" would mean only the hearing. Referring to Section 92 of the Act, the Supreme Court held that the said Section enacts that the Tribunal shall have powers in respect of various matters which are vested in a Court under the CPC when trying a suit and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents which clearly do not form part of the hearing but precede it. Thus, the Supreme Court concluded that the provisions of Chapter-Ill read as a whole, clearly show that "trial" is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it u/s 86 until the pronouncement of the award. Mr. Singh, Learned Counsel for the Petitioner relies upon the decision in the case of Hans Raj owner of the firm Hans Raj owner of the firm Ram Saran Dass Ram Dass, Amritsar Vs. Sohan Singh and Others, in support of the contention that the Election Petition was not fixed for trial on 3.3.2008. Mr. Singh, Learned Counsel for the Petitioner relies upon the decision in the case of Hans Raj owner of the firm Hans Raj owner of the firm Ram Saran Dass Ram Dass, Amritsar Vs. Sohan Singh and Others, in support of the contention that the Election Petition was not fixed for trial on 3.3.2008. In the said case, the Punjab High Court was considering the meaning of "hearing of the suit and interpreting order 18, Rule 2 C.P.C. read with Order 20, Rule 1 C.P.C. and order 9, Rule 7 C.P.C. held that the expression "hearing of the suit" in Order 18, Rule 2 means the hearing at which the Judge would be taking evidence or hearing arguments or would have to consider questions relating to the datermination of the suit which would enable him finally to come to an adjudication upon it. As such, the Punjab High Court held that the date on which the Court expected the report of the Commissioner was not the date of hearing. 11. Applying the ratio of the decision of the Supreme Court in the case of Harish Chandra Bajpai and anther (supra), that the word "trial" is susceptible of both the narrow and the wider senses/meaning and 'while considering the meaning of the word "trial" one must have regard to the context and setting of the enactment, it would be necessary to refer to the provisions of the Orissa Grama Panchayat Act in this regard. The relevant provisions for this purpose are Sections 35 and 37 of the Orissa Grama Panchayat Act, which are as follows: 35. Procedure before the (Civil Judge (Junior Division))-(1) Subject to the provisions of this Act and the rules made thereunder every election petition shall be tried by the (Civil Judge (Junior Division)] as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits. (2) The (Civil Judge (Junior Division)) shall not be required to record or to have the evidence recorded in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case. (3) The (Civil Judge (Junior Division)) shall, for the purpose of deriding any issue receive so much evidence, oral or documentary, as he considers necessary and may required the production of any evidence. (3) The (Civil Judge (Junior Division)) shall, for the purpose of deriding any issue receive so much evidence, oral or documentary, as he considers necessary and may required the production of any evidence. (4) The (Civil Judge (Junior Division)) may, at any stage of the proceedings require the Petitioner to give further security for the payment of all costs incurred or which is likely to be incurred by any Opposite Party and if within the time fixed by him or within such further time as he may allow such security is not furnished, he may dismiss the petition. (5) No witness or other person shall be required to disclose the name of the persons for whom he has voted at an election. (6) The provisions of the Indian Evidence Act, 1872 (1 of 1872) shall, subject to the provisions of this Act, apply in the trial of an election petition. (7) Notwithstanding anything in any enactment to the contrary no document shall be inadmissible in evidence on the ground that it is not duly stamped or registered. (8) Reasonable expenses incurred by any person in attending to give evidence may be allowed to such person which shall, unless the (Civil Judge (Junior Division)) otherwise directs, be deemed to be part of the costs, (9) Any order as to costs passed by the (Civil Judge (Junior Division)) shall be executed by him on application made in that behalf in the same manner and by the same procedure as if it where a decree for the payment of money passed by himself as suit. 37. Powers of (Civil Judge (Junior Division))-The (Civil Judge (Junior Division)) shall have the powers which are vested in a Court under the code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely: (a) discovery and inspection; (b) enforcing the attendance of witness, requiring the deposit of their expenses; and (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; (g) issuing commissions for the examination of witness and may summon and examine suo motu any person whose evidence appears to him to be material; and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (5 of 1898). 12. 12. No rules have been prescribed in this regard in the Orissa Grama Panchayat Election Rules. From the above provisions of the Orissa Grama Panchayat Act, it is, therefore, clear that there is no provision pari materia with Section 86(4) of the Representation of People Act. 13. This Court is, therefore, of the view that the ratio of the decision in the case of Raj owner of the firm Rama Saran Dass Ram Dass, Amritsar (supra) will be squarely applicable to an election dispute under the Orissa Grama Panchayat Act. Hence, it will be clear that the election dispute was not posted for trial on 3.3.2008. Therefore, the contention of Mr. Singh that the Learned Election Tribunal should not have posted the case for hearing of arguments even though the Petitioner was absent from Court on 3.3.2008 as the said date was not a date fixed for trial, is acceptable. 14. In view of the above, the conclusion of the Appellate Court that there is no error committed by the Learned Election Tribunal in fixing the case for arguments on 3.3.2008 is unsustainable and, therefore, the order of the Appellate Court which is based on such finding also cannot be sustained. The Judgment dated 28.7.2008 of the Learned District Judge, Dhenkanal under Annexure-2 is accordingly quashed and the matter is remitted back to the Learned Civil Judge (Junior Division), Dhenkanal with a direction that the Learned Civil Judge shall accept the evidence of the Petitioner either by way of affidavits or she being examined in-chief in Court, and shall afford opportunity to the Opp. Party No. 1 for cross-examining her. On re cording such evidence, the same shall be remitted to the Appellate Court and the Appellate Court shall rehear the appeal taking into consideration the deposition of the Petitioner and dispose of the same afresh in accordance with law. For the above purpose, both the parties shall appear before the Learned Civil Judge (Junior Division), Dhenkanal on 3.3.2009, when the Learned Civil Judge shall fix a date for recording of the evidence/statement of the Petitioner as directed above and such deposition recorded shall be remitted to the Appellate Court by 31.3.2009. The Appellate Court is directed to dispose of the appeal afresh as directed above by end of April, 2009. The Writ Petition is accordingly allowed. Final Result : Allowed