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2009 DIGILAW 455 (ORI)

KALABATI JENA v. DHANESWAR JENA

2009-06-22

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - This writ petition has been filed challenging the judgment dated 17.12.2008 passed by the learned District Judge, Cuttack in Election Appeal No. 30 of 2008 by which he confirmed the judgment dated 2.9.2008 passed by the learned Civil Judge (Senior Division)-cum-Election Tribunal, Jajpur Road in Election Misc. Case No. 6 of 2007, on the ground that the judgments are illegal, erroneous and against the materials on record as well as against the spirit and the provisions of the Orissa Grama Panchayat Act. 2. The Petitioner is the returned candidate to the office of the Sarpanch of Ranpur Grama Panchayat. The opp. party No. 1-Dhaneswar Jena filed Election Misc. Case No. 6 of 2007 to declare the election of the Petitioner as void and illegal on the ground that the Petitioner does not know how to read and write Oriya and she was, therefore, disqualified as she does not posses the qualification as prescribed u/s 11(b) of the Orissa Grama Panchayat Act, 1964 (herein referred to as 'the Act'). The Petitioner after her appearance in the Election Misc. Case filed her written statement denying the allegations made in the election petition. The learned Election Tribunal on considering the respective pleadings of the parties framed as many as five issues, which are as follows: 1. Is the misc. case maintainable? 2. Is their any cause of action for the present Petitioner to file this misc. case? 3. Is the present election misc. case barred by law of limitation? 4. Whether on the date of filing of nomination paper, the O.P. No. 1 was able to read and write Oriya? 5. To what relief, the parties are entitled for? 3. The learned Election Tribunal held that the question of maintainability has been raised by the Petitioner on the ground of delay, but since the petition has been filed within the period of limitation, the same is maintainable and there is cause of action for filing of the same. With regard to the vital issue as to whether on the date of filing of nomination paper, the Petitioner was able to read and write Oriya, the learned Election Tribunal on scrutinizing the oral and documentary evidence more specifically some of the entries made in the old age pension register marked as Ext. With regard to the vital issue as to whether on the date of filing of nomination paper, the Petitioner was able to read and write Oriya, the learned Election Tribunal on scrutinizing the oral and documentary evidence more specifically some of the entries made in the old age pension register marked as Ext. 1 and the evidence of the Petitioner adduced before him, concluded that the Petitioner is not at all thorough in reading Oriya language and he was not able to read and write Oriya at the time of filing of the nomination paper. Upon finding thus, the learned Election Tribunal allowed the Election Misc. Case declaring the election of the Petitioner to the office of the Sarpanch as invalid abinitio and directing that a casual vacancy has occurred and the same may be filled up by following due process of law. 4. The Petitioner being aggrieved by the said judgment of the Election Tribunal dated 2.9.2008 preferred Election Appeal No. 30 of 2008 before the learned District Judge, Cuttack. The learned District Judge, Cuttack by his judgment dated 17.12.2008 under Annexure-1 to the writ petition, after hearing the parties, confirmed the order passed by the Election Tribunal. Being aggrieved, the Petitioner has preferred the present writ petition challenging both the judgments passed by the courts below. 5. Mr. Mishra, learned Counsel for the Petitioner submitted that the Election Tribunal has caused mis-carriage of justice in holding that the Petitioner did not know how to read and write Oriya on the date when she filed her nomination paper. He brought to the notice of this Court that the Election Tribunal has found as a fact that the Petitioner though able to read the portion given to her to read out but it was with much difficulty and she took a very long time to read out the same. According to Mr. Mishra, the conclusion of the Election Tribunal after holding as above that the Petitioner is not at all thorough in reading Oriya language, is unsustainable. He also brought to the notice of this Court that from the lower court record, it would be evident that the Election Tribunal asked the Bench Clerk to dictate a portion from the O.G.P. manual to the Petitioner consisting of twenty three lines, which have been exhibited as Ext. He also brought to the notice of this Court that from the lower court record, it would be evident that the Election Tribunal asked the Bench Clerk to dictate a portion from the O.G.P. manual to the Petitioner consisting of twenty three lines, which have been exhibited as Ext. 4 and the Petitioner is stated to have committed several mistakes at the time of writing those lines. According to the Election Tribunal, the signatures given by the Petitioner in the nomination paper also clearly shows that she has given the said signature with much difficulty. On the basis of the above findings, the Election Tribunal came to the conclusion that the Petitioner did not know how to read and write Oriya at the time of filing of the nomination paper and thus she was disqualified. Mr. Mishra further pointed out that the appellate court in a mechanical manner scrutinizing Ext. 1, which is the old age pension register for the year, 2004-2006 straight away came to the conclusion that once it is held that she was unable to read and write Oriya till middle of April, 2006, it is improbable that she was able to read and write Oriya prior to eight months when she filed her nomination paper. Mr. Mishra submitted that the said finding is a piece of surmise and conjecture not based on any material. He further submitted that the appellate court also reiterating the findings of the Election Tribunal with regard to the deposition of the Petitioner as O.P.W. 1 mechanically concluded that she is not able to read and write Oriya and erred in concurring the findings of the Election Tribunal. 6. Mr. S.S. Das, learned Counsel appearing for the opp. parties drawing the attention of the Court to the provisions of the Act submitted that Section 11 of the Act in Clause (c) provides that notwithstanding any thing in Section 10, no member of a Grama Sasan shall be eligible to stand for election as Sarpanch or Naib-Sarpanch if he has not attained the age of twenty one years or is unable to read and write Oriya. He further submitted that the courts below have concurrently arrived at a finding of fact that the Petitioner did not know how to read and write Oriya on the date when she filed her nomination paper. He further submitted that the courts below have concurrently arrived at a finding of fact that the Petitioner did not know how to read and write Oriya on the date when she filed her nomination paper. Therefore/the writ Court should not interfere with such factual findings, which are arrived at by the courts below, on analysis of the materials available on record. 7. The phrase "Read and Writ Oriya" has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed there under. It is, therefore, incumbent on the part of the court to interpret the said phrase keeping in view the legislative intent for introducing such a disqualification clause in case of Sarpanch and Naib-Sarpanch inasmuch as to find out the object to be achieved by such introduction of the disqualification clause. A person who can to some extent, read and write Oriya, cannot be said to be unable to read and write Oriya. The standard of reading and writing Oriya having not been specifically provided in the Act and the Rules, the court cannot introduce a minimum standard of a candidate with regard to reading and writing Oriya. It is a common knowledge that even a candidate who has passed Oriya in matriculation (H.S.C.) may commit various mistakes in writing his answers in Oriya. However, from the same, it cannot be concluded that such candidate does not know how to write in Oriya. Thus, the only interpretation of the phrase "Read and Write Oriya" can be that the candidate should not be illiterate and should at least know how to read and how to write Oriya as a language to a standard as would be required for a person to function as a Sarpanch or a Naib-Sarpanch of a Grama Panchayat. In the instant case, the matter, which was provided to the writ Petitioner, was a portion of the O.G.P. Manual written in Oriya for reading the same before the Election Tribunal. A portion from the said book was also dictated to her by the Bench Clerk of the court. The court has found that the Petitioner read the portion with much difficulty and in writing she committed several mistakes. A portion from the said book was also dictated to her by the Bench Clerk of the court. The court has found that the Petitioner read the portion with much difficulty and in writing she committed several mistakes. It is a common knowledge that legal terms in Oriya are unique and an inhabitant of a Grama, who is otherwise eligible to contest the election for the seat of a Naib-Sarpanch or Sarpanch, can never be used to such terms. This Court also finds that the Election Tribunal has adopted an erroneous method by asking the Bench Clerk to dictate a portion of the Orissa Grama Panchayat Manual written in Oriya, to the Petitioner. It would have been appropriate if the Election Tribunal would have asked the Petitioner to read a portion of the text from any other Oriya Book which does not contain technical words and the Election Tribunal should have himself dictated a portion of such book to the Petitioner to write it down. As pointed out by Mr. Mishra, learned Counsel for the Petitioner, both the courts below have also lost sight of the fact that in several places in the Old Age Pension Register, the Petitioner has given her signature in Oriya. 8. Upon such analysis of the facts involved in the case, this Court is inclined to remit the matter back to the lower appellate court i.e. the learned District Judge, Cuttack with a direction that the said appellate court in Election Appeal No. 30 of 2008 shall himself cause examination of the writ Petitioner by giving her any ordinary text book in Oriya of M.E. standard to read the same before him and the portion given to the Petitioner to read out shall be marked as exhibit. The learned appellate court shall also dictate another portion from the said text book to the Petitioner to write it down by marking the portion dictated from the book as an exhibit as well as marking the writing of the Petitioner as an exhibit. Thereafter, the learned appellate court shall give an opportunity of hearing to both the parties and shall re-appreciate the materials available on record for passing a fresh order/judgment in the appeal along with the correctness of the portions of the book read out as well as written by the Petitioner. Thereafter, the learned appellate court shall give an opportunity of hearing to both the parties and shall re-appreciate the materials available on record for passing a fresh order/judgment in the appeal along with the correctness of the portions of the book read out as well as written by the Petitioner. The confirmation of the judgment of the Election Tribunal or setting aside the same by the learned appellate court shall depend on the conclusion to be arrived at by the said court. 9. In the result, while setting aside the judgment of the lower appellate court passed in Election Appeal No. 30 of 2008 dated 17.12.2008, the matter is remitted back to the learned District Judge, Cuttack to examine the Petitioner, as directed above, and hear the parties and pass a fresh judgment in the appeal. Parties are directed to appear before the lower appellate court on 1st July, 2009 and the lower appellate court shall proceed thereafter to dispose of the appeal as per the directions given above by end of September, 2009. 10. The writ petition is allowed in part, but in the circumstances, without cost.