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2009 DIGILAW 59 (ORI)

BEBIRANI BARAL v. SANKHALATA SAHOO

2009-01-22

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - The Petitioner is the returned candidate as Sarpanch of Anyashipur Grama Panchayat. The Sarpanch of the Constituency is the reserved Constituency for OBC/SEBC lady candidate. The Opp. Party No. 1 instituted an election dispute before the Learned Civil Judge (Junior Division), Jajpur being Election Petition No. 5 of 2007 u/s 31 of the Orissa Grama Panchayat Act, 1964 (for short, 'the Act').The Opp. Party No. 1 in the election petition alleged that as per notification of the State Government, the said post of Sarpanch is reserved for OBC/SEBC lady candidate and the present Petitioner is the daughter of one Amulya Singh, whose caste is "Kayasta" and after her marriage with one Biswajit Baral, who belongs to SEBC, she cannot take the benefit of her marriage to claim that she also belongs to OBC/SEBC. The Petitioner has filed her objection/written statement to the election petition stating, inter alia, that the Record of Rights standing in the name of her father does not show that her father belongs to "Kayasta" caste and, rather, in the Sabik settlement of 1910, the paternal family of the Petitioner has been recorded and known as "Sagarpesa" as sub-caste and she filed her nomination on the basis of the caste of her father. After her marriage in Baral family under the same Grama Panchayat, the Voters list has been corrected describing her as "Bebirani Baral". As such, she was not disqualified from filing the nomination. The Learned Election Tribunal returned all the findings in favour of the Petitioner and by Judgment dated 18.10.2007 dismissed the election petition. The Opp. Party No. 1 being aggrieved by the said Judgment of the Learned Election Tribunal, preferred Election Appeal No. 10 of 2007 before the Learned District Judge, Cuttack u/s 38(4) of the Act. During pendency of the appeal, the Petitioner filed an application under Order 41, Rule 27 C.P.C. read with order 16, Rule 14 C.P.C. to summon the Tahasildar, Bari for his examination as a witness requiring him to produce the relevant documents relating to the caste under dispute in the election petition. The Learned District Judge, by his Order Dated 19.5.2008 rejected the said petition as not maintainable. The Learned District Judge, by his Order Dated 19.5.2008 rejected the said petition as not maintainable. Being aggrieved by the order of rejection of the said application, the Petitioner has preferred the present Writ Petition seeking quashing of the said order and for directing the Learned District Judge to summon the Tahasildar as prayed for by the Petitioner. 2. Mr. Mishra, Learned Counsel for the Petitioner submitted that the specific plea of the Opp. Party No. 1 before the Learned Election Tribunal in the election petition was that the Petitioner belongs to "Kayasta" by sub-caste which does not come within the purview of OBC/SEBC and the Opp. Party No. 1 have never pleaded that the sub-caste "Sagarpasa" and the sub-caste "Sagarpesa" are two different sub-caste. It is an admitted case that the sub-caste "Sagarpasa" is included in the OBC/SEBC list. It is the further case of the Petitioner that the caste certificate of the brother of the Petitioner shows that he belongs to sub-caste "Sagarpasa" which is written in English whereas in the R.O.R the caste was indicated as "Sagarpesa" in Oriya. Mr. Mishra vehemently argued that the specific case of the Opp. Party No. 1 being that the Petitioner belongs to sub-caste "Kayasta", it is not open for the Opp. Party No. 1 to take a different plea before the Appellate Court by contending that the sub-caste "Sagarpasa" and "Sagarpesa" are two different sub-caste. 3. Mr. P. Kar, Learned Counsel for the Opp. Party No. 1 strongly objected to the contentions made by Mr. Mishra and submitted that the Petitioner no where in her written statement pleaded that "Sagarpasa" and "Sagarpesa" are synonymous. 4. The Learned Election Tribunal framed issue. No. 3 as to whether the Opp. Party No. 1 in the Election petition (Writ Petitioner) belongs to OBC/SEBC and while answering the said issue wrongly held that "Sagarpesa" sub-caste is recognized as a backward class under serial No. 149 of the list. 5. Mr. Kar submitted that though the issue was rightly framed, but the findings of the Learned Election Tribunal was based on misconception. According to him, the Tahasildar is not competent to say/declare two sub-castes as synonymous, if both are not included in the list, and, therefore, there was no cogent reason for the Appellate Court to summon the Tahasildar, as the appeal can be disposed of on the basis of the materials available on record. According to him, the Tahasildar is not competent to say/declare two sub-castes as synonymous, if both are not included in the list, and, therefore, there was no cogent reason for the Appellate Court to summon the Tahasildar, as the appeal can be disposed of on the basis of the materials available on record. Hence, he submitted that the Learned Appellate Court is right in rejecting the prayer of the Petitioner by the impugned order. He relied upon the decision in the case of State of Maharashtra v. Milind and Ors. AIR 2001 SC 393 in support of his contention that neither the State Legislature nor the State Executive or the Court or the Tribunal has power to make enquiry in to the matter to determine a caste, where there is no specific mention of the sub caste in the Presidential Order. He further contended that as the Petitioner filed the ROR in which her sub-caste has been mentioned as "Sagarpesa", the burden lies on her to prove that her sub-caste is "Sagarpasa". He derived supports for this contention from the decision in the case of Anil Rishi v. Gurbaksh Singh 2006 1 CLR 739 SC. 6. Without entering into the disputed question as to whether the Petitioner belongs to OBC/SEBC, it would suffice to examine the legality of the impugned order, by which the application filed by the Petitioner under Order 41, Rule 27 C.P.C. was rejected. 7. Order 41, Rule 27 C.P.C. reads as follows: 27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 8. A bare reading of the above provision clearly goes to show that the party seeking to produce additional evidence is required to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him before the Trial Court and that the Appellate Court if requires any document to be produced or any witness to be examined to enable it to pronounce its Judgment or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. 9. In the instant case, the question of the Petitioner producing additional evidence on the ground that notwithstanding exercise of due diligence, she was unable to produce such evidence before the Learned Trial Court does not arise. Hence, it is to be seen as to whether the Appellate Court could have required the evidence of the concerned Tahasildar to enable it to pronounce the Judgment or for any other substantial cause. The Learned Appellate Court on analyzing the provisions of Order 41, Rule 27 C.P.C. came to the conclusion that the opinion of the Tahasildar that the sub-caste "Sagarpesa" and sub-caste "Sagarpasa" are one and the same will neither help the Petitioner in any way nor the Court for pronouncing the Judgment. He has further observed that the opinion of the Tahasildar in this regard is also not a relevant opinion and unless an opinion is given by an expert, the same would not be admissible in evidence as per Section 45 of the Evidence Act. 10. This Court finds that since the Record of Rights showing the caste of the father of the Petitioner and the caste certificate of the brother of the Petitioner are already on record, the Learned Appellate Court is competent to consider the same in order to arrive at a conclusion as to whether the Petitioner belongs to OBC/SEBC or not. Hence, summoning the Tahasildar to give evidence is also not essential for the Appellate Court to pronounce the Judgment in the appeal. 11. Therefore, I find no error to have been committed by the Appellate Court in rejecting the application of the Petitioner by the impugned order. Hence, summoning the Tahasildar to give evidence is also not essential for the Appellate Court to pronounce the Judgment in the appeal. 11. Therefore, I find no error to have been committed by the Appellate Court in rejecting the application of the Petitioner by the impugned order. No ground has been made out by the Petitioner for this Court to exercise the power under Article 226 of the Constitution for interfering with the impugned order. The Writ Petition is, therefore, dismissed being devoid of merit. Final Result : Dismissed