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2010 DIGILAW 498 (ORI)

Sucheta Samanta v. Bidyutlata Nayak

2010-07-22

I.MAHANTY, V.GOPALA GOWDA

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JUDGMENT I. MAHANTY, J. : The present writ appeal has been filed seeking to challenge the judgment dated 23.6.2010 passed by the learned Single Judge of this Court in W.P.(C) No.13570 of 2008, whereby, the learned Single Judge has set aside the judgment and order dated 10.9.2008 passed by the lower appellate Court (Dis¬trict Judge, Dhenkanal) in F.A.O. No.26 of 2007 and affirmed the judgment of the trial Court (Civil Judge, (Jr. Division), Dhenka¬nal) declaring the election of the opposite party (Appellant herein) as null and void, but declining to affirm that part of the order of the trial Court declaring the writ petitioner (Opposite party herein) as Sarpanch of Digambarpur Grama Panchay¬at. The learned Single Judge has further directed the competent authority to conduct fresh election in respect of the office of Sarpanch of Digambarpur Grama Panchayat expeditiously. 2. The limited fact that needs to be noted herein is that, the present appellant, Sucheta Samanta had been declared elected as “Sarpanch” of Digambarpur Grama Panchayat, which was reserved for “Other Backward Classes Women” candidates only. The election of Sucheta Samanta was challenged by one Bidyutlata Nayak (Re¬spondent), who had also contested in the election and had secured the second highest number of votes, vide Election Misc. Case No.24 of 2007. The petition was allowed by the learned Civil Judge (Jr. Division), Dhenkanal, declaring the election of Suche¬ta Samanta (appellant) as null and void and further declaring Bidyutlata Nayak (election petitioner and respondent herein) as duly elected candidate and declaring her as Sarpanch of Digambar¬pur Grama Panchayat. 2.1 The present appellant-Sucheta Samanta challenged the order passed by the learned Civil Judge (Jr. Division) in F.A.O. No.26 of 2007 before the learned District Judge, Dhenkanal, who by judgment dated 10.9.2008 allowed the appeal and set aside the order of the Election Tribunal. The respondent herein, namely, Bidyutlata Nayak challenged the order passed by the lower appel¬late Court, i.e., District Judge, Dhenkanal, before the learned Single Judge of this Court in W.P.(C) No.13570 of 2008. The said writ application was allowed by the learned Single Judge, quash¬ing the order passed by lower appellate Court (District Judge) and confirming the judgment rendered by the trial Court (Civil Judge (Jr. Division)) declaring the present appellant’s election as Sarpanch null and void but refusing to affirm the order of the trial judge declaring the election petitioner, as the duly elect¬ed Sarpanch of Digambarpur Grama Panchayat. Division)) declaring the present appellant’s election as Sarpanch null and void but refusing to affirm the order of the trial judge declaring the election petitioner, as the duly elect¬ed Sarpanch of Digambarpur Grama Panchayat. 3. Learned counsel for the appellant strenuously urged that the election petition filed by the respondent was barred by limitation and though the election petitioner had filed the election petition under Section 31(1) of the Orissa Grama Pan¬chayat Act, 1964 along with an application under Section 5 of the Limitation Act for condonation of delay, the same ought not have been allowed, since the election petitioner had failed to explain each day’s delay in filing of the election petition. 3.1. Section 31(1) of the Orissa Grama Panchayat Act stipu¬lates that an election petition is required to be filed within 15 days after the date on which the name of the person elected is published. The second proviso to Section 31(1) also stipulates that if the petitioner satisfies the Civil Judge (Jr. Division) that sufficient cause existed for the failure to present the petition within the period aforesaid, the Civil Judge (Jr. Divi¬sion) may in his discretion condone such failure. 3.2 The record of the present case indicate that the elec¬tion petitioner had filed an application under Section 5 of the Limitation Act seeking condonation of delay and in the said application the petitioner has stated that she had suffered illness from 20.2.2007 to 19.3.2007 and that was the cause for the delay in filing the election petition. It also appears that the treating physician had been examined as P.W.2 in the proceed¬ing and proved Exhibit-2, i.e., the Medical Certificate issued by him and the prescriptions Exhibits-3 and 3/3 to the election petition. Accordingly, based on the aforesaid documentary and oral testimony as well as the averments of the petitioner, the Election Tribunal was satisfied by the cause which existed for the failure on the part of the election petitioner in presenting the election petition within the period stipulated under Section 31(1) of the Orissa Grama Panchayat Act and accordingly, such delay was condoned. 4. 4. It is well settled in law that appreciation of an application for condonation of delay under the Limitation Act requires adjudication based on both facts and law and in exercise of writ jurisdiction as well as writ appellate jurisdiction, this Court ought not to delve into the reasons for which the learned Election Tribunal expressed its satisfaction for condoning the delay under Section 31(1) of the Orissa Grama Panchayat Act unless the same are perverse or based on no evidence. 5. We do not find any reason indicated in the order of the learned Election Tribunal, which can be said to be perverse or does not support the conclusion reached by it in so far as the aspect of condonation of delay is concerned. Therefore, we reject the contention raised by the appellant herein that the limitation petition ought not to have been allowed. We are satisfied that the election petitioner has provided adequate cause explaining the delay both by making necessary averments in the application as well as bringing on record documentary and oral evidence in support of the same. Since the delay was condoned on appreciation of all the aforesaid facts, we do not find any cogent reason to entertain any challenge to the same. 6. Apart from the above, the findings of both the learned Election Tribunal as well as learned Single Judge it is clear that the case of the appellant, admittedly belongs to “Kshya¬triya” caste and such caste does not find mention in the list of “Socially and Educationally Backward Classes” (in short ‘SEBC’), as notified by the Government of Orissa from time to time. In the SEBC list in the caste “Agnikula Kshyatriya” has been reflected. It is also clear therefrom that the appellant who belongs to “Kshyatriya” caste does not belong to the “Backward Classes” and therefore the nomination to contest the election of Sarpanch reserved for Other Backward Classes ought not to have been ac¬cepted and it ought to have been rejected. 7. It is well settled by the Hon’ble Supreme Court that it is not permissible to include a caste or a sub-caste or part of or group of any caste which is synonymous to a caste in the scheduled tribe order. 7. It is well settled by the Hon’ble Supreme Court that it is not permissible to include a caste or a sub-caste or part of or group of any caste which is synonymous to a caste in the scheduled tribe order. Hence, since the caste “Agnikula Kshya¬triya” has been specified as Socially and Educationally Backward Classes and the certificate issued to the appellant indicates the caste of the appellant is “Kshyatriya” it is impermissible to hold that the term “Kshyatriya”, is synonymous to the term “Agnikula Kshyatriya” as available in the list of SEBC as noti¬fied by the State Government. 8. In consideration of the aforesaid facts and on perusal of the impugned judgment passed by the learned Single Judge, we are of the considered view that there is no illegality or infirm¬ity in the impugned order, and therefore, we have no other alter¬native other than to affirm the impugned order passed by the learned Single Judge and direct dismissal of the writ appeal. No costs. V. GOPALA GOWDA, C.J. I agree. Appeal dismissed.