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2011 DIGILAW 418 (ORI)

Rajen Kumar Parida v. Jameswar Mallick

2011-08-09

B.K.NAYAK

body2011
ORDER Heard Learned Counsel for the parties. 2. Order Dated 5.1.2008 passed by the Learned Civil Judge (Junior Division), Nimapara in Election Misc. Case No. 14 of 2007 allowing the petition for amendment of the election petition filed by the present Opp. Party has been assailed in this Writ Petition. 3. The present Opp. Party filed Election Misc. Case No. 14 of 2007 challenging the election of the present Petitioner as Sarpanch of Nagpur Grama Panchayat, mainly on the ground that his nomination paper for the election was illegally rejected by the B.D.O.-cum-Election Officer, Opp. Party No.5 in the Election Misc. Case. Prayer in the election petition was made to declare the election of the Sarpanch void along with other reliefs. In the Election Misc. Case the Opp. Party filed a petition for amendment of the election petition for incorporating a new ground of challenge to the effect that the present Petitioner is working as a lecturer in Indira Gandhi Mahila Mahavidyalaya, Nimapara and as such holding an office of profit which he did not disclose in his nomination paper and, therefore, he was disqualified to contest the election for the post of Sarpanch of the Grama Panchayat. It was further stated that the Opp. Party had no knowledge at the time of filing of election petition about such disqualification of the Petitioner which he came to learn later. The present Petitioner filed his objection to the amendment petition denying the allegation that he was working as a lecturer in the College at the time of filing of his nomination and further contending that the amendment if allowed would change the nature and character of the case and that the petition was beyond the period of limitation. By the impugned order, the Trial Court allowed the amendment petition subject to payment of cost of Rs. 100 holding that it would avoid multiplicity of proceedings and it is necessary for just decision of the case. 4. Learned Counsel for the Petitioner submits that Section 31 of the Grama Panchayats Act prescribes a period of 15 days for filing an election petition and, therefore, the amendment petition having been admittedly filed beyond 15 days after the date on which the Petitioner’s name was published under Section 15 of the Act, the amendment cannot be allowed. 4. Learned Counsel for the Petitioner submits that Section 31 of the Grama Panchayats Act prescribes a period of 15 days for filing an election petition and, therefore, the amendment petition having been admittedly filed beyond 15 days after the date on which the Petitioner’s name was published under Section 15 of the Act, the amendment cannot be allowed. He has relied on a decision of the Apex Court in K.D. Deshmukh v. Jayaswal; AIR 1992 SC 164 , where an amendment petition urging new ground under the Representation of the People Act was held to be not maintainable as being barred by the limitation (beyond 45 days) provided for filing election petition under the said Act. 5. Learned Counsel for the Opp. Party, on the other hand, contends that second proviso to Section 31 of the Orissa Grama Panchayats Act, 1964 confers a discretion on the Learned Civil Judge (Junior Division) to condone the delay in filing of election petition beyond the period of limitation if the election-Petitioner satisfies the Court about existence of sufficient cause that prevented him to file the petition within the period of 15 days. He further submits that since the decision in K.D. Deshmukh (supra) is not under the Orissa Grama Panchayats Act but under the Representation of the People Act which does not contain any provision for condoning delay for presentation of an election petition, the said decision will have no application to the present case. 6. Sub Section (1) of Section 31 of the Orissa Grama Panchayats Act, 1964 provides as under : "31. 6. Sub Section (1) of Section 31 of the Orissa Grama Panchayats Act, 1964 provides as under : "31. Presentation of petitions -(1) The petition shall be presented on one or more of the grounds specified in Section 39 before the Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs within fifteen days after the date on which the name of the person elected is published under Section 15 : Provided that if the office of the [Civil Judge (Junior Division)] is closed on the last day of the period of limitation as aforesaid the petition may be presented on the next day on which such office is open: Provided further that if the Petitioner satisfies the [Civil Judge (Junior Division)] that sufficient cause existed for the failure to present the petition within the period aforesaid the [Civil Judge (Junior Division)] may in his discretion condone such failure." It is apparent from the aforesaid provision that though a period of 15 days from the date of publication of the name of the elected person has been provided for filing of election petition, the second proviso confers a discretion on the Civil Judge to condone delay in presentation of a petition beyond the said period, if the Petitioner shows to the satisfaction of the Civil Judge that there was sufficient cause for his failure to present the petition within the prescribed period. No such provision like that of the 2nd proviso to Sub Section (1) of Section 31 of the Grama Panchayats Act is available in the Representation of the People Act. Therefore, the decision in K.D., Deshmukh (supra) cited by the Learned Counsel for the Petitioner will have no application to the present case. 7. Since as per the second proviso to Section 31 (1) an original election petition can be entertained if the Petitioner satisfies the Court by showing sufficient cause for his failure to present the petition within the period of stipulated 15 days, there is no reason as to why the said provision shall not apply for introducing a new ground of challenge to the election of the returned candidate by way of amendment in a petition originally filed within time. In his amendment petition, the Opp. In his amendment petition, the Opp. Party has clearly stated that the disqualification of the Petitioner for holding an office of profit as a lecturer in the Indira Gandhi Mahila Mahavidyalaya, which is undisputedly an aided institution, was not within his knowledge at the time of filing of the election petition. This assertion of the Opp. Party has not been disputed or challenged in the objection filed by the Petitioner to the amendment petition. Though the Court below has not specifically stated to have condoned the delay in entertaining a new ground by way of amendment, but it has taken note of the fact of lack of knowledge on the part of the Opp. Party about the disqualification of the Petitioner at the time of filing of original application. If a fresh election petition challenging the election of the Petitioner on the new ground of his disqualification can be entertained by condonation of delay, the Trial Court has appropriately allowed the amendment by way of incorporation of the new ground in Original Application to avoid multiplicity of proceedings. 8. In the aforesaid circumstances, I find no infirmity in the impugned order and decline to interfere with the same. Therefore, the Writ Petition is dismissed. The interim Order Dated 7.2.2008 stands vacated.