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2014 DIGILAW 14 (ORI)

Makardhwaja Mohanty v. Dharmabira Kanungo

2014-01-09

B.R.SARANGI

body2014
Judgment : DR. B.R. SARANGI, J. The petitioner, who is the elected Sarpanch of “Uttaran” Gram Panchayat of Kantapada Block in the district of Cuttack has assailed the legality and correctness of the order dated 05.12.2013 in Annexure-3 passed by the leaned Civil Judge (Jr. Division) 2nd Court, Cuttack in Election Misc. Case No.08/2012 directing to issue a letter to B.D.O.-cum-Election Officer, Kantapada Block to remain present on 07.12.2013 with the key of the sealed box containing marked copy of electoral roll, ballot papers and other documents relating to Kantapada Block sought to be proved by the petitioner. 2. The short fact of the case in hand is that the petitioner was elected as Sarpanch of “Uttaran” Gram Panchayat under Kantapada Block pursuant to election held on 19.02.2012 and held the office of the Sarpanch by discharging his duty till date. The opposite party being the defeated candidate assailed the election of the petitioner raising a dispute by filing Election Misc. Case No.08/2012 before the learned Civil Judge (Jr. Division) 2nd Court, Cuttack praying therein to declare the election of the writ petitioner as void and to set aside the same and to declare the election petitioner-opposite party herein to be duly elected to the office of the Sarpanch of “Uttaran” Gram Panchayat after inspecting and recounting the ballots. 3. The case of the election petitioner-opposite party herein is that pursuant to election held on 19.02.2012 counting was held by the respective Presiding Officers in respective booths after polling was over and the result of counting was recorded in Form 8-A. In the said Form 8-A, it is stated that the writ petitioner had secured 1267 votes whereas the election petitioner-present opposite party secured 1270 votes. Therefore, the election petitioner secured three numbers of more votes than the writ petitioner. On 21.02.2012 in the Block Office, the Election Officer totaled the election results received from different Presiding Officers in Form 8-A and found that the election petitioner-opposite party has received 1270 votes where as the writ petitioner received 1267 votes. Therefore, the election petitioner-opposite party was declared to have won the election by margin of three votes. On 21.02.2012 in the Block Office, the Election Officer totaled the election results received from different Presiding Officers in Form 8-A and found that the election petitioner-opposite party has received 1270 votes where as the writ petitioner received 1267 votes. Therefore, the election petitioner-opposite party was declared to have won the election by margin of three votes. But the formal declaration of the result of the election was challenged by the election petitioner for which recounting was done and it was found that while recounting, the Election Officer rejected two valid votes (one in Ward No.5 and one in Ward No.6) of election petitioner-opposite party and added six votes in favour of the election petitioner. Thus despite of two improper rejections the present opposite party-election petitioner had received 1274 votes. So far as the writ petitioner is concerned, during recounting the Election Officer rejected three numbers of votes. Therefore, his votes became 1264 but improperly and illegally the Election Officer added twelve votes in favour of the writ petitioner as a result of which his total number of votes became 1276. As a result, the writ petitioner was declared elected to the post of Sarpanch of “Uttaran” Gram Panchayat by a margin of two votes only. Hence, the election petitioner-opposite party filed Election Misc. Case No. 08/2012 before the learned Civil Judge (Jr. Division) 2nd Court, Cuttack with a prayer to declare the election of the writ petitioner as void and to set aside the same and further to declare the election petitioner-opposite party to be duly elected Sarpanch of “Uttaran” Gram Panchayat having received majority of valid votes. 4. The writ petitioner filed written statements denying the plaint allegations. After settlement of issues, the matter was fixed for hearing. In order to substantiate the allegation, the election petitioner-opposite party examined four witnesses including himself and exhibited many documents on his behalf. Thereafter, he filed a memo intimating the court that he does not want to adduce further evidence. Therefore, the learned Civil Judge(Jr. Division) 2nd Court, Cuttack called upon the writ petitioner to adduce evidence on his behalf. The writ petitioner examined three witnesses including himself and also exhibited certain documents. On his behalf one Sunil Behera was examined as D.W.3 and was cross-examined in part and further cross-examination was deferred to 24.09.2013. Therefore, the learned Civil Judge(Jr. Division) 2nd Court, Cuttack called upon the writ petitioner to adduce evidence on his behalf. The writ petitioner examined three witnesses including himself and also exhibited certain documents. On his behalf one Sunil Behera was examined as D.W.3 and was cross-examined in part and further cross-examination was deferred to 24.09.2013. On that date when D.W.3 was present for further cross-examination, the election petitioner-opposite party filed a petition to mark the document like marked copy of Voter List which is in custody of Court as exhibit. Therefore, further cross-examination was deferred. On 18.11.2013 the writ petitioner filed his objection to the petition filed by the election petitioner-opposite party. Vide order dated 05.12.2013 while considering the materials available on record, learned Civil Judge (Jr. Division) 2nd Court, Cuttack passed the impugned order vide Annexure-3 directing to issue a letter to the B.D.O.-cum-Election Officer, Kantapada Block to remain present on 07.12.2013 with the key of sealed box containing marked copy of electoral roll, ballot papers and other documents relating to Kantapada Block sought to be proved by the election petitioner-opposite party. 5. Mr. B. Bhuyan, learned counsel for the writ petitioner referring to the order passed by the learned Civil Judge(Jr. Division) 2nd Court, Cuttack in Annexure-3 stated that the court below though recorded the conclusion as follows: “On close perusal of the said judgment, it is found that nowhere in the aforesaid decision, it has been held that the marked copy of Electoral Roll is public document, further there is no provisions under laws to show that marked copy of Electoral Roll has been prepared by Presiding Officer in discharge of his public duties. Hence formal proof of the said marked copy of Electoral Roll is necessary as per the provisions of law”. But ultimately learned Civil Judge (Junior Division) passed the following order: “Hence, the petition is partly allowed as stated above write a letter to B.D.O.-cum-Election Officer, Kantapada to remain present on 07.12.2013 with the key of sealed box containing marked copy of Electoral Roll sought to be proved by the petitioner, ballot papers and other documents relating to Kantapada Block. Put up on 07.12.2013 for evidence from the side of Respondent”. Put up on 07.12.2013 for evidence from the side of Respondent”. Therefore, while passing such order, the learned court below has exceeded his jurisdiction inasmuch as there was no prayer of the election petitioner-opposite party to summon the B.D.O.-cum-Election Officer and further evidence from the side of election petitioner has already been closed long since and there was no prayer for reopening the evidence of the election petitioner thereby the learned court below lacked jurisdiction to set the clock back. He also stated that the election petitioner-opposite party herein during his evidence had not taken any steps to prove the said documents either through his own witnesses or by summoning the B.D.O. Rather by issuing such direction, the court below is not justified to patch up the lacuna in absence of any prayer. He further stated that as per the provision contained in Section 37 of the Orissa Grama Panchayat Act, the procedure envisaged with regard to the applicability of the C.P.C. in an Election Proceeding and more so Rule-44 of the Orissa Grama Panchayat Election Rules “any contesting candidate or his authorized polling agent may object to the identity of the voter”. Since no such allegation was before the Presiding Officer, at a belated stage the step taken by the court below suo motu is not permissible. By doing so the learned court below has exceeded his jurisdiction. In support of his contention leaned counsel for the writ petitioner relied upon the judgment of this Court in the cases of Sri Nilakantha Rath v. Natha Maharana, 72 (1991) CLT 509 and Ramesh Lal Shantuka v. Suresh Lal Shantuka, 1984 (II) OLR 967. 6. Mr. Bidyadhar Mishra, learned Sr. Counsel appearing for the opposite party specifically stated that in the election dispute the election petitioner-opposite party has prayed to declare the election of the writ petitioner void on two counts, namely, irregularities during recounting and reception of void votes during course of polling in the name of dead voters and absentee voters for which he relied upon the pleadings in Clause 4.D and 4.E of the plaint. In order to establish his contention and to elicit the truth about the votes in the name of dead voters and absentee voters an application was filed by the election petitioner-opposite party to bring out marked copy of electoral roll of ward no.11 of “Uttaran” Gram Panchayat and to confront the same to O.P.W.3. To such petition, objection was filed and on considering the same, the impugned order was passed by the learned Civil Judge (Jr. Division) 2nd court, Cuttack. Mr. Mishra, learned counsel for the opposite party relied upon the case of Vikheshe Sema v. Hokishe Sema, AIR 1986 SC 1842 and Kirtan Sahu, and others V. Thakur Sahu and others AIR 1972 Orissa 158. 7. In view of the rival contentions of the parties, it is to be considered whether the learned Civil Judge (Jr. Division) 2nd Court Cuttack is justified in issuing a direction to write a letter to B.D.O.-cum-Election Officer, Kantapada to remain present on 07.12.2013 with the key of the sealed box containing marked copy of electoral roll, ballot papers and other documents sought to be proved by the election petitioner-opposite party herein. Chapter-V of the Orissa Gram Panchayats Act, 1964 deals with conduct of elections and election disputes. Section 37 of the Act envisages powers of Civil Judge (Jr. Division) which reads as follows: “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 suit in respect of the following matters, namely: (a) Discovery and inspection; (b) Enforcing the attendance of witness, and requiring the deposit of their expenses; (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)”. On perusal of the said provision it is found that the learned Civil Judge (Junior Division) shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 when trying suit in respect of the matters mentioned therein. On perusal of the said provision it is found that the learned Civil Judge (Junior Division) shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 when trying suit in respect of the matters mentioned therein. Clauses (a) to (e) of Section 39 of the said Orissa Gram Panchayat Act deal with the grounds for declaring election void whereas Section 40 deals with the grounds for which a candidate other than the returned candidate may be declared to have been elected. In exercise of power conferred under Section 150 read with Section 27 of the Orissa Gram Panchayat Act, the State Government framed rules called the Orissa Gram Panchayats Election Rules, 1965 in which the procedure has been envisaged for conduct of smooth Grama Panchayats election. Rule 44 of the said Rules reads as follows: (1) Any contesting candidate or his authorized polling agent may object to the identity of a voter on the only ground that he is not the person he claims to be as per entry in the electoral roll. For every objection a fee of Rs.2 shall be deposited with the Presiding Officer. The presiding Officer shall decide the objection summarily and his decision shall be final. If the objection is rejected the deposit shall be forfeited. If, on the other hand, the objection is allowed, the deposit shall be refunded to the person who deposited the amount. (2) In case of forfeiture of deposit under Sub-rule(1), a receipt in Form No.5 prescribed under the Orissa Grama Panchayat Rules, 1968 shall be issued to the person who has made the deposit”. It is found that contention has been raised by the election petitioner-opposite party with regard to the irregularities in the counting of the votes and casting of the votes against some dead persons and persons who are not available in the locality. Rule 44 gives power to the opposite party to raise objection before the Presiding Officer. It is found in the present case that neither the election petitioner-opposite party herein nor his polling agent has raised any objection before the Presiding Officer with regard to the identity of any voters. 8. Being the election petitioner-opposite party herein, he has right to begin under Order-18 Rule1 of the CPC. It is found in the present case that neither the election petitioner-opposite party herein nor his polling agent has raised any objection before the Presiding Officer with regard to the identity of any voters. 8. Being the election petitioner-opposite party herein, he has right to begin under Order-18 Rule1 of the CPC. As per Order-18 Rule-2 of the CPC after the evidence on the side of the plaintiff, the other party shall state his case and produce his evidence. Under Order18 Rule-3 of the CPC a right to lead the rebuttal evidence is only permissible and the right to lead rebuttal evidence only permissible if such option is exercised before the beginning of evidence of other side. This view has been taken by this Court which has been referred to by the writ petitioner in Sri Nilakantha Rath (supra) and Ramesh Lal Shantuka (supra). In the present case after the closure of the evidence long since by the election petitioner-opposite party herein when the writ petitioner examined his witness and the last witness D.W.3, namely, Sunil Behera was cross-examined, at this juncture without considering the objection raised by the writ petitioner the impugned order was passed in Annexure-3. But even though the provision of CPC is not applicable ipso facto but its principle will apply and in view of the provision of Section 37 of the Orissa Gram Panchayat Act which provides that the Civil Judge (Junior Division) shall have the powers which are vested in a Court under the CPC, 1908 when trying a suit in respect of the materials enumerated in Clauses (a) to (g) as per the provisions contained in Order-16 Rule-1 any party has got right to obtain summon from the court in respect of the witnesses. The list of these witnesses have to be presented after statement of issues and Sub-rule 2 makes it clear that same can only be obtained by way of an application. Therefore, a party desirous of obtaining any summons for the attendance of any person shall file an application in Court stating therein the purpose for which the witness is proposed to be summoned. Thus the language used in Sub-Rule-2 makes it mandatory. In view of such position, in the present case there is no such application by the election petitioner-opposite party herein for issuance of summons. Thus the language used in Sub-Rule-2 makes it mandatory. In view of such position, in the present case there is no such application by the election petitioner-opposite party herein for issuance of summons. In absence of such application as envisaged under Order-16 Rule-1 CPC, the court should not have directed for issuance of summon by writing a letter to the B.D.O.-cum-Election Officer, Kantapada which is absolutely without jurisdiction and contrary to the provisions of law. 9. In view of such position, the learned Civil Judge (Junior Division) has committed gross illegality and irregularity in directing to write letter to the B.D.O.-cum-Election Officer to produce the marked copy of the electoral roll, ballot papers and other documents relating to the Kantapada Block which is sought to be proved by the election petitioner-opposite party herein. Mr. Bidyadhar Mishra, learned Sr. Counsel for the opposite party relied upon the case of Vikheshe Sema (supra) which lays down that once it comes to notice of court that voting has been caused in the name of dead voters and absentee voters or double voting it becomes the bounden duty of the court to cause inspection and find out the same. Therefore, it is essentially required to confront the marked electoral roll of Ward No.11 to O.P.W.3-Sunil Kumar Behera. He also relied upon the judgment of this Court reported in Kirtan Sahu (supra) wherein it is held that the electoral roll is a public document and reliance is placed on Rule-43 of the Orissa Gram Panchayat Election Rules which prescribes that after the issue of the ballot papers, the Presiding Officer shall tick-mark the name of the voters in the working copy of the electoral roll. Therefore, after the marked copy of the electoral roll has been called for by the judicial order confirmed by this Court, inspected by the present writ petitioner on his application dated 25.04.2012, no exception can be taken by the writ petitioner as to why it will not be marked as exhibit or as to why it cannot be confronted to the witness O.P.W.3. Therefore, he submitted that the order does not suffer from any illegality. Therefore, he submitted that the order does not suffer from any illegality. I may state here that once the evidence from the side of the election petitioner-opposite party is closed though law envisaged to adduce rebuttal evidence but at this stage when the writ petitioner being an elected candidate examining his witnesses, the learned Civil Judge (Junior Division) has committed a gross illegality and irregularity by passing an order to write a letter to the B.D.O.-cum-Election Officer more so when the election to the office of Sarpanch is regulated by the provisions envisaged in Chapter-V of the Orissa Gram Panchayats Act read with the Orissa Gram Panchayats Election Rules, 1965. When the process of recording of evidence of witnesses from the side of the returned candidate is continuing at the midst the opposite party has no right to make any objection and as such the direction given by the learned Civil Judge (Junior Division) to issue a letter to call for the B.D.O.-cum-Election Officer, Kantapada for production of the documents is absolutely misconceived one and as such the learned Civil Judge (Jr. Division) has acted in excess of jurisdiction. Accordingly, the impugned order is liable to be quashed and is hereby quashed and the matter is remitted back to the learned Civil Judge (Junior Division) for disposal in accordance with law in the interest of justice, equity and fair play. In view of the above, writ petition is allowed. No cost. Petition allowed.