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2016 DIGILAW 119 (ORI)

KIRANBALA ROUT v. RASNAMAYEE ROY

2016-02-10

I.MAHANTY, RAGHUBIR DASH

body2016
JUDGMENT : I. Mahanty, J. - In the present appeal, the appellant has sought to assail the judgment dated 6.12.2012 passed in W.P.C. No. 20648 of 2012 whereby the learned Single Judge upheld the order dated 24.9.2012 passed by the learned Civil Judge (Jr. Division), Jajpur in Election Misc. Case No. 6 of 2012. By the said order, the learned Civil Judge (Jr. Division) had rejected the appellant?s petition under Section 31 of the Orissa Gram Panchayats Act, 1965. 2. The present case in a nutshell is that, the appellant and the respondent both contested for the post of Sarpanch of Kalamatia Gram Panchayat under Bari Block in the district of Jajpur in the year 2012 Gram Panchayat election. The appellant being the successful candidate, the respondent sought to challenge the appellant?s election by filing Election Misc. Case No. 6 of 2012 before the Election Tribunal, Jajpur i.e. the Court of the learned Civil Judge (Jr. Division), Jajpur alleging that the appellant was disqualified to hold the post of Sarpanch as she had given birth to three children after the year 1995. Admittedly, the election result was declared on 21.2.2012 and election petition was presented on 2.3.2012. It is averred that the election petition was filed without the necessary deposit of security for costs as required under Section 31 of the Orissa Gram Panchayat Act and the said security towards cost was deposited by way of challan on 5.3.2012 i.e. after three days of filing of the election petition. 3. It was contended by the appellant that this delay of three days in depositing the security money was not in consonance with Section 31 of the Orissa Gram Panchayat Act and accordingly, she filed election petition before the Election Tribunal seeking dismissal of the election petition. Being unsuccessful before the election Tribunal, W.P.(C) No. 20648 of 2012 came to be filed before this Court and the same came to be dismissed vide order dated 6.12.2012. Consequently, the present challenge in the present Writ Appeal. 4. The learned Single Judge has dealt with in detail every contention advanced by the appellant as well as the respondent and came to conclude as follows: "22. Consequently, the present challenge in the present Writ Appeal. 4. The learned Single Judge has dealt with in detail every contention advanced by the appellant as well as the respondent and came to conclude as follows: "22. In view of the above, this Court is of the opinion that since the election petition was presented on 2.3.2012 without security deposit, which was paid on 5.3.2012 i.e. after three days of the filing of the election petition and both filing of election petition and payment of security deposit were made within the period of limitation, there is substantial compliance of Section 31 of the Orissa Grama Panchayats Act and therefore, the Election Tribunal is justified to entertain the election petition and reject the objection filed by the returned candidate." 5. The essential challenge in the present appeal pertains to interpretation of Section 31 of the Orissa Gram Panchayat Act which reads as follows: 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. (2) No candidate who has been elected to be a member, Sarpanch or Naib-Sarpanch of a Grama Panchayat shall be debarred from holding office as such member. Sarpanch or Naib-Sarpanch merely by reason of any election petition having been filed against him unless his election has been declared void by the [Civil Judge (Junior Division)]" 6. (2) No candidate who has been elected to be a member, Sarpanch or Naib-Sarpanch of a Grama Panchayat shall be debarred from holding office as such member. Sarpanch or Naib-Sarpanch merely by reason of any election petition having been filed against him unless his election has been declared void by the [Civil Judge (Junior Division)]" 6. Placing reliance on the aforesaid provision, it is contended on behalf of the appellant that there was no scope for the election Tribunal to exercise any concession or discretion with regard to the statutory compliance required for deposit of security for cost together with the election petition. It is asserted that both the Election Tribunal as well as the learned Single Judge put great emphasis on the fact that, post filing of the election petition i.e. 3 days after the cost came to be deposited is within the period of limitation. It is contended that such deposit of cost subsequent to the date of filing of the election petition, cannot cure the requirement of Section 31 of Orissa Gram Panchayat Act, in other words, the word "together" would be made redundant, if it is held that the security deposit can be made at any later date after the filing of the election petition. 7. Learned counsel for the appellant in support of his contention placed reliance on an unreported judgment of this Court in the case of Dr. Nirmal Chandra Satpathy v. Jitu Patnaik alias Jitendranath Patnaik and others, in OJC No. 4025 of 1993, disposed of by judgment dated 6.9.1993 in which, Hon?ble the Chief Justice B.L. Hansaria (as he then was) while dealing with the challenge to the election of the post of Chairman of Joda Notified Area Council, interpreted the provision of Section 19 of the Municipal Act, 1950 and came to hold that, "Section 19 of the Municipal Act, did exclude by necessary implication the provision of Section 5 of the Limitation Act inasmuch as if application of this Section were to be conceded, the limitation provided by section 19 of the Act would virtually be set at naught, because it would then become open to the District Judge to extend the period of limitation on sufficient cause being shown". Learned counsel for the appellant also placed reliance on the judgment of the Hon?ble Supreme Court in the case of M.Y. Ghorpade v. Shivaji Rao M. Poal and others, AIR 2002 SC 3105 . In this matter, a challenge arising out of the election under the Representation of the People Act, 1951 has been made, wherein His Lordship concluded that the requirement including security deposit at the time of presentation of the petition is mandatory. 8. Learned counsel for the respondent, on the other hand, while placing reliance on the judgment rendered by the learned Single Judge sought to highlight the difference between various provisions contended in the Orissa Municipal Act, 1950; the Representation of the People Act, 1951 and the Orissa Gram Panchayat Act, 1965. In this respect, it was submitted that neither Orissa Municipal Act, 1950 nor the Representation of the People Act, 1950 vests power to condone any delay in both, filing of the petition seeking to challenge an election and the statutory deposit as required. He further submitted that, in the present case, challenge has been made to an election arising out of the Orissa Gram Panchayat Act, 1965 and in terms of the 2nd proviso to Section 31 thereof, the election Tribunal is specifically vested with the authority to exercise his discretion to condone delay. For appreciation, the same is quoted as hereunder: "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." 9. On perusal of the judgments cited by the appellant, it is clear therefrom that whereas in the case of Dr. Nirmal Chandra Satpathy (supra), this High Court was dealing with the matter arising under the "Orissa Municipal Act, 1950" and not the "Orissa Gram Panchayat Act, 1965". Under the Orissa Municipal Act, 1950, this Court came to conclude that Section 19 thereof did not conceive of vesting any discretion with the Election Tribunal for condoning any delay and in the absence of any such authority, this Court came to hold that the limitation provided by Section 19 of the Orissa Municipal Act, could not be watered down since the same would introduce great uncertainty as the election could then be challenged virtually at any time. Insofar as the case of M.Y. Ghorpade (supra) is concerned, the said case is clearly distinguishable, inasmuch as, Hon?ble the Supreme Court was dealing with the requirement of Section 117 and 86(1) of the Representation of People Act, 1951 and came to conclude that the requirement of making the necessary security deposit at the time of presentation of the petition was mandatory. It is once again reiterated herein that the present case is one where challenge has been made to election under the "Orissa Gram Panchayats Act, 1965" and not under the "Representation of the People Act, 1951". 10. In the light of the discussions as noted herein above, we are of the considered view that there is absolutely no ambiguity nor justification to entertain the present Writ Appeal since the views expressed by the learned Single Judge are in consonance with the requirements of law as stipulated under the Orissa Gram Panchayats Act, 1965 and although the election petition was presented on 2nd March, 2012, the security deposit was made on 5th March, 2012 and both the filing of the election petition as well as deposit of security was within a period of limitation prescribed under the Orissa Gram Panchayats Act, 1965 and consequently, we find no error of law to justify any interference therewith. 11. Accordingly, the Writ Appeal stands dismissed but, in the circumstances without cost. Raghubir Dash, J. - I agree. Final Result : Dismissed