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2016 DIGILAW 166 (ORI)

Jagnyaseni Majhi v. Rukmani Naik

2016-03-01

S.K.MISHRA

body2016
JUDGMENT S.K.MISHRA, J. - In this writ application, the former Sarpanch of Boxma Grama Panchayat has assailed the findings recorded by the learned Civil Judge (Junior Division), Kuchinda in Election Misc. Case No. 01/12, as per judgment dated 27.11.2014 declaring her to be disqualified to hold the post of Sarpanch of the aforesaid Grama Panchayat, which has been confirmed by the learned Addl. District Judge, Kunchinda in Election appeal No. 1 of 2014 as per judgment dated 05.02.2015. 02.In pursuance of the notification of election for the post of Sarpanch of Boxma Grama Panchayat, the present petitioner and the opposite party nos. 1 to 6 filed nomination before the opposite party no. 7, i.e. Block Development Officer-cum-Election Officer, Kuchinda. It is stated that the opposite party no. 7 allowed the nomination of the petitioner without proper scrutiny though she was unable to read and write Oriya and the petitioner was allowed to contest the election even though the opposite party nos. 1 to 6 filed their objection against the nomination of the petitioner in course of scrutiny. It is stated that even though petitioner did not have requisite qualification, her nomination illegally considered and allowed. The petitioner secured highest votes in the election and declared as elected candidate to hold the post of Sarpanch of Boxma Grama Panchayat. After such election, the opposite party no. 1, who is the second highest votes in the election, filed Election Misc. Case before the Civil Judge (Junior Division), Kuchinda with a prayer to declare election null and void. She also prayed that as she secured 2nd highest votes, she should be declared as the elected Sarpanch of the aforesaid Grama Panchayat. 03.The opposite party nos. 2 to 6 have filed their show-cause before the Election Tribunal supporting the opposite party no. 1. It is stated in their show-cause that the petitioner was not able to read and write Oriya but opposite party no. 7 without deciding their objection allowed her nomination though she did not have requisite qualification and declared her as elected Sarpanch of Boxma Grama Panchayat. The petitioner, being the opposite party No. 1 before Election Tribunal filed her show cause denying the allegation with regard to her disqualification during the election. The opposite party no. 7 without deciding their objection allowed her nomination though she did not have requisite qualification and declared her as elected Sarpanch of Boxma Grama Panchayat. The petitioner, being the opposite party No. 1 before Election Tribunal filed her show cause denying the allegation with regard to her disqualification during the election. The opposite party no. 7, i.e. Election Officer also filed written statement, inter alia, stating that on the objection petition he proceeded with enquiry and after enquiry he accepted nomination paper of the present petitioner. He also claimed that the election was duly conducted and there was no illegality in the process of such election. On such pleadings, the Election Tribunal framed as many as seven issues. Relying upon the examination of the present petitioner in the Court, especially the cross-examination, where she stated that she was not able to read and write Oriya and that she is not capable to read and write Oriya, the learned Civil Judge (Junior Division), Kuchinda came to the conclusion that the petitioner was not able to read and write Oriya and she is not capable to read and write Oriya and hence declared her to be incapable to hold the post and disqualified. Accordingly, a casual vacancy has been created. 04.This judgment of the Civil Judge (Junior Division), Kuchinda was challenged by the present petitioner before the Addl. District Judge, Kuchinda in Election Appeal No. 1 of 2014 . As per the judgment dated 05.02.2015, the learned Addl. District Judge came to the conclusion that the findings recorded by the learned Civil Judge-cum-Election Tribunal is correct and therefore there is no need to interfere with the same. 05.Having gone through the records, the first thing that come to the notice of the Court is that the petitioner’s election has been declared void and his post has been held to be disqualified as per Section 45(t) of the Panchayat Samiti Act, 1959. There appears to be a wrong notion carried by the learned Civil Judge. In fact, Section 11 of the Orissa Grama Panchayat Act, 1964 carries pari materia provision regarding the ability of candidate to read and write Oriya. So, even though the learned Civil Judge and the learned Addl. There appears to be a wrong notion carried by the learned Civil Judge. In fact, Section 11 of the Orissa Grama Panchayat Act, 1964 carries pari materia provision regarding the ability of candidate to read and write Oriya. So, even though the learned Civil Judge and the learned Addl. District Judge, Kuchinda have resorted to Section 45(t) of the Panchayat Samiti Act, 1959 and there is corresponding provision under Section 11 (c)(ii) of the Orissa Grama Panchayat Act, which provides that no member of a Grama Sasan shall be eligible to stand for election as a member, if he is unable to read and write Oriya. Sub-Section (1) of Section 4 of the Orissa Grama Panchayat Act provides that in every Grama there shall be a Grama Sasan which shall be composed of persons registered by virtue of the Representation of the People Act in so much of the electoral roll for any Assembly Constituency for the time in force as it relates to the Grama and unless the Election Commission directs otherwise the said portion of the roll shall be deemed to be the electoral roll in respect of the Grama. Section 10(1) of the Orissa Grama Panchayat Act provides that every Grama Panchayat shall be composed of members, namely, (a) a member to be elected by the person referred to in Sub-Section (1) of Section 4 from amongst themselves who shall be the Sarpanch; and (b) a member to be elected from each of the wards by the persons on the electoral roll for the ward from amongst themselves. So, there are pari materia provisions in both the Acts as far as the eligibility of a candidate to become a Sarpanch or Samiti Shabya is concerned. In both the Acts, there is a provision that unless one is conversant with reading and writing Oriya, he cannot be elected as Sarpanch of a Grama Panchayat or to become member of a Panchayat Samiti. So, the error committed by the Courts below is only of nomenclature and not of substance. It is held that the trial Court and appellate Court shall be deemed to be passed the order as per the Section 11(b) of the Orissa Grama Panchayat Act. 6.It is apparent from the records that the opposite party nos. 2 to 6 raised objection before the opposite party no. It is held that the trial Court and appellate Court shall be deemed to be passed the order as per the Section 11(b) of the Orissa Grama Panchayat Act. 6.It is apparent from the records that the opposite party nos. 2 to 6 raised objection before the opposite party no. 7 at the time of filing of nomination but the opposite party no.7 without application of mind, as a statutory power has ignored the objections filed by them and allowed the petitioner to contest the election. There is no dispute at this stage that in her depositions before the Court, the petitioner failed to read nomination paper marked as Ext. A and explained that the letters of the said nomination were small in size for which she is unable to read. She also was shown Oriya ‘Dhartri’ dated 18.08.2014 and was asked to read its headlines on the from page but she failed to read the same. She further explained that she is able to write simple Oriya letters but cannot read and write composite Oriya letters, which are known as “Juktakhyar”. It is further not disputed that the petitioner was directed by the trial Court to read a simple sentence, i.e. “CUTTACK SAHARA BADA MAHARAGA”. In the first instance, the petitioner failed to write the same but later on she could write the said sentence. After taking into consideration these aspect of the case as presented before the Court, the learned trial Court came to the conclusion that the petitioner is unable to read and write Oriya and she is not eligible to hold the post of Sarpanch of the aforesaid Grama Panchayat. It is also apparent from the judgment of the learned Addl. District Judge that after careful taking into consideration the factual aspect of the case and after re-appreciation of evidence, he has come to the same conclusion as the learned trial Court. In other words, the appellate Court also concurred with the findings of the trial Court. 7.In course of hearing, the learned counsel for the petitioner relied upon the case of Kalabati Jena Vs. Dhaneswar Jena and three others, CLT (2009) Suppl. 140, wherein the Single Judge remanded the matter to the lower appellate Court by holding thus: “7. The phrase “Read and Write Oriya has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed there under. Dhaneswar Jena and three others, CLT (2009) Suppl. 140, wherein the Single Judge remanded the matter to the lower appellate Court by holding thus: “7. The phrase “Read and Write Oriya has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed there under. It is, therefore, incumbent on the part of the Court to interpret the said phrase keeping in view the legislative intent for introducing such a disqualification clause in case of Sarpanch and Naib-Sarpanch inasmuch as to find out the object to be achieved by such introduction of the disqualification clause. A person, who can to some extent, read and write Oriya cannot be said to be unable to read and write oriya . The standard of reading and writing Oriya having not been specifically provided in the Act and the Rules, the Court cannot introduce a minimum standard of a candidate with regard to reading and writion Oriya. It is a common knowledge that even a candidate who has passed Oriya in matriculation (H.S.C.) may commit various mistakes in writing his answers in Oriya. However, from the same, it cannot be concluded that such candidate does not know how to write in Oriya. Thus, the only interpretation of the phrase “Read and Write Oriya’ can be that the candidate should not be illiterate and should at least know how to read and how to write Oriya as language to a standard as would be required for a person to function as a Sarpanch or a Naib-Sarpanch of a Grama Panchayat. In the instance case, the matter, which was provided to the writ Petitioner, was a portion of the O.G.P. Manual written in Oriya for reading the same before the Election Tribunal. A portion from the said book was also dictated to her by the Bench Clerk of the Court. The Court has found that the Petitioner read the portion with much difficulty and in writing she committed several mistakes. It is a common knowledge that legal terms in Oriya are unique and an inhabitant of a Grama, who is otherwise eligible to contest the election for the seat of Naib-Sarpanch or Sarpanch, can ever be used to such terms. The Court has found that the Petitioner read the portion with much difficulty and in writing she committed several mistakes. It is a common knowledge that legal terms in Oriya are unique and an inhabitant of a Grama, who is otherwise eligible to contest the election for the seat of Naib-Sarpanch or Sarpanch, can ever be used to such terms. This Court also finds that the Election Tribunal has adopted an erroneous method by asking the bench Clerk to dictate a portion of the Orissa Grama Panchayat Manual written in Oriya, to the petitioner. It would have been appropriate if the Election Tribunal would have asked the Petitioner to read a portion of the text from any other Oriya Book which does not contain technical words and the Election Tribunal should have himself dictated a portion of such book to the petitioner to write it down. As pointed out by Mr. Mishra, learned counsel for the Petitioner, both; the Courts below have also lost sight of the fact that in several places in the Old Age Pension Register, the petitioner has given her signature in Oriya.” However, the aforesaid case is distinguishable in the sense that, in that case, the Election Tribunal directed Court master or the peskar or the bench clerk of the Court to dictate Oriya portion to the return candidate. However, in the present case, the learned Civil Judge himself has dictated paragraphs of the newspaper and has come to the conclusion that the petitioner is unable to read and write. 8.In the case of Mrs. Suryakanti Mishra vs. State of Orissa and seven others, 2005(Supp.) OLR 906, a Division Bench of this Court has held that even if a person has educational qualification, but is unable to read and write Oriya, he would not be eligible to stand for election. In that case, the petitioner during her cross examination was unable to read and write Oriya. Hence, the Division bench of this Court did not interfere with the concurrent findings. Similar view has been taken by this Court in a Division Bench Judgment of Damburu Majhi vs. Tarini Charan Majhi, 2006 (Supp. II) OLR 266. In that view of the matter, this Court is of the opinion that there is hardly any scope for interfering with the findings recorded by the learned Civil Judge, which have been confirmed by the learned Addl. II) OLR 266. In that view of the matter, this Court is of the opinion that there is hardly any scope for interfering with the findings recorded by the learned Civil Judge, which have been confirmed by the learned Addl. District Judge, Hence, there is no merit in the writ application and same is dismissed. Furthermore, the interim order dated 11.03.2015 passed in Misc. Case No. 3725/2015 stands vacated. There shall be no order as to the costs. Application dismissed.