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2016 DIGILAW 345 (ORI)

Goreti Xess v. Jyoti Xaxa

2016-04-29

S.K.MISHRA

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JUDGMENT S.K. MISHRA, J. - In this writ petition the petitioner, being the Sarpanch of Karamdini Grama Panchayat in the district of Sundargarh, assails the order dated 23.7.2012 passed by the learned Civil Judge (Jr. Division), Sundargarh in Election Misc. Case No. 10/2012 rejecting here prayer to take up the issue of maintainability of the Election Misc. Case under Sub-rule 2 of Rule of Order 14 of the Code of Civil Procedure, 1908 (hereafter referred to as the “Code” for brevity) and thereby dismissing her application. 2.Opposite party No. 2, Jyoti Xaxa, filed a petition under Section 30 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as the “Act” for brevity) challenging the election of the present petitioner to the post of Sarpanch for Karamdihi Grama Panchayat in the district of Sundargarh. Nomination papers were field on 7.1.2012 to 12.1.2012 by the intending candidates and, accordingly, the present petitioner filed her nomination paper on 12.01.2012 before the Election Officer, Karamdihi Grama Panchayat. It is alleged that in her nomination paper she has given a false affidavit that she is not involved in any criminal case. It is stated that previously she is involved in a Vigilance Case and this fact was suppressed in her affidavit filed along with the nomination paper. 3.On 13.1.2012 on the date of scrutiny of the nomination paper the election petitioner has filed her written objection before the Election Officer, Karamdihi alleging that the present petitioner has filed a false affidavit and her nomination paper should be rejected. It was not taken into consideration by the Election Officer and he allegedly accepted the illegal/improper nomination paper that led to filing of election petition against the present petitioner and others. During pendency of the election petition, the present petitioner filed an application before the Election Tribunal, inter alia, alleging the point that there is no prohibition in the statute against acceptance of an affidavit by the Election Officer on the ground of false statement in the affidavit filed by the returned candidate. During pendency of the election petition, the present petitioner filed an application before the Election Tribunal, inter alia, alleging the point that there is no prohibition in the statute against acceptance of an affidavit by the Election Officer on the ground of false statement in the affidavit filed by the returned candidate. 4.Notification No. 1-SEC, Bhubaneswar dated 1st January, 2004, issued by the State Election Commission, was relied upon wherein at Clause (3), it has been provided that non-furnishing of affidavit by the candidate shall be considered to be a violation of that Order and the nomination paper of the candidate concerned shall be liable to rejection at the time of scrutiny by the Election Officer/Returning Officer. Clause (6) provided that the Election Officer/Returning Officer shall neither undertake verification of the correctness or otherwise of the information furnished in the above mentioned affidavit nor reject the nomination paper on the ground of furnishing wrong information or suppressing material information in the affidavit. 5.Therefore, the retuned candidate, i.e. the present petitioner, filed an application urging before the learned Civil Judge (Jr. Division), Sundargarh –cum-Election Tribunal to take up the issue under Order 14, Ruel 2 of the Code and to dismiss the Election Misc. Case as not maintainable. However, the learned Civil Judge (Jr. Division), Sundargarh rejected the application and held that this is mixed question of facts and law and cannot be decided as a preliminary issue. 6.Rule 2 of Order 14 of the Code provides that the Court to pronounce judgment on all issues. But sub-rule(2) is an exception to the same. It is appropriate to quote the same :- 2. (1) xxx xxxxxx xxx (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, And for that purpose may, it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. 7.Now the maintainability of the writ petition because of non availability of any provision declaring the election be not void for furnishing a false affidavit is a pure question of law and it touches the jurisdiction of the Court. 8.Section 39 of the Act provides for declaring election void, which reads as follows:- “39. Grounds for declaring election void-(1) The Civil Judge (Junior Division) shall declare the election of a returned candidate void, if he is of the opinion- (a) that on the date of his election the candidate was not qualified or was disqualified to be elected under the provisions of this Act or the rules made thereunder; or (b) that any corrupt practice has been committed by the candidate; or (c) that any nomination paper has been improperly rejected or accepted; or (d) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes for any other reason was not duly elected by a majority of lawful votes; or (e) that there has been any non-compliance with or breach of any of the provisions of this Act or of the rules made thereunder; Provided that in relation to matters covered by Clause (a) the Civil Judge (Junior Division) shall have due regard to the decision, if any, made under Section 26 before making a declaration under this Section. (2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election.” 9.It is apparent that in this case, the election petitioner’s main thrust is that on clause (c) of sub-Section (1) of Section 39 of the Act which provides that election can be challenged or set aside if any nomination paper has been improperly accepted by overruling the objection of the election petitioner at the time of scrutiny. The fact that the petitioner had filed her nomination, she had field an affidavit and in her affidavit she has omitted to mention about the pendency of criminal case against her are not disputed in this case. The fact that the petitioner had filed her nomination, she had field an affidavit and in her affidavit she has omitted to mention about the pendency of criminal case against her are not disputed in this case. The only question that remains to be decided is whether on the ground for not reflecting the fact of a criminal case pending against the petitioner can be a ground to set aside an Election under Section 39 of the aforesaid Act. Section 11 of the Act provides for qualification for membership in the Grama Panchayat, which reads as follows: “11. Qualification for membership in the Grama Panchayat –Notwithstanding anything in Section 10 no member of a Grama Sasan shall be eligible to stand for election- (a) as a Sarpanch if he – (i) is a candidate for election [***] as a member of the Grama Panchayat in respect of any ward; or (ii) [***] (iii) is a candidate for election or holds office as a Sarpanch of any other Grama Panchayat; (b) as a Sarpanch or Naib-Sarpanch, if he has not attained the age of twenty-one years or is unable to read and write Oriya; (c) as a member- (i) for more than one ward in the Grama or for more than one Grama Panchayat; or (ii) if he is unable to read and write Oriya; and (iii) if he has not attained the age of twenty-one years. “ 10.A bare perusal of the aforesaid Section does not reveal any where a person is disqualified for being Member of the Grama Panchayat because of filing a false affidavit at the time of nomination papers. 11.Section 25 of the Act provides for disqualification for membership of Grama Panchayat. It is appropriate to quote the same. “25. “ 10.A bare perusal of the aforesaid Section does not reveal any where a person is disqualified for being Member of the Grama Panchayat because of filing a false affidavit at the time of nomination papers. 11.Section 25 of the Act provides for disqualification for membership of Grama Panchayat. It is appropriate to quote the same. “25. Disqualification for membership of Grama Panchayat – (1) A person shall be disqualified for being elected or nominated as, a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he- (a) is not a citizen of India; or (b) is not on the electoral roll in respect of the Grama or of the ward, as the case may be ; or (c) is of unsound mind; or (d) is an applicant to be adjudicated as an insolvent or is an undischarged insolvent ; or (e) is a deaf-mute, or is suffering from tuberculosis; or in the opinion of the District Leprosy Officer is suffering from an infectious type of leprosy; or (f) is convicted of an election offence under any law for the time being in force; or (g) is convicted for an offence involving moral turpitude and sentenced to imprisonment of not less than six months unless a period of five years has elapsed since his release or ins ordered to give security for good behavior under Section 110 of the Code of Criminal Procedure, 1898 (5 of 1898); or (h) holds any office of profit under the State or Central Government or any local authority; or (i) is a teacher in any school recognized under the provisions of the Orissa Education Code for the time being in force; or (j) holds the office of a Minister either in the Central or State Government; or (k) has been dismissed from the service of the State Government or of any local authority; or (l) being a member of a Co-operative Society, has failed to pay any arrear of any kind accrued due by him to such society before filing of the nomination paper in accordance with the provisions of this Act and the rules made thereunder; Provided that in respect of such arrears a bill or a notice has been duly served upon him and the time, if any, specified therein has expired; or (m) is in the habit of encouraging litigation in the Grama and has been declared to be so on enquiry by the Collector in the prescribed manner or by any other authority under any law for the time being in force; or (n) is interested in a subsisting contract made with or in any work being done for the Grama Panchayat or the Samit, or any Government except as a shareholder other than a Director in an incorporated company or as a member of a Co-operative Society; or (o) is a paid and trained legal practitioner on behalf of the Grama Sasan; or (p) is a member of the Orissa Legislative Assembly or of either of the House of Parliament; or (q) is a member of the Samit elected under Clause (h) of Sub-Section (1) of Section 16 of the Orissa Panchayat Samit Act, 1959 (Orissa Act 7 of 1960); or (r) is disqualified by or under any law for the time being in force for the purposes of an election to the Legislature of the State; or (s) is disqualified by or under any law made by the Legislature or the State; or (t) is in arrear of any dues payable by him to the Grama Panchayat; or (u) has more than one spouse living; or (v) has more than two children : Provided that the disqualification under Clause (v) shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayat (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year. (2) A Sarpanch or any other member of a Grama Panchayat shall be disqualified to continue and shall cease to be a member if he- (a) incurs any of the disqualifications specified in Clauses (a) to (j) Causes (m) to (p) and Clauses (t) to (v) of Sub-Section (1); or (b) has failed to attend three consecutive ordinary meetings held during a period of four months commencing with effect from the date of the last meeting which he has failed to attend; or (c) being a legal practitioner appears or acts as such against the Grama Sasan; or (d) Being a member of a Co-Operative Society has failed to pay any arrears of any kind accrued due by him to such society within six months after a notice in this behalf has been served upon him by the society. (3) Without prejudice to the provisions of the foregoing Sub-Sections the Sarpanch of a Grama Panchayat shall be disqualified to continue and cease to be the Sarpanch, if he fails to attend three consecutive ordinary meetings of the Samiti, or which he is a member, without the previous permission in writing of the said Samiti. (4) Notwithstanding anything contained in the foregoing sub-Sections- (a) the State Government may remove any one or more of the disqualifications specified in Clauses (f), (g), (k) and (i) of Sub-Sections(1); (b) when a person ceases to be a Sarpanch or Naib-Sarpanch or any other member in pursuance of Clause (g) of Sub-Section (1) he shall be restored to office for such portion of the term of office as may remain unexpired on the date of such restoration, if the sentence is reversed or quashed on appeal or revision or the offence is pardoned or the disqualification is removed by an order of the State Government; and any person filling the vacancy in the interim period shall on such restoration vacate the office.” 12.This Section also do not provide that if a returned candidate has filed an affidavit with a wrong information or false information that he/she become disqualified to hold the post. On top of it, the State Election Commission, Odisha Notification No. 1. On top of it, the State Election Commission, Odisha Notification No. 1. SEC, Bhubaneswar, dated 1st January, 2004 provides that the Election Officer –cum-Returning Officer has no jurisdiction to undertake verification of the correctness or otherwise of the information furnished in the above mentioned affidavit nor reject the nomination paper on the ground of furnishing wrong information or suppressing material information in the affidavit. 13.Interpreting this provision, this Court in the case of Sridhar Jena Vs. Santosh Kumar Jena and others; (2010) 1 OLR 486 has held that if the petitioner has furnished affidavit as required under law, but has suppressed about pendency of criminal case against him, as per Clause-6 of the order of the Election Commissioner, the order of suppression cannot be a ground for rejecting the nomination paper. This Court further held that the petitioner may be criminally liable for that. But, it would not amount to corrupt practice. It was further held that his election cannot also be declared void on that ground. 14.On top of that, this Court takes not of sub-Section (2) of Section 39 of the Act. It provides that the election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality in the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election. It is not the case of the election petitioner that non-mentioning of the pendency of criminal case against the present petitioner has materially affected the result of the election. 15.Learned counsel for opposite party no. 1 in this case has contended that this act of non-mentioning of the fact of pendency of criminal case in the affidavit by the returned candidate is a corrupt practice. Unfortunately the contentions raised by opposite party no. 1 is incorrect as corrupt practice has been defined under Section 41 of the Act. It is appropriate to quote the same:- “41. Unfortunately the contentions raised by opposite party no. 1 is incorrect as corrupt practice has been defined under Section 41 of the Act. It is appropriate to quote the same:- “41. Corrupt practices – The following shall be deemed to be corrupt practices for the purposes of this Chapter, namely; (1) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person on his behalf or any gratification to any person whomsoever- (i) with the object, directly or indirectly or inducing – (a) a person to stand or not to stand as or to withdraw from being a candidate, or to retire from contest at such election; or (b) an elector to vote or refrain from voting at such election; or (ii) as a reward to – (a) a person for standing or refraining from standing as a candidate, or for having withdrawn his candidature or for having retired from contest; or (b) an elector for having voted or for refraining from voting. Explanation – For the purposes of this clause, the term gratification includes all forms of entertainment and all forms of employment for rewards; but does not include the payment of any expenses incurred bona fide for the purposes of such election. Explanation – For the purposes of this clause, the term gratification includes all forms of entertainment and all forms of employment for rewards; but does not include the payment of any expenses incurred bona fide for the purposes of such election. (2) Under influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or any other person on his behalf, with the free exercise or the electoral right of any person; Provided that – (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein, who- (i) threatens any candidate or any elector or a person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or of expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, Shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; and (b) a declaration of public policy or, a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right shall not be deemed to be interference within the meaning of this clause; (3) The systematic appeal by a candidate or by any other person on his behalf to vote or refrain from voting on grounds of caste, race, community or religion or of the use of national symbols such as the National Flag or the National Emblem, for the furtherance of the prospects or the candidate’s election. (4) The publication by the candidate or by any other person on his behalf of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal or retirement from contest of any candidate, being a statement reasonably calculated to prejudice the prospect of that candidate’s selection. (5) The hiring or procuring whether on payment or otherwise, of any vehicle or vessel by a candidate or by any other person on his behalf for the conveyance of any elector, other than the candidate or any member of his family to or from any polling station or place fixed for the poll. Explanation – In this clause, the expression “vehicle” means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise. (6) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or by any other person on his behalf of any assistance, other than the casting of a vote, for the furtherance of the prospects of the candidate’s election from any person in the service of the State Government or in the employ of any, local authority.” 16.It is apparent that not mentioning that a criminal case is pending against the returned candidate in affidavit attached to the nomination paper is not a corrupt practice within the four corners of Section 41 of the Act. So this Court holds that the election petition filed by opposite party no.1 is not maintainable and the issue being a pure question of law and can be taken up under sub-rule (2) of Rule 2 of Order 14 of the Code. Accordingly, the order dated 23.07.2012 passed by the learned Civil Judge (Jr. Division), Sundargarh in Election Misc. Case No. 10/2012 is hereby set aside and consequently the Election Petition is not maintainable and the same is rejected. 17.With such observation, the Writ Petition is allowed. However, keeping in view the aforesaid facts there shall be no orders with regard to costs. Petition allowed.