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2017 DIGILAW 1011 (ORI)

Sadanada Thanapati v. Diptikanta Karna

2017-09-08

SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order dated 18.7.2017 passed by the learned Civil Judge (Junior Division), Binika in E.M.J.C. No. 02/03 of 2017 whereby and whereunder the application filed by the petitioner under Order 7, Rule 11 read with Section 151 of the Code of Civil Procedure, 1908, has been rejected. 2. The ground of challenge of the said order is that the election petition does not contain any concise statement of material facts as required under the provision of Section-33 of the Orissa Grama Panchayat Act, 1964 (in short “the OGP Act, 1964”) and in absence thereof, the election petition should not have been entertained by the Court below. The petitioner lacks the full particulars of any corrupt practice as the petitioner alleges, including full statement of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each stage practice and which shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of proceedings. It has been urged that nowhere in the election petitions it has been pleaded about the names of the persons, who have been committed corrupt practices during election, on which date and which place the corrupt practice was done. The election petition is not in accordance with the provision of Section-39 of the OGP Act, 1964. The petitioner has raised an objection by filing an appropriate application under Order 7 Rule 11 read with Section 151 of the C.P.C., but the Court below has rejected the same without appreciating the matter properly. Hence, the writ petition. 3. Per Contra, Sri H.S. Mishra, learned counsel appearing for the opposite party no.1 has vehemently opposed the submission of the learned counsel for the petitioner by saying that the election petition contains all details of unfairness committed in the election, as would be evident from the election petition wherein specific statement has been made regarding irregularities of not counting the ballot papers properly. He further submits that it is not a case of corrupt practice rather, the petitioner has filed the suit for issuance of direction to count all the ballots, since according to him, as per the admitted position, all the ballot papers for the related wards has not been counted. The petitioner has filed the instant writ petition without filing any show cause before the Court below although the adjournment has been sought for on that account and when the matter has been posted for hearing, the instant writ petition has been filed. 4. Heard the learned counsel for the parties and perused the documents available on record. 5. The brief fact of the case in hand is that the Panchayat Election was conducted for the year 2017, in which, the petitioner has contested for the post of Sarpanch of Charda Gram Panchayat under Binika Block, in which, he has been declared elected as Sarpanch. The opposite party no.1 has applied for recounting, which was done in presence of opposite party no.2, after recounting, the petitioner was declared successful with a margin of one vote. The opposite party no. 1 has filed election dispute before the learned Civil Judge (Junior Division), Sonepur praying inter alia for recounting of ballots and to declare the election of the present petitioner as invalid. 6. The opposite party no. 1 has filed W.P.(C) No. 4046 of 2017 before this Court and this Court vide its order dated 7.3.2017 has passed the following order:- “Heard Sri H.S. Mishra, learned counsel for the petitioner, Sri D. Mohanty, learned counsel appearing for O.P. 1 through caveat and Sri K.K. Mishra, learned Additional Government Advocate for the State. From the submissions as well as the pleadings made in the writ petition, it appears, the petitioner has already raised an election dispute nomenclature as E.M.J.C. No. 2/2017 pending consideration of the competent authority. As the dispute requires to be adjudicated by the competent Court and a dispute is already raised, the writ petition cannot be entertained at this stage and the same stands disposed of with direction to the Civil Judge (Jr. Divn), Sonepur to conclude the proceeding, vide E.M.J.C. No. 2/2017 as expeditiously as possible preferably within a period of three months from the date of communication of this order by the petitioner. Divn), Sonepur to conclude the proceeding, vide E.M.J.C. No. 2/2017 as expeditiously as possible preferably within a period of three months from the date of communication of this order by the petitioner. The parties are directed to appear in the lower Court along with the copy of this order on 15.3.2017 and cooperate with the trial Court in timely disposal of the matter.” 7. The parties have appeared and the petitioner/opposite party no.1 files petition praying for time to file show cause on the ground stated therein, time was allowed vide order dated 05.04.2017, the matter was adjourned on one pretext or the other, but the petitioner/opposite party no.1 has not filed show cause rather, a petition under Order 7, Rule 11 read with Section 151 of C.P.C. has been filed on 04.07.2017. On contest, the same was disposed of by the Court below vide order dated 18.07.2017 by rejecting the petition filed under Order 7, Rule 11 read with Section 151 of C.P.C. on the ground that the petitioner has clearly expressed in his claim about the irregularities and illegalities done during the election and other details about this matter can be brought into light after taking evidence from both sides. The matter was posted for further hearing on 24.7.2017. The petitioner/opposite party no.1 filed this writ petition assailing the said order dated 18.07.2017. 8. It is evident from the plaint of election petition wherein the specific statement has been made at paragraphs 3, 4 and 5 stating therein that in Ward No. 1 as per Form No. 7, the presiding officer issued 305 number of ballots to the voters, after closer of polling, the said presiding officer has counted the ballots issued to the voters and found that the total ballot is 286 and as such, there are shortage of 19 ballots. Likewise, similar statement has been made for Ward Nos. 2, 3, 4, 5, 9, 10 and 11. 9. This Court has thought it proper to go through the statutory provision of the OGP Act, 1694 before appreciating rival submission of the parties. Chapter-V of the OGP Act, 1964 contains conduct of elections and election disputes, wherein Section-30 contains provision to file an election petition to be presented in accordance with the provisions of this Chapter. 9. This Court has thought it proper to go through the statutory provision of the OGP Act, 1694 before appreciating rival submission of the parties. Chapter-V of the OGP Act, 1964 contains conduct of elections and election disputes, wherein Section-30 contains provision to file an election petition to be presented in accordance with the provisions of this Chapter. Section-33 of the OGP Act, 1964 contains contents of petition provided therein that (1) An election petition – (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The provision of Section-33 of the OGP Act, 1964 is parametria to the provision of Section-83 of the Representation of People Act, 1951. 10. The ground taken by the petitioner in the instant writ petition is assailing the order passed by the learned Court below that the full particulars of corrupt practice ought to have been included, but by going through the election petition, it is not available. He submits that the corrupt practices have been defined under the provision of Section-41 of the OGP Act, 1964 which reads as follows:- “4.1. Corrupt practices – The following shall be deemed to be corrupt practices for the purpose 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 of 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. (2) Undue 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 of 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 what 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 his 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 vehicle 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.” 11. This Court has appreciated the ground raised by the parties and scrutinized it with the election petition which has been annexed as Annexure-1 and found that the petition contains material concerning irregularities in counting the ballot papers of the different wards, as would be evident from paragraphs 3, 4 and 5 of the said petition wherein it has been stated that the number of the ballot papers have been issued by the presiding officer is found to be less after the conclusion of the counting. The ground taken by the petitioner has been scrutinized on the strength of the statutory provision as to whether it is coming under the fold of the provision of Section-33 or 41 of the OGP Act, 1964 or not. 12. In the considered view of this Court that there is no question of applicability of the provision of Section-41 of the OGP Act, 1964 in the facts of the case in hand, since the case which has been made by the opposite party no.1, before the Court below, is not of corrupt practices rather, it is the case of commission of irregularities in counting the ballot papers, which after counting has not tallied with the actual number of ballots issued by the presiding officer. 13. In view of such pleadings made in the election petition, it cannot be said that the opposite party no. 1/petitioner has not stated the material facts in the petition. 14. 13. In view of such pleadings made in the election petition, it cannot be said that the opposite party no. 1/petitioner has not stated the material facts in the petition. 14. Learned counsel for the petitioner has given much emphasis upon the provision of Section-33(b) of the OGP Act, 1964 by submitting that the names of the parties, alleged to have committed such corrupt practice, have not been disclosed and as such, on this ground, the petitions is fit to be dismissed, but according to the considered view of this Court, the same cannot be said to be a ground for rejecting the petition for the reason that the petitioner has alleged allegation of commission of irregularities in the election process by giving the statement regarding the number of the issuance of ballot papers which has found to be less at that time of its counting which needs an inquiry, further the provision suggests that it is not mandatory requirement rather it is obligatory, since the provision contains the words “is as possible of the names including as full a statement as possible”. 15. So far as the second contention regarding not following the provision as contained in Section-33 (c) of the OGP Act, 1964 which pertains to the provision of verification of the petition in the manner laid down in Code of Civil Procedure, 1908 for the verification of pleadings. It is evident from the provision of Order 6 Rule 15 of the C.P.C. that the person verifying shall specify, by reference to be numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. 16. This Court, on examination of the verification part of the petition, has found that the petitioner has verified and declared that the contents of the petition from paragraphs 1 to 7 are all true to the best of his knowledge and believe and thereafter put his signature. As such, in the considered view of this Court, the provision laid down under Section-33(c) of the OGP Act, 1964 read with the provision of Order 6 Rule 15 of the C.P.C. has been complied with. As such, in the considered view of this Court, the provision laid down under Section-33(c) of the OGP Act, 1964 read with the provision of Order 6 Rule 15 of the C.P.C. has been complied with. So far as the relying upon the judgments by the petitioner in this issue rendered in the cases of Jitendra Bahadur Singh v. Krishna Behari and others, reported in AIR 1970 SC 276 ; Chandrika Prasad Yadav v. State of Bihar and others, reported in AIR 2004 SC 2036 ; Jagannath Sethi v. Adikanda Palata and others, reported in 2014 (I) OLR-521; Babaji Dhal v. Election Officer-cum-B.D.O., Pattamundai Block, Kendrapara & another, reported in 2015 (I) ILR-CUT-341, Azhar Hussain v. Rajiv Gandhi passed in Civil Appeal No. 2774 (NSE) OF 1985, reported in (1986) 1 SCC 573. The same not applicable on facts, since the facts of these cases are lack of material facts, but here in the instant case, the facts is of commission of irregularities, has been raised in the election petition, as discussed above. 17. Further, the parties have approached this Court prior to filing of this writ petition being W.P.(C) No. 4046 of 2017 wherein this Court while disposing of the writ petition vide its order dated 7.3.2017 has directed the learned Court below to conclude the proceeding as expeditiously as possible, preferably within a period of three months from the date of communication of the order with further direction to the parties to appear in the lower Court along with the copy of the order and cooperate with trial in timely disposal of the matter. 18. It has been gathered from the order sheets, as has been annexed to the writ petition, that the orders have been placed before the trial Court on 09.03.2017 and thereafter the time was sought for by the petitioner for filing of show cause, but the show cause has not been filed till the month of July, 2017 rather, an application under Order 7 Rule 11 read with Swction-151 of the C.P.C. has been filed, which shows that the petitioner is not interested for early disposal of the matter, as has been directed by this Court in W.P.(C) No. 4046 of 2017. Otherwise also this Court, while disposing of the writ petition in W.P.(C) No. 4046 of 2017, has specifically observed: “as the dispute requires to be adjudicated by the competent Court and a dispute already raised, the same has been directed to be decided at an early date”. In that view of the matter, the issue needs to be adjudicated by the trial Court. In the background, if the order passed in W.P.(C) No. 4046 of 2017, the reference of the judgment of Hon’ble Supreme Court rendered in the case of K.K. Modi v. K.N. Modi & ors., reported in 1998 (3) SCC 573 needs to be made which lays down the proposition that once a party by consent that a particular petition is to be heard by the Court, by giving up the objection under Order 7 Rule 11 of C.P.C., the very party cannot be subsequently permitted to seek striking off the pleadings containing the cause of action under the garb that pleadings containing the cause of action is unnecessary, vexatious or scandalous. The facts of the case in hand is more or less same as because party of this case had approached to this Court and agreed to pursue the election dispute pending before the Court below. 19. It is not a dispute that in case of non-existence of cause of action and non-disclosure of cause of action, election petition is to be dismissed at the threshold, but as has already been expressed hereinabove, the election petition contains material facts and this Court has passed an order for adjudication of the issue, the said order has not been challenged before the higher forum. Hence, according to the considered view of this Court, the dispute needs adjudication. Accordingly, the writ petition is not worth to be considered. In the result, the writ petition fails and it is dismissed. Petition dismissed.