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2018 DIGILAW 834 (ORI)

Tapaswini Panda v. Collector, Subarnapur

2018-12-07

A.K.RATH

body2018
JUDGMENT Dr. A.K. RATH, J. - This petition challenges the order dated 16.8.2018 passed by the Collector, Subarnapur, opposite party no.1, whereby and whereunder the opposite party no.1 has disqualified the petitioner to hold the office of the Sarpanch, Sindurpur Gram Panchayat in Binika Panchayat Samiti, Dist.-Subarnapur under Sec.25(1)(v) of the Odisha Gram Panchayats Act, 1964 (“Act”) on the ground that she begot a third child on 1.11.1998, i.e., after the cut off date. 02. Shorn of unnecessary details, the short fact of the case is that the petitioner was elected as Sarpanch in Sindurpur Gram Panchayat. Maheswar Mahakur, opposite party no.3, filed an application before the opposite party no.1 stating that the petitioner has incurred disqualification under Sec.25(1)(v) of the Act, since she begot a third child on 1.11.1998, i.e., after the cut off date 21.4.1995. It is stated that the petitioner has three children, namely, Jharana, Aruna and Jully. Jharana, Aruna and Jully were born on 20.6.1990, 18.6.1992 and 1.11.1998 respectively. Opposite party no.1 issued notice to the petitioner through the District Panchayat Officer, Subarnapur on 11.7.2018 vide Annexure-2 for appearance. While the matter stood thus, the opposite party no.1 issued notice to the C.D.P.O., Binika, Headmaster, SGA Nodal Uchha Prathamika Vidyalaya, Sindurpur and Medical Officer, CHC, Binika to appear before him on 27.7.2018 to adduce evidence. Pursuant to the notice, the C.D.P.O., Binika, Headmaster, SGA Nodal Uchha Prathamika Vidyalaya, Sindurpur, Medical Officer, CHC, Binika appeared before the opposite party no.1 on 27.7.2018. The petitioner and the Advocate of opposite party no.3 were present. The opposite party no.1 verified the admission register of SGA Nodal Uchha Prathamika Vidyalaya, Sindurpur in their presence on the same day. It was found that the date of birth of Jharana was 20.6.1990, Aruna was 18.6.1992 and Jully was 1.11.1998. The C.D.P.O., Binika submitted the report stating that the petitioner is living with three children. The Advocate of the petitioner sought time to file objection. On 4.8.2018, the petitioner filed a petition to drop the proceeding, vide Annexure-4, stating inter alia that opposite party no.3 is the husband of Smt. Geetanjali Mahakur. Geetanjali Mahakur filed election dispute under Sec.30 of the Act before the learned Civil Judge (Jr. Divn.), Sonepur. The petitioner has no locus standi to maintain the application. On 4.8.2018, the petitioner filed a petition to drop the proceeding, vide Annexure-4, stating inter alia that opposite party no.3 is the husband of Smt. Geetanjali Mahakur. Geetanjali Mahakur filed election dispute under Sec.30 of the Act before the learned Civil Judge (Jr. Divn.), Sonepur. The petitioner has no locus standi to maintain the application. On taking a holistic view of the matter, the opposite party no.1 came to hold that the third child was born on 1.11.1998, i.e., after the cut off date. The petitioner incurred disqualification under Sec.25(1)(v) of the Act. 03. Heard Mr. Himanshu Sekhar Mishra, learned Advocate for the petitioner, Mr. Ram Prasad Mohapatra, learned A.G.A. along with Mr. Uttam Kumar Sahu, learned A.S.C. for the opposite party nos.1 and 2 and Mr. Prafulla Kumar Rath, learned Advocate along with Mr. Adhiraj Behera, learned Advocate for the opposite party no.3. 04. Mr. Mishra, learned Advocate for the petitioner, argued with vehemence and submitted that no opportunity of hearing was provided to the petitioner. No enquiry was conducted in accordance with law. No procedure was followed. The matter was heard on the date of hearing and the order was pronounced on the same date. The C.D.P.O., Binika had issued notice to the petitioner, but not the opposite party no.1. Though the petitioner made an application, but then the copies of the order-sheets as well as the impugned order had not been granted to her. The documents were not verified in the presence of the petitioner. The persons, who produced the records, were not subjected to cross-examination. The complainant was not examined. He further submitted that the enquiry is summary in nature, but then the procedural niceties cannot be thrown into the wind. Though the petitioner was present, but no enquiry was made. The order is an infraction of principles of natural justice. For nonfurnishing the entire order-sheet, the petitioner was prevented from filing a detailed show-cause. The petitioner was not responsible for causing delay, but the order-sheet reflects that she has caused delay. The signature appearing in the photostat copy of the ordersheet does not appear the signature of the Collector. 05. Per contra, Mr. Mohapatra, learned A.G.A., submitted that the petitioner had not adduced any evidence. The officers, who were summoned by the opposite party no.1, had not adduced any evidence. Thus there was no need to cross-examine the officers. The signature appearing in the photostat copy of the ordersheet does not appear the signature of the Collector. 05. Per contra, Mr. Mohapatra, learned A.G.A., submitted that the petitioner had not adduced any evidence. The officers, who were summoned by the opposite party no.1, had not adduced any evidence. Thus there was no need to cross-examine the officers. Sufficient opportunity was provided to the petitioner. He further submitted that the petitioner had contested the case. In course of hearing, notice was issued by the opposite party no.1 to the C.D.P.O., Binika, Headmaster, SGA Nodal Uchha Prathamika Vidyalaya, Sindurpur, Medical Officer, CHC, Binika. The birth register of the children of the petitioner was verified with reference to the admission register of SGA Nodal Uchha Prathamika Vidyalaya, Sindurpur produced by the Headmaster of the said school in the presence of the petitioner as well as opposite party no.3. It was ascertained that the third child was born after the cut off date, i.e., 21.4.1995. In exercise of power under Sec.26 of the Act, the Collector, Subarnapur had disqualified the petitioner. 06. Mr. Rath, learned Advocate for the opposite party no.3, submitted that the petitioner has begot a third child on 1.11.1998, i.e., after the cut off date. The petitioner incurred disqualification under Sec.25(1)(v) of the Act. The documents were verified by the opposite party no.1 in the presence of the petitioner as well as opposite party no.3. It is too late in the day that principle of natural justice has not been followed. To buttress the submission, he relied on the decisions of the apex Court in the case of K.D. Sharma vs. Steel Authority of India Limited and others, (2008) 12 SCC 481, Viveka Nand Sethi vs. Chairman, J&K Bank Ltd. and others, (2005) 5 SCC 337 , State Bank of Patiala and others vs. S.K. Sharma, (1996) 3 SCC 364 and Karnataka State Road Transport Corporation and another vs. S.G. Kotturappa and another, (2005) 3 SCC 409 . 07. Before adverting to the contentions raised by the counsel for both parties, it will necessary to set out some of the provisions of the Act. Secs.25(1)(v) and 26 of the Act are quoted hereunder. “25. 07. Before adverting to the contentions raised by the counsel for both parties, it will necessary to set out some of the provisions of the Act. Secs.25(1)(v) and 26 of the Act are quoted hereunder. “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- xxx xxx xxx (v) has more than two children. xxx xxx xxx 26. Procedure of giving effect to disqualifications— (1) Whenever it is alleged that any Sarpanch or Naib-Sarpanch or any other member is or has become disqualified or whenever any such person is himself in doubt whether or not he is or has become so disqualified such person or any other member may, and the Sarpanch at the request of the Grama Panchayat shall, apply to the Collector for a decision on the allegation of doubt. (2) The Collector may suo motu or on receipt of an application under Sub-section (1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive. (3) Where the Collector decides that the Sarpanch, Naib-Sarpanch or any other member is or has become disqualified such decision shall be forthwith published by him on his notice-board and with effect from the date of such publication the Sarpanch, Naib-Sarpanch or such other member, as the case may be, shall be deemed to have vacated office, and till the date of such publication he shall be entitled to act, as if he was not disqualified.” 8. Sec.26 of the Act was the subject matter of interpretation before a Full Bench of this Court in the case of Debaki Jani vs. The Collector and another, AIR 2014 Ori.-138 (FB). The Full Bench held that Sec.26 of the Act is not concerned with either declaring the election void or granting any consequential declaration as to who has been duly elected. It merely enables the person specified in sub-sec.(1) of Sec.26 of the Act to invite a decision on the question of disqualification of a Member. The Full Bench held that Sec.26 of the Act is not concerned with either declaring the election void or granting any consequential declaration as to who has been duly elected. It merely enables the person specified in sub-sec.(1) of Sec.26 of the Act to invite a decision on the question of disqualification of a Member. Under sub-sec.(2) of Sec.26 of the Act, the Collector may suo motu or on receipt of an application under sub-sec.(1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive. It further held that many legal systems throughout the world retain the use of Latin words or phrases that originated centuries ago in the legal system of ancient Rome. The term “suo motu” is one of those terms. In Collins English Dictionary, the term “suo motu” is defined as “on its own motion” and the term generally refers to a situation wherein a judge acts without request by either party to the action before the Court. It held that the Collector has to prima facie satisfy himself and apply his mind before issuing any notice to the person whose disqualification is in question. The only rider is to observe principles of natural justice. The legislature in its wisdom thought it proper to grant ample power to the Collector to see that purity and sanctity in the election process is maintained and no unqualified person holds the post. The same also does not exclude any other person to bring the notice of the Collector about the disqualification incurred by any Sarpanch or Naib-Sarpanch or any other member of the Grama Panchayat. The Collector exercising the suo motu power is not debarred from obtaining information and materials from various sources. 09. The scope of interference in a writ of certiorari is well known. The Constitution Bench of the apex Court in the case of Syed Yakoob vs. K.S. Radhakrishnan and others, AIR 1964 SC 477 held: “7. The Collector exercising the suo motu power is not debarred from obtaining information and materials from various sources. 09. The scope of interference in a writ of certiorari is well known. The Constitution Bench of the apex Court in the case of Syed Yakoob vs. K.S. Radhakrishnan and others, AIR 1964 SC 477 held: “7. xxx xxx xxx A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to ustain the impugned finding. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to ustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. 8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. xxx xxx xxx If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.” 10. Reverting to the facts of the case and keeping in view the law laid down in the cases cited supra, this Court finds that the Collector, Subarnapur, opposite party no.1, issued notice to the C.D.P.O., Binika, Headmaster, SGA Nodal Uchha Prathamika Vidyalaya, Sindurpur, Medical Officer, CHC, Binika to remain present on 27.7.2018. The opposite party no.1 verified the records in presence of the petitioner as well as opposite party no.3. Thereafter the petitioner took time to file objection. She filed a petition to drop the proceeding, vide Annexure-4, stating inter alia that opposite party no.3 is the husband of a defeated candidate, namely, Smt. Geetanjali Mahakur. Geetanjali Mahakur filed election dispute before the learned Civil Judge (Jr. Divn.), Sonepur against the petitioner. Thus the petition at the behest of her husband was not maintainable. The petitioner had chosen not to examine her as a witness. The officers, who were summoned to appear before the opposite party no.1, had not been examined. There is nothing on record that the opposite party no.1 has refused the petitioner to adduce evidence. Thus sufficient opportunity was provided to the petitioner. 11. Non-furnishing of certified copy of the order-sheets and impugned order to the petitioner has no bearing on the case in view of the fact that the petitioner has filed the photostat copies of the order-sheets as well as the impugned order. It reveals that the opposite party no.1 has passed the order on 16.8.2018 and signed on the same. 12. In his inimitable style, Justice Krishna Iyer in Chairman, Board of Mining Examination & another v. Ramjee, AIR 1977 SC 965 proclaimed that “natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. It reveals that the opposite party no.1 has passed the order on 16.8.2018 and signed on the same. 12. In his inimitable style, Justice Krishna Iyer in Chairman, Board of Mining Examination & another v. Ramjee, AIR 1977 SC 965 proclaimed that “natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decisionmaker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt—that is the conscience of the matter”. 13. In K.D. Sharma (supra), the apex Court in paragraph 34 held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. There is no quarrel over the proposition of law. 14. In Viveka Nand Sethi (supra), the apex Court in paragraph 22 held that the principle of natural justice is no unruly horse. The same view was taken in State Bank of Patiala and others (supra) and Karnataka State Road Transport Corporation and another (supra). 15. Resultantly, the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs. Petition dismissed.