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2018 DIGILAW 842 (ORI)

Basanti Swain v. Santilata Panda

2018-12-12

BISWANATH RATH

body2018
JUDGMENT Biswanath Rath, J. - This is a writ petition at the instance of an unsuccessful party in the matter of allowing an application under Section 5 of the Indian Limitation Act, involving Election Case No. 15 of 2017 under the provisions of the Grama Panchayats Act, 1964 passed by the Civil Judge (Jr. Divn.), Nimapara vide Annexure-4. 2. In short, background involving the case is opp.Party No. 1 filed Election Case No. 1 of 2017 seeking relief inter alia for declaring the petitioner therein as elected Sarpanch of Cl.andradeipur Grama Panchayat and the cost of litigation in favour of the petitioner therein against the Opp.Party No. 1 and 3 therein. For filing of the election dispute after the expiry of period prescribed in the Orissa Grama Panchayat Act, 1964, the Opp.Party No. 1 herein as the election petitioner also filed an application under Section 5 of the Indian Limitation Act seeking condonation of delay in filing the Election Dispute. Filing the application under Section 5 of the Indian Limitation Act, the Opp.Party No. 1 to satisfy the delay in filing the election petition contended that the opp.party No. 1 was a lady and belonging to backward class. It is also contended therein that the election involved though concluded on 19.02.2017, result was declared thereafter, on counting of votes being closed. The election petitioner finding the present petitioner unable to read and write Odia, being mandatory fora Ward Member in the Panchayat meeting convened on 31.03.2017, filed an application under Section 26(2) of Orissa Grama Panchayat Act before the Collector and little thereafter, the opp.Party No. 1 also made an attempt invoking the provisions of Right to Information Act to collect the information regarding the education of the opposite party No. 1 and only after receiving information in this regard, was constrained to file the election dispute only on 18.07.2017. To satisfy the ground of delay, while reiterating the stand taken in the Section 5 of the limitation application, the opp.Party No. 1 also submitted that the reason in filing the election dispute with delay being bona fide and not intentional, the delay should be condoned in order to have a fair trial of the election dispute. On her appearance, present petitioner, opp.Party No. 1 therein filing written objection to the delay condonation application contended that the opp. On her appearance, present petitioner, opp.Party No. 1 therein filing written objection to the delay condonation application contended that the opp. Party No. 1 herein had several stages of information and cause of actions for filing the election dispute and in the worse, in the event, she could undertake a proceeding under Section 26(2) of the Act before the Collector in the month of March, nothing prevented her from filing the election dispute either on the same day or at least immediately thereafter. It is on the above premises, the opp.Party No. 1 herein prayed for rejection of the limitation application. As a consequence, the election petition should have also been rejected as claimed by the Opp.Party No. 1. 3. Trial Court i.e. the Election Tribunal on the basis of the pleading available in the application as well as in the objection at the instance of the respective parties and based on the submissions made therein by the impugned order under Annexure-4 while condoning the delay allowed the application under section 5 of the Indian Limitation Act. 4. Filing the writ application, the petitioner, the opp Party therein i.e. the elected candidate apart from raising the ground already raised in the objection at the instance of opp. Party No. 1 to the application under Section 5 of the Limitation Act appended at Annexure-2 further submitted that the result of the election being published on 23.02.2017, the opp. Party No. 1 being a participant therein was well aware of the limitation in filing the election dispute. Further, looking into the other developments as explained by the opp.Party No. 1 in her application under Section 5 of the Limitation Act, particularly, coming to know of the alleged deficiency in the petitioner in the Grama Panchayat meeting held on 31.03.2017 further having been completed, took up a proceeding under Section 26(2) of the Orissa Grama Panchayat Act before the Collector-cum-District Magistrate, Puri. Sri Senapati, learned counsel, appearing for the petitioner contended that there were different stages of information with the opp. Party No. 1 and as such the delay remain unexplainable. It is at this stage, Mr. Sri Senapati, learned counsel, appearing for the petitioner contended that there were different stages of information with the opp. Party No. 1 and as such the delay remain unexplainable. It is at this stage, Mr. Senapati, learned counsel for the petitioner taking this Court to the statutory provision as contained in Section 31 (1) contended that even though there is application of the provision for condonation of delay but for the proviso contained in Proviso 2 Section 31 (1) of the Act, consideration of the delay application is not in the absolute discretion of the Court undertaking such process, it is on the other hand, for the clear provision therein, the Civil Judge (Jr. Divn.) undertaking such process must find sufficient cause existed for failure to present the petition within the stipulated period Taking this Court to number of decision of the Hon'ble Apex Court as well as of this Court as in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra reported in AIR 1974 S.C. 480 . Anwari Basavaraj Patil and others v. Siddaramaiah and others, AIR 1994 SC 12, Union of India v. M/s. Popular Construction Co., AIR 2001 S.C. 4010 , Akhatar Ali v. State of M.P. & Ors., AIR 2000 MP 257 , Parul Gupta v. Siddharth Sareen & others, AIR 2016 (NOC) 590 (DEL) and result in the case of Sukanta Kumar Rout v. Collector-cum-District Election Officer, Cuttack & others in 2006 (1) OLR 432 , Sri Senapati, learned counsel appearing for the petitioner submitted that the grounds raised herein have the support of all these decisions and hence prays this Court for interfering in the impugned order for being contrary to provision of the Statute as well as the position of law indicated herein above. 5. Sri Gautam Mukherjee, learned counsel appearing for the opp.party No. 1, on the other hand, on reiteration of his clients stand taken into the application under Section 5 of the Limitation Act appearing at page 15 of the brief submitted that for the reason assigned therein, the opp.Party No. 1 had a bona fide action in filing the election dispute in the month of July, further filing the election petition not being intentional, it cannot be said that there is improper consideration of the grounds by the trial Court. Sri Mukherjee taking this Court to the grounds involved in the election dispute also contended that for the valid grounds involving the election petition, unless the delay in filing the election dispute be condoned, will result in allowing an unqualified person to continue as Sarpanch. Sri Mukherjee thus requested this Court for rejecting the writ petition confirming thereby the impugned order herein. 6. Considering the rival contention of the parties, taking into account the narratives made herein above, this Court finds the opp.Party No. 1 while filing the application under Section 5 of the Indian Limitation Act has taken the following pleadings to justify the ground of delay: 3. That, pertinent to state here that for the aforesaid election the last date of nomination was 17.01.2017 and scrutiny of nomination was 18.01,2017. Petitioner and opp.parties had filed their nomination in time. On the date of scrutiny Opp.Party No. 1 raised objection to the educational qualification of the petitioner which was rejected by the Election Officer as the same was based on no supporting documents. 4. That, after taking charge of the Office while the petitioner is discharging her function smoothly the Opp.Party No. 1 without any basis filed an election case before the Civil Judge (Jr. Division), Nimapara much after the limitation period on the allegation that the petitioner is not able to read and write Odia and hence disqualified to hold the post of Sarapanch. The said case has been registered as Election Misc. Case No. 15/2017. 6. That, after receipt of the notice the application for condonation of delay petitioner filed objection denying the allegations of the Opp.Party No. 1. Pertinent to state here that the petitioner was previously an Ward Member of Ward No. 01 of said Panchayat from 2002 to 2007. Moreover, opp.party No. 1 has miserably failed to explain the failure in filing the election case beyond statutory period of limitation. For better appreciation of the objection of the petitioner and the proceedings of Chandradeipur Gram Panchayat of the year 2002 are annexed herewith as Annexure-2 and 3 respectively. 7. That, although this Hon'ble Court as well as the Hon'ble Apex Court have laid down the law not to lightly interfere in the election matters and the mandate of people, but the learned Civil Judge in total non-application of mind and on through misconception of law illegally entertained the Election Misc. 7. That, although this Hon'ble Court as well as the Hon'ble Apex Court have laid down the law not to lightly interfere in the election matters and the mandate of people, but the learned Civil Judge in total non-application of mind and on through misconception of law illegally entertained the Election Misc. Case filed after 5 months of publication vide Order dated. 12.01.2018, copy of which is annexed as Annexure-4" Reading the aforesaid grounds, this Court finds that in fact, opp.Party No. 1 was well aware of the date of declaration of result, date of the notification of the election of the Sarapanch candidate. Besides, she could also come to know the alleged efficiency in the Opp.Party No. 1 from the meeting of the Panchayat held on 31.03.2017, this Court, therefore, observes that there is no bona fide action in filing the election petition after five months. 7. It is at this stage, considering the provision at Section 31(1) of the Grama Panchayat Act, 1964, this Court finds the provision reads as herein under. "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." Looking to the provision contained therein, this Court finds that though it is true that the presentation of an election petition is permissible even after expiry of 15 days, yet the provision makes it clear that it must be on the finding of sufficient cause existed for the failure to present the petition within the period prescribed. This Court here observes that there is no absolute discretion with the Civil Judge (Jr. Divn) in the matter of condonation of delay and the Civil Judge (Jr. Divn.) must find sufficient cause in failure in presentation of the election dispute in time. From the discussions made herein above, this Court finds petitioner has several stages to approach the Election Tribunal and there is no sufficient cause, in coming to file the dispute in time. It is at this stage, taking into consideration of the decision in the case of Sukanta Kumar Rout v. Collector-cum-District Election Officer, Cuttack & Others, 2006 (I) OLR 432 , this Court finds in similar situation, the Division Bench this Court in paragraph 7 & 8 have held as follows:-"7. In Jagdish Sawhney (supra), the appellant in his application for condonation of delay averred that he came to know of the decree when his representative visited the Registrar of Companies and after this knowledge, he filed the appeal. His plea was that since he was not a party to the suit and was unaware of the decree, there was good ground for condonation of delay. The Court accepting the plea as genuine, condoned the delay. In Gangadeep Pratisthan Pvt. Ltd. (supra), there was a delay of 7 months in presentation of the appeal and explanation of the appellant for part of that period was satisfactory but the explanation offered for rest part was not satisfactory, yet the High Court exercised its discretion and condoned the delay primarily for the reason that the facts alleged by respondent No.1 were of such nature that in the interest of justice, the matter required to be invested. Considering the grave nature of allegations and public interest, the Apex Court declined to interfere with the discretion extended by the High Court, the facts situation of those cases are materially different from the present case. Here opposite party No. 3 was himself a candidate for the election of Sarpanch and he was aware of the publication of the result of the election. Though Section 31 of the Orissa Grama Panchayat Act provides a period of 15 days only for presentation of any election dispute petition, before the Civil Judge (Junior Division)-cum-Commissioner, he did not file such petition for nearly two and half years and then came up with a plea that he had made some representations to the Collector. Though Section 31 of the Orissa Grama Panchayat Act provides a period of 15 days only for presentation of any election dispute petition, before the Civil Judge (Junior Division)-cum-Commissioner, he did not file such petition for nearly two and half years and then came up with a plea that he had made some representations to the Collector. Even if the entire contents of his petition under Section 5 of the Limitation Act is accepted, still there is no explanation for the period from 31.05.2002 to 02.4.2004. It is to be remembered that an election dispute petition relates to continuance or otherwise of an elected people's representative in the office and for the reason the Act has provided specific period of limitation for presentation of the petition. In the proviso to Section 31 also it has been specifically indicated that sufficient and satisfactory cause must be shown for any delay that may occur in presentation of the election petition. So, while considering the petition for condonation of delay in the election dispute case, the concerned Court has to meticulously examine the explanation offered for the delay and only on being satisfied about the explanation for the entire period of delay that the delay should be condoned. Jurisdiction in that aspect vested with the Court has to be exercised judiciously or else that amounts to illegal exercise of jurisdiction. In the present case, the learned Civil Judge-cum-Commissioner without carefully examining the sufficiency of the explanation offered by opposite party No. 3 for the delay, allowed the petition by simply observing that opposite party No. 3 had made some representation to the Collector and that he learned about the number of children of the present petitioner from the people of the locality. The approach of the learned Civil Judge (Junior Division) 1st Court, Cuttack, was casual and his order does not speak how such plea of the opposite party No. 3 was sufficient to explain the delay for the period from dated 31.05.2002 to 02.04.2004. Therefore, the aforesaid finding suffers from illegality. 8. For all the aforesaid reasons, we are of the considered opinion that there was no good ground for condonation of delay in presentation of the election petition by opposite party No. 3. Accordingly, we quash the impugned order dated 17.09.2004 passed by the learned Civil Judge (Junior Division) 1st Court, Cuttack. Therefore, the aforesaid finding suffers from illegality. 8. For all the aforesaid reasons, we are of the considered opinion that there was no good ground for condonation of delay in presentation of the election petition by opposite party No. 3. Accordingly, we quash the impugned order dated 17.09.2004 passed by the learned Civil Judge (Junior Division) 1st Court, Cuttack. " This decision squarely applies to the case of the opp.Party. Flere, considering other citations shown by Sri Senapati, learned Counsel appearing for the petitioner and reflected herein above, this Court observes that since in all these decision, there is clear finding to the effect that there was no application of Limitation Act all to such proceedings, all those decisions except this 2006 (1) OLR 432 have no application to the case at hand. 8. For the observation of this Court with the finding that there is no bona fide action and no sufficient cause in filing the election dispute after five months by the Election petitioner and for the application of the decision 2006 (1) OLR 432 to the case at hand, this Court finds there has been no proper appreciation of the material fact as well as appreciation of law of the land and the provision of the Statute at Section 31 (1) of the Orissa Gram Panchayat Act, 1964 by the Election Tribunal involving the impugned order by the trial Court, for which the impugned order remain unsustainable. In the circumstances, this Court while interfering in the impugned order, set aside the order at Annexure-4. As a consequence, the election petition will also not survive. 9. The writ petition succeeds. However, there is no order as to costs.