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2018 DIGILAW 864 (ORI)

Gourahari Pradhan v. Achyutananda Jena

2018-12-21

BISWANATH RATH

body2018
JUDGMENT Biswanath Rath, J. - This writ petition is filed assailing the order dated 20.8.2018 passed by the Civil Judge (Jr.Divn.), Tigiria involving Election Misc. Case No.2/2017, vide Annexure-7. 2. Short background involved in the case is that the defeated candidate, the private opposite party as the petitioner initiated an election dispute under the Orissa Gram Panchayat Act involving the elected candidate, the present petitioner seeking thereby a declaration that the respondent therein, the petitioner herein has not received the majority of valid votes, further to declare the election of the sole respondent as Sarapanch of Achalakota to be void and set aside and further to declare the election petitioner, who has received the majority of valid votes elected as Sarapanch of Achalakota Gram Panchayat. Further facts reveal, based on filing of the election case registered as Election Misc. Case No.2/2017 and upon filing of the show cause by the respondent therein, further on completion of evidence from both the sides, the election petitioner, i.e, the private opposite party herein filed Miscellaneous Application requesting therein the trial court to accept the application for re-counting of all valid and rejected ballot papers of Achalakota Gram Panchayat and further for the petitioner therein making a strong prima facie case for re-counting, the Election Officer be directed to produce the Ballot Papers from his custody for re-counting purpose. Upon service of copy of this application, the present petitioner, the respondent therein filed objection resisting the maintainability of the application, taking the ground that such applications cannot be considered by way of interim relief and on the premises of prematureness of application. The respondent therein, i.e, petitioner herein also objected entertainment of any such application on the further submission that such application cannot be considered merely because the evidence is adduced. It was also contended therein that it is on the other hand, such application is required to be considered only during argument involving the evidence. It is on the premises that there is no commencement of argument of the election dispute, the petitioner also objected the stage of consideration of such application. It was also contended therein that it is on the other hand, such application is required to be considered only during argument involving the evidence. It is on the premises that there is no commencement of argument of the election dispute, the petitioner also objected the stage of consideration of such application. Considering the rival contentions of the parties, the Civil Judge (Jr.Divn.), Tigiria, vide his order dated 20.8.2018 allowed the application thereby directing the B.D.O.-cum-Election Officer, Tigiria to cause production of the used Ballot Papers in respect of the election for the post of Sarapanch under Achalakota Gram Panchayat under Tigiria Block, which is under challenge in the present writ petition. 3. Resisting the order dated 20.8.2018, Sri R.K.Rath, learned Senior Counsel appearing for the petitioner being assisted by Sri H.N. Mohapatra, learned Advocate on reiteration of the grounds taken in the objection in the court below on the maintainability as well as the stage of consideration of such application as reflected herein above submitted that for the settled position of law, no such application should have been entertained in absence of advancement of argument involving the case and further for no dealing with evidence by the trial court, the impugned decision is so otherwise remains unsustainable. Sri Rath, learned Senior Counsel for the petitioner also contended that even though there is no bar for filing such application, looking to the main prayer involving the election dispute; the trial court remained fundamentally wrong in not understanding the stage of consideration of such application and the materials to be taken into account in considering such application. Sri Rath, learned senior Counsel for the petitioner thus prayed this Court for interfering with the impugned order and setting aside the same. 4. Sri B. Mishra, learned Senior Counsel assisted by Sri P. Bharadwaj, learned Counsel appearing for the sole opposite party while resisting the submission of Sri Rath, learned Senior Counsel for the petitioner contended that for the prima facie disclosure of the grounds involving filing of such application in the application under consideration involving the impugned order and further as the impugned order is based on reason, there is no infirmity in the impugned order requiring interference of this Court. Sri Mishra, learned Senior Counsel to support his such contentions relied upon three decisions of this Court in the cases of Narayan Chandra Nayak v. Harsh Chandra Jena & two others, 2009 (Supp.-I) OLR 513, Tarachand Majhi v. Lalit Pradhan,2010 (Supp.-11) OLR 795, 2010 (II) CLR 803 and Smt. Bibhuti Nayak v. Smt. Basanta Manjari Nayak, 2014 (II) Olr 916 . Taking this Court to the settled position of law involved in the above three reporting cases, Sri B. Mishra, learned Senior Counsel for the opposite party while justifying his submission and the impugned order further submitted that in the event this Court finds any irregularity in the decision making process, the Court may remand the matter for fresh hearing of the issue keeping the interim application alive. 5. Considering the rival contentions of the parties, this court finds, the election petitioner, i.e., the sole opposite party filed the Election Misc.. Case No.2/2017 before the Civil Judge (Jr.Divn.), Tigiria with the following prayer: "It is therefore prayed this Hon'ble Court may graciously be pleased to admit this Election Petition, issue notice to the sole respondent, call for all relevant election documents as stated in paragraph 14 of the election petition with respect to the election-2017 of Sarapanch of Achalkote Gram Panchayat in all 17 booths of Achalkote Gram Panchayat from the custody and possession of the Election Officer-cum-B.D.O., Tigiria Panchayat Samiti, cause inspection and recounting of all used ballot papers both valid ballots and rejected ballots, declare that the sole respondent has not received majority of valid votes, declare the election of sole respondent to be void and set aside the election of the sole respondents Sarapanch of Achalkote Gram Panchayat and further declare the election petitioner has received majority of valid votes and is elected as Sarapanch of Achalkote Gram Panchayat " It is needless to indicate here that the prayer of the petitioner was based on allegations made in paragraphs 5, 6, 7 & 8 therein. Based on the pleadings of the respective parties and upon completion of the evidence from the respective side, the election petitioner filed Misc. Application for direction for production of ballot papers for re-counting purpose. It is at this stage, this Court looking to the impugned order finds, the impugned order was based on mere consideration of the rival contentions of the parties. Application for direction for production of ballot papers for re-counting purpose. It is at this stage, this Court looking to the impugned order finds, the impugned order was based on mere consideration of the rival contentions of the parties. Since the issue involved therein remains germane in the main application and the order in the Misc. Application was heavily dependent on grant of main relief involving the election dispute itself, this Court is of the opinion that such application needs to be considered may not exactly at the argument of the election dispute but however involving an argument taking into consideration the pleading as well as evidence in support of such pleading. There is no scope for considering such application, independent of evidence involving the election dispute. It is at this stage, taking into account the decision relied upon by Shri Mishra, learned Senior Counsel for the contesting opposite party, vide Narayan Chandra Nayak (supra), this Court finds, the Division Bench of this Court in disposal of the Writ Appeal involved therein in paragraph 3 observed as follows : "3. Being aggrieved, Respondent No.1 filed election petition No.2 of 2007 before the Court of learned Civil Judge (Senior Division), Anapdpur for declaring that the election of the appellant as void and after recounting of votes, the said respondent No.1 be declared elected. The case was contested by the appellant, issues were framed and parties adduced evidence in support of their case. At that stage, an application was filed by Respondent No. 1 for recounting of votes on the ground that due to improper rejection of his valid votes during the recounting process, he was defeated by a margin of one vote only. The said application was resisted by the appellant. The Tribunal after hearing the parties and perusing the pleadings and evidence allowed the application vide order dated 7.3.2008 observing that material facts had been pleaded in the election petition in this regard and the same stood substantiated by oral evidence that the valid votes of the election petitioner were illegally rejected and invalid votes were added in favour of the returned candidate during the process of recounting. Thus, it was not a roving and fishing inquiry, rather the case was based on material facts. Thus, it was not a roving and fishing inquiry, rather the case was based on material facts. The said order dated 7.3.2008 was challenged by the appellant by filing the writ petition which has been dismissed by the impugned judgment and order dated 30.4.2008. Hence this appeal." Similarly in the case of Tarachand Majhi (supra) in another Division Bench of this Court in disposal of a different Writ Appeal involving such issue in paragraphs 6 observed as follows "6. We have heard both the learned counsel for the appellant and the learned counsel for the respondent on the merits of the case. After careful consideration of the rival legal contentions urged with reference to the grounds urged in the writ appeal by the appellant's . counsel questioning the correctness of the order of the election Tribunal, whose order is affirmed by the learned Single Judge by dismissing the writ petition filed by the appellant, with a view to find out as to whether the order impugned in this appeal or the order of the Tribunal impugned in the writ petition needs interference by this Court on the ground that substantial question of law does arise in the appeal for the reason that the findings which have been recorded by the learned Single Judge in the impugned order by affirming the order of the Election Tribunal suffers from palpable error in law as there is no pleading or issue framed ? It is urged on behalf of the appellant that the said order of the Tribunal is erroneous in law for the reason that the Tribunal has exceeded in its jurisdiction in granting the relief of recounting, as prayed for by the election petitioner (present respondent) before the Election Tribunal, which contention was rejected in its order, whose order is affirmed by the learned single Judge. The said contention is carefully examined by us. We have carefully examined the order of the Election Tribunal. The said contention is carefully examined by us. We have carefully examined the order of the Election Tribunal. The Election Tribunal after adverting to the relevant facts and circumstances of the case and also the evidence of the appellant and the respondent adduced in the election petition before it, has examined the claim of the respondent as to whether he is entitled for recounting of votes of certain booths on the basis of acts pleaded, namely, the respondent has secured 1190 votes whereas the appellant secured 1229 votes and while counting the total votes polled the counting officials have added more than 40 invalid votes to the account of the appellant and 24 valid votes to the account of the respondent were rejected. Therefore, the election Tribunal on the basis of the pleadings and the evidence of P.W.1, the respondent herein who has corroborated the averment in the election petition and whose evidence is corroborated by the evidence of P.Ws.2 and 4 regarding addition of invalid votes in favour of the appellant and rejection of valid notes of the respondent in favour of the appellant and that.of PW. 5 who was corroborated the evidence of P. W. 1 regarding declaration of 10 votes in favour of the appellant by the election officials though the appellant has not secured the same and after satisfying about prima facie case and relevant aspects of the case for ordering recounting of voters has allowed the application of the respondent. The said order was challenged by the appellant before this Court in a writ petition and the same was examined by the learned Single Judge in the impugned order with reference to the legal contentions urged in the writ petition and also after adverting to the decisions of the Apex Court in the case of T.H. Musthaffa v. M.P.Varghese & others (1999) 8 SCC 692 . In support of the contention wherein the Apex Court has held that unless pleading contains necessary foundation for raising an appropriate issue, no amount of evidence is sufficient for raising the issue and granting the relief sought for by the respondent and considering the evidence that 40 invalid votes were added to the credit of the appellant herein and 24 valid votes of the respondent were rejected illegally, the learned Single Judge held that there was improper addition of votes in favour of the appellant and rejection of valid votes in favour of respondent and the case of the respondent is that the appellant was illegally elected as Sarpanch of Lingamarani Gram Panchayat. After referring to the case of the Apex Court in the case of Ram Sarup Gupta (dead) by L.Rs. v. Bishnu Narain inter College & Ors., AIR 1987 Sc 1242 the Apex Court has observed that some times pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question and that of Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 , wherein it was held that the general rule for that relief should be founded on the pleadings of the parties, but where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is :Did the parties know that the matter in question was involved in the trial and did they lead evidence about it, the learned Single Judge held that there were sufficient materials in the pleading showing rejection of valid votes and acceptance of invalid votes. The learned Single Judge has further placed reliance upon the Division Bench decision of the Bombay High Court in Appa Babaji Misal Patil & Ors. The learned Single Judge has further placed reliance upon the Division Bench decision of the Bombay High Court in Appa Babaji Misal Patil & Ors. v. Dagdu Chandru Misal & Ors., AIR 1995 Bombay 333, the learned Single Judge has accepted the evidence is corroborated by the evidence of P.Ws 2 and 4 regarding addition of invalid votes in favour of the appellant and rejection of valid notes of the respondent in favour of the appellant and that.of P.W. 5 who was corroborated the evidence of PW. 1 regarding declaration of 10 votes in favour of the appellant by the election officials though the appellant has not secured the same and after satisfying about prima facie case and relevant aspects of the case for ordering recounting of voters has allowed the application of the respondent. The said order was challenged by the appellant before this Court in a writ petition and the same was examined by the learned Single Judge in the impugned order with reference to the legal contentions urged in the writ petition and also after adverting to the decisions of the Apex Court in the case of T.H. Musthaffa v. M. P.Varghese & others (1999) 8 SCC 692 . In support of the contention wherein the Apex Court has held that unless pleading contairis necessary foundation for raising an appropriate issue, no amount of evidence is sufficient for raising the issue and granting the relief sought for by the respondent and considering the evidence that 40 invalid votes were added to the credit of the appellant herein and 24 valid votes of the respondent were rejected illegally, the learned Single Judge held that there was improper addition of votes in favour of the appellant and rejection of valid votes in favour of respondent and the case of the respondent is that the appellant was illegally elected as Sarpanch of Lingamarani Gram Panchayat. After referring to the case of the Apex Court in the case of Ram Sarup Gupta (dead) by L.Rs. After referring to the case of the Apex Court in the case of Ram Sarup Gupta (dead) by L.Rs. v. Bishnu Narain inter College & Ors., AIR 1987 sC 1242 the Apex Court has observed that some times pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question and that of Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 , wherein it was held that the general rule for that relief should be founded on the pleadings of the parties, but where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is :Did the parties know that the matter in question was involved in the trial and did they lead evidence about it, the learned Single Judge held that there were sufficient materials in the pleading showing rejection of valid votes and acceptance of invalid votes. The learned Single Judge has further placed reliance upon the Division Bench decision of the Bombay High Court in Appa Babaji Misal Patil & Ors. v. Dagdu Chandru Misal & Ors., AIR 1995 Bombay 333, the learned Single Judge has accepted the conclusion arrived at by the learned election Tribunal in allowing the application of the respondent. The learned Single Judge has examined all the legal contentions urged on behalf of the parties to find out as to whether the Election Tribunal's order is vitiated on account of erroneous reasoning or error in law and found that the said order is perfectly legal and valid as the same is based on the pleadings, evidence on records and legal principle laid down by the Apex Court and Bombay High Court in the cases referred to supra and rightly held that the order impugned in the writ petition does not call for interference. In our considered view, the said view of the Jearned Single Judge is perfectly legal and valid and does not call for interference by this Court in this appeal as we find that there is no palpable error present in the order or there is no compelling circumstances to interfere with the same. Therefore, the writ appeal is devoid of merit and is accordingly dismissed. In the third decision in Smt. Bibhuti Nayak (supra) once again another Division Bench of this Court in disposal of another Writ Appeal in paragraph 20 observed as follows : "20. In our estimate, the election petition read with the evidence adduced by the election petitioner did provide a factual foundation to project a prima facie case for ordering recount of the ballot papers of Nuagaon Gram Panchayat used for election to the post of Member, Basudevpur Panchayat Samiti." 6. Taking into account the decision of this Court in all the above three decisions, this Court finds, this Court in its Division Bench is of one view that consideration of the request for calling for ballot papers and order of re-counting should be based on consideration of the pleading along with the evidence adduced by the parties concerned. It is in the circumstances, this Court considering the impugned order finds, the Tribunal though finally allowed the application for calling for the ballot papers for re-counting purpose but has not at all considered the evidence vis-a-vis the pleading for the purpose. This Court, therefore, observes, there is no proper consideration by the Tribunal in considering such application. The decision of the Tribunal also remains opposed to the settled provision of law. 7. in the circumstances, this Court interfering with the impugned order dated 20.8.2018 passed by the Civil Judge (Jr. Divn.) Tigiria sets aside the same but however since the application is required to be considered at proper stage and giving due importance to evidence, while keeping it open directs the Tribunal to reconsider the application afresh by giving opportunity of hearing to the respective parties. 8. The writ petition succeeds but however there is no order as to cost.