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2019 DIGILAW 322 (ORI)

Subash Chandra Biswal v. Bamadev Patra

2019-04-15

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. In the intra-Court appeal, the appellant-petitioner, i.e. the successful candidate in the election for Sarpach of Jharpada Gram Panchayat under Kantapada Panchayat Samiti, Cuttack assails the judgment passed by the learned Single Judge dismissing his writ petition, wherein he has challenged the order dated 05.07.2017 passed by the learned Civil Judge (Junior Division), 2nd Court, Cuttack in Election Misc. Case No.9 of 2017, thereby dismissing an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code" for brevity.) 2. Facts of the case are not disputed. Both the appellant-petitioner and the opposite party-respondent were candidates for the post of Sarpach of Jharpada Grama Panchayat. The appellant was declared elected on 23.02.2017. The opposite party-respondent being unsuccessful candidate filed Election Dispute under Sections 30 and 40 of the Orissa Grama Panchayat Act, 1964, hereinafter referred to as the 'O.G.P. Act' for the brevity, which was registered as Election Misc. Case No.9 of 2017 challenging the election of the present petitioner-appellant. Hereinafter the appellant-petitioner will be referred as 'the returned candidate' and the respondent-opposite party will be referred as 'the election petitioner', for convenience. Immediately after receipt of notice, the returned candidate at the very threshold of the matter filed an application under Order 7, Rule 11 of the Code, seeking rejection of the election petition contending, inter-alia, that there has been a non-compliance of Section 31(1) of the O.G.P. Act, 1964 read with Rule 88 of the Orissa Grama Panchayat Election Rules, 1965. The returned candidate has specifically alleged that even though the election petition was filed on 8.3.2017, the security deposit was made on 14.3.2017, which is beyond the period of limitation and thus the contention was raised that the election dispute is barred by limitation and has to be rejected under provision of Order 7, Rule 11 of the Code. The election petitioner filed his objection to the petition, inter-alia, submitting that it is not correct to say that the security deposit has been deposited at a belated stage. He contended that the election dispute was presented along with challan for deposit the security amount before the registry on 8.3.2017. The election petitioner filed his objection to the petition, inter-alia, submitting that it is not correct to say that the security deposit has been deposited at a belated stage. He contended that the election dispute was presented along with challan for deposit the security amount before the registry on 8.3.2017. Only on registration of the case, the records were send to the appropriate court on 9.3.2017 and then the case was posted to 14.3.2017 on which date the Nazir of the court was directed by the concerned court to receive the security amount on the very same day. The election petitioner, thus, contended that it is not correct to say that the opposite party has not deposited the security amount on the date of filing of the petition and the delay, if any, has been caused only due to lack of prompt action by the court in seisin over the election dispute. It is under the circumstance, the election petitioner contended that there is no question of application of Order 7, Rule 11 of the Code to the case in hand. After hearing both the parties, the learned Civil Judge (Junior Division), 2nd Court, Cuttack was pleased to reject the application filed by the returned candidate, which was impugned before the learned Single Judge. 3. The learned Single Judge proceeded with the presumption that an application for challenging the election of returned candidate had to be accompanied by deposit in shape of a chalan, as provided under Section 31 of the Orissa Grama Panchayat Act and only after order of the court, such deposit is tendered by the election petitioner and therefore, he dismissed the writ application. 4. Mr. Agrawal, learned counsel for the appellant submits that the payment of the deposit is a peremptory deposit because of the language used in Section 31 of the Orissa Grama Panchayat Act read with Rule 88 of the Orissa Grama Panchayat Election Rules. It is not necessary to tender the same through a challan with order of the court. 4. Mr. Agrawal, learned counsel for the appellant submits that the payment of the deposit is a peremptory deposit because of the language used in Section 31 of the Orissa Grama Panchayat Act read with Rule 88 of the Orissa Grama Panchayat Election Rules. It is not necessary to tender the same through a challan with order of the court. Referring to provisions of G.R.C.O. (Civil) Volume-I, he contended that the deposit should have made as a peremptory deposit and as admittedly the deposit has been made beyond the period of limitation prescribed, there has been a contravention of the mandatory provision of deposit to be made along with the election petition or at least before the expiry of limitation, hence, the election petition is clearly barred by Clause-(d) of Rule 11 of Order-7 of the Code of Civil Procedure. Learned counsel for the respondent, on the other hand, submits that an appeal is not maintainable as the order has been passed by the learned Single Judge under Article 227 of the Constitution of India. He further contends that the order passed by the two concurrent courts should not be disturbed in a writ appeal and prays to dismiss the writ appeal. 5. In order to appreciate the argument, let us 1st take up the contention that an appeal is maintainable or not maintainable in an election case. It is not disputed that if writ petition is disposed of under Article 226 of the Constitution or by taking recourse to under Articles 226 and 227 of the Constitution, a writ appeal or a letters patent appeal is maintainable. But, if application is filed and disposed of only under Article 227 of the Constitution, then a writ appeal is not maintainable. This aspect is not disputed by both the parties. This aspect was examined by the Full Bench of this Court in the case of Mahammed Saud & Ors Vs. Dr. (Maj) Shaikh Mahfooz & Anr, 2008 2 CLR 593 (Full Bench), wherein Full Bench has held that writ appeal lie against judgment/orders passed by the learned Single Judge in a writ petition under Article 226 of the Constitution of India. Dr. (Maj) Shaikh Mahfooz & Anr, 2008 2 CLR 593 (Full Bench), wherein Full Bench has held that writ appeal lie against judgment/orders passed by the learned Single Judge in a writ petition under Article 226 of the Constitution of India. In a writ application filed under Article 226 and 227 of the Constitution of India, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226 of the Constitution, a writ appeal will lie, whereas no writ appeal will lie against judgment/order/decree passed by the learned Single Judge exercising powers of superintendence under Article 227 of the Constitution. In a Division Bench of this Court in the case of Saswati Patra vs. Saraswati Biswal and others, (2016) 2 OrissaLR 3, similar question arose. It was a matter under Section 32 of the Orissa Zilla Parishad Act, 1991 regarding the challenge to the election of a Member of the Parishad. At paragraphs-8 and 9, the Division Bench of this Court in the aforesaid case discussed this question. It read as follows: "8. Where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order, the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra Court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the learned Single Judge and not what provision he mentions while exercising such powers. What is important to be ascertained is the true nature of order passed by the learned Single Judge and not what provision he mentions while exercising such powers. A statement by a learned Single Judge that he has exercised power under Article 227, cannot take away the right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra Court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the learned Single Judge. 9. Consequently, maintainability of the Letters Patent Appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, and the type of directions issued, regard being had to the jurisdictional perspectives in the constitutional context. Whether a Letters Patent Appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. It is clarified that in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is, the High Court, even if required to call for the records, the District Judge need not be a party. But how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge and as such, there cannot be a straitjacket formula for the same. But the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by the Supreme Court. The apex Court in Jogendrasinhji Vijaysinghji (supra) Jogendrasinhji v. State of Gujarat, (2015) 2 OrissaLR 509 (SC) : (2015) 9 SCC 1 : summarized the guidelines in paragraph-45, which read as follows: "45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows: 45.1. Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows: 45.1. Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. 45.2. The order passed by the civil court is only amenable to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam v. Chhabi Nath, 2015 5 SSC 423, one writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. 43.3. The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. 45.4. The tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal." * 6. In applying this principle to the case in hand, this Court comes to conclusion that the returned candidate has filed this petition under Article 226 and 227. The basic difference between under Article 227 and Article 226 (certiorari jurisdiction) is that Article 227 is intended to keep the lower tribunals and courts within the bound of their jurisdiction. The scope of Article 226 is wider. In the case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and Others, 1955 AIR 233 the question came before the court whether the decision of an election tribunal can be challenged under Article 226 or not, wherein a seven judges Bench of Hon'ble Supreme Court has addressed itself to the question whether the High Court has jurisdiction under Article 226 to issue writs against decision of the election tribunal. Then, Hon'ble Supreme Court has laid down that the article confers on the High Court the power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. 7. Keeping in view the aforesaid three authoritative pronouncements, this Court is of the opinion that writ appeal is maintainable against the order passed by the Election Tribunal in a proceeding of election dispute under the Orissa Grama Panchayat Act. 8. The next question this Court has to address is, whether the mode of deposit has been done in this case has to be through a challan with order of the court or without any order of the court. Section 31 of the Orissa Grama Panchayat Act provides that the election petition shall be presented on one or more of the grounds specified in Section 39 of the Act before the learned Civil Judge (Junior Division) having territorial jurisdiction, together with a deposit of such amount, if any, as may be prescribed in that behalf as security for cost within 15 days after date on which the name of the person elected is published under Section 15 of the Act read with Rule 88 of the Orissa Grama Panchayat Election Rules, 1965. These provisions provide that for the election petition relating to election of Sarpanch an amount of security deposit should be Rs.150/-. Similar provisions have come for adjudication in several cases in this court. While dealing with the Orissa Municipal, Act, 1950 regarding the deposit of security amount of Rs.200/-, a Division Bench headed by Hon'ble the Chief Justice B.L. Hansaria, as His Lordship was then, in the case of Dr. Nirmal Chandra Satpathy vs. Jitu Patnaik @ Jitendranath Patnaik and others, (O.J.C. No.4025 of 1993) has come to the conclusion that no extension of time has been granted by the District Judge for depositing the security money and secondly because under the law, he has no power to grant extension in as much as Section 5 of the Limitation Act cannot apply to the petition filed under Section 9 of the Municipal Act. In the case of Raj Pal vs. Election Officer-cum-Block Development Officer and others, (2003) 2 OrissaLR 283 this Court has held that even though there is no provision similar to Section 86 of the Representation of the People Act, 1951, for dismissal of election petition of the Orissa Panchayat Samiti Act on the ground of non-deposit of security of Rs.2000/- along with election petition, election petition can still be dismissed for such deposit if made beyond the time prescribed under Section 44-B of the Orissa Panchayat Samiti Act. Thus, it is apparent that the election petition has to be presented within 15 days and even if the security deposit is not filed along with the election petition, it must be filed within the limitation prescribed i.e. 15 days of the declaration of the election result, failing which the election petition will not be maintainable and can be dismissed. Now, coming to the mode of deposit there appears to be lot of confusion. Admittedly, neither the G.P. Act nor the G.P. Rules prescribed the mode of deposit. In such situation, the Court has to look into the G.R.C.O. (Civil) Vol.-I Rule 595 provides for heads of accounts and paragraph-(h) thereof defines peremptory receipts. It read as follows: "595.Heads of account-The following are the heads of accounts in the public accounts under which the money received and paid by Judicial Officers, or under their orders is classified. XXX XXX XXX XXX XXX XXX XXX XXX (h) Peremptory receipts, i.e. witnesses' expenses, prisoners' diet-money, boat-hire, costs of adjournments, amins' travelling allowances, fees and expenses payable to commissioner's daily fees payable under the rules for deputation of peons and other peremptory receipts." XXX XXX XXX XXX XXX XXX XXX XXX XXX Rule 605 provides the mode, it is appropriate to quote the same. "Peremptory receipts under head (h) of Rule 595 shall be tendered to the cashier direct the intervention of the Accountant, a chalan is not required in respect of such payments." 9. In other words, if the deposit is peremptory deposit, then a challan is not necessary to be furnished while tendering the deposit a peremptory cash receipt is enough. The cashier should receive the money and issue a receipt. Whether the deposit made in election petition is peremptory or not has to be decided now. In other words, if the deposit is peremptory deposit, then a challan is not necessary to be furnished while tendering the deposit a peremptory cash receipt is enough. The cashier should receive the money and issue a receipt. Whether the deposit made in election petition is peremptory or not has to be decided now. The Concise Oxford English Dictionary 10th Revised edition, defines peremptory as 'insisting on immediate attention or obedience; brusque and imperious'. It also defines that in law 'it is not open to appeal' or 'challenge' or 'it is final'. Now, section 31(1) provides that the election petition must be accompanied by deposit of Rs.150/- and it is final. This aspect of the case cannot be challenged anywhere in the court and for that reason we are of the opinion that it is a peremptory deposit and there is no need to pass a challan by the Presiding Officer for deposit of the same. A peremptory deposit will be enough for compliance of the same. Admittedly, in this case the same has not been done and the challan deposit has been done much after the expiry of limitation period. Therefore, we are of the opinion that the learned Single Judge on erroneous assumption dismissed the writ petition, which needs to be set-aside. 10. Accordingly, we allow the appeal, set-aside the judgment dated 23.08.2017 passed by the learned Single Judge in W.P.(C) No.13857 of 2017 and also set-aside the order dated 05.07.2017 passed by the learned Civil Judge (Junior Division), 2nd Court, Cuttack in Election Misc. Case No.9 of 2017 rejecting the application filed by the returned candidate under Order-7, Rule-11 of the Code of Civil Procedure. In effect, we allow the application filed by the returned candidate under Order 7, Rule 11 of the Code of Civil Procedure and dismissed the election petition for non-compliance of Section 31(1) of the Orissa Grama Panchayat Act read with Rule 88 of the Odisha Grama Panchayat Election Rules. The writ appeal is accordingly disposed of. There shall be no orders as to costs.