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2019 DIGILAW 611 (ORI)

Lokanath Pattanaik v. Sanjay Kumar Ratsingh

2019-10-14

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This Writ Petition involves a challenge to the order dated 22nd June of 2019 passed by the 1st A.D.J., Khurda in the Election Appeal No.2 of 2019 in confirmation of the order dated 28.2.2019 passed by the Civil Judge (Jr. Divn.), Khurda in the Election Misc. Case No.5 of 2017. 2. Short background involving the case at hand is that the opposite party as the election petitioner filed Election Case under the provisions of Orissa Grama Panchayat Act, 1964 hereinafter in short be called as “The Act, 1964” assailing the election of the present petitioner on the basis of the allegation made in paragraph no.4 involving election of a candidate disqualified U/s.25 of the Act, 1964 and in paragraph no.5 indicating that the result of the return candidate is an outcome of improper admission of votes in his favour as well as improper rejection of the votes casted in favour of the election petitioner, further also adopting corrupt practice by the return candidate. The present petitioner as the opposite party no.1 therein on his appearance contested the election petition on the premises that the Election Petition was not maintainable and further also refuting each and every allegation of the election petitioner more particularly specifically denying the allegation of corrupt practice adopted by the return candidate. 3. On the basis of the pleadings of the respective parties the trial court framed the following issues: “(I) Whether the Election Misc. Case is maintainable in the eye of law? (II) Whether the Petitioner has got any cause of action to file this Election Misc. Case against the Opp. Parties? (III) Whether there was double voting by voters in more than one booth and unfair practice by casting vote in the name of dead persons? (IV) Whether the Opp. Party No.1 was having any arrear outstanding with Orami Service Co-operative Society as on 23.12.2016 i.e., the date of filing of nomination paper and he failed to repay the same leading to his disqualification for being elected as Sarpanch?” 4. Based on the evidence, the submissions of the parties and taking into account the provisions of law and for the issue nos.III & IV remaining vital, taking up such issues, issue no.III was answered against the election petitioner whereas issue no.IV was answered in favour of the election petitioner. Based on the evidence, the submissions of the parties and taking into account the provisions of law and for the issue nos.III & IV remaining vital, taking up such issues, issue no.III was answered against the election petitioner whereas issue no.IV was answered in favour of the election petitioner. On the basis of the findings on the issue no.IV in favour of the election petitioner the trial court allowed the Election Misc. Case thereby declaring the election of the return candidate as Sarpanch of Orabarsasingh Gram Panchayat invalid for being disqualified U/s.25(1)(1) of the Orissa Gram Panchayat Act and further declaring the election petitioner for his securing next highest votes as elected candidate for the post of Sarpanch of the Orabarsasingh Gram Panchayat with immediate effect. Being aggrieved the return candidate filed appeal relying on the finding on issue no.IV and submitted that for the finding on issue no.IV against of the election petitioner, he should not have been declared as a return candidate and the only option left with the Election Tribunal after declaring the election of the return candidate bad, was to give direction for fresh election for the casual vacancy. On appeal, the Election Appeal was registered as Election Appeal No.2 of 2019 and the appeal was decided on contest thereby while dismissing the appeal confirmed the judgment in the Election Misc. Case. Appellant being the petitioner filed the Writ Petition challenging the order vide Annexures-2 & 5. 5. Shri A.P. Bose, learned counsel for the petitioner taking this Court to the provisions at Section 40 & 41 of the Orissa Gram Panchayat Act read with finding on issue no.IV by the trial court and the judgment of the Hon’ble apex Court in confirmation of the stand taken by the return candidate submitted that declaring the election petitioner as elected candidate being dependant on the finding on issue No.III, in the event of allowing the election petition, for finding on issue no.III having gone against the election petitioner, there was no occasion on the part of the trial court while declaring the election of the petitioner as bad, except leaving it open to the competent authority holding a fresh election in the Orabarsasingh Gram Panchayat. On the same premises Sri Bose contended that the appellate court also failed in appreciating the above legal aspect thereby resulted in a bad judgment. On the same premises Sri Bose contended that the appellate court also failed in appreciating the above legal aspect thereby resulted in a bad judgment. Shri A.P. Bose, learned counsel consequently taking this Court to the decisions in the case of Prakash Kandre and Ors. vrs. Vijaya Kumar Khandre and Ors. involving Civil Appeal Nos.2-3 of 2002 as reported in AIR 2002 SC 2345 , in the case of Smt. Puspalata Parida vrs. The Block Development Officer-cum-Election Officer Sadar Block as reported in 108(2009) CLT 785 and further in the case of Pravakar Pradhan Vrs. Bhaktabandhu Sahoo and others as reported in 1998(II) OLR 690 and in the case of Bidyutlata Nayak Vrs. Smt. Sucheta Samanta as reported in 2010 (II) OLR 137 contended that above decisions also support the case of the petitioner and accordingly prayed this Court for interfering in the impugned judgment so far it relates to declaration of the election of opposite party no.1 as elected Sarpanch and issuing necessary direction for going ahead to fill up the casual vacancy. 6. Shri B.P. Das, learned counsel for the opposite party no.1 the election petitioner while opposing the request made by Shri A.P. Bose, learned counsel for the petitioner, taking this Court to the provisions at Section 32, 34 & 38 of the Act, 1964 contended that for the provisions referred to hereinabove, there was no occasion on the part of the election petitioner to make the 3rd candidate in the concerned election as party. Further for the election petitioner having acquired 1132 votes being the second highest voter behind the return candidate getting 1139 votes, it was incumbent on the part of the election tribunal to declare the election petitioner to have been elected as the Sarpanch of the Orabarsasingh Gram Panchayat. Further taking this Court to the findings arrived at by both the trial court as well as the appellate court Shri Das, learned counsel submitted that both the orders remain valid requiring no interference in either of the orders. Shri B.P. Das, learned counsel also taking this Court to a decision of this Court in the case of Smt. Puspalata Parida vrs. The Block Development Officer-cum-Election Officer Sadar Block as reported in 108(2009) CLT 785 contended that for the support of the decision to the case of the opposite party no.1, the opposite party no.1 has also the legal support to his case. 7. The Block Development Officer-cum-Election Officer Sadar Block as reported in 108(2009) CLT 785 contended that for the support of the decision to the case of the opposite party no.1, the opposite party no.1 has also the legal support to his case. 7. Considering the pleadings of the parties and the submissions made hereinabove, keeping in view the grounds raised herein, this Court finds, the trial court framed four issues amongst which issue nos.III & IV being vital issues, this Court at the cost repetition takes note of the said issues as herein below: “(III) Whether there was double voting by voters in more than one booth and unfair practice by casting vote in the name of dead persons? (IV) Whether the Opp. Party No.1 was having any arrear outstanding with Orami Service Co-operative Society as on 23.12.2016 i.e., the date of filing of nomination paper and he failed to repay the same leading to his disqualification for being elected as Sarpanch?” 8. Taking into account the findings of the trial court on these two issues, this Court finds, the trial court while holding the issue no.III dealt with illegal rejection and or illegal acceptance of the votes went against the election petitioner, which finding has not been challenged by the party aggrieved more particularly by the election petitioner in higher forum. This Court here observes that once the appeal involving the election dispute is filed for their being no cross objection/ appeal by the election petitioner at least challenging the findings on issue no.III, it appears, the election petitioner chose to abandon the findings on issue no.III given by the trial court. Accordingly, issue no.IV only remains to be considered by the appellate authority. It is, at this stage of the matter taking into consideration the legal provisions required to be considered here, this Court takes note of the provisions at Section 40 & 41 of the Act, 1964, which reads as follows: “40. Accordingly, issue no.IV only remains to be considered by the appellate authority. It is, at this stage of the matter taking into consideration the legal provisions required to be considered here, this Court takes note of the provisions at Section 40 & 41 of the Act, 1964, which reads as follows: “40. Grounds for which a candidate other than the returned candidate may be declared to have been elected -If any person who has lodged a petition, has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the [Civil Judge (Junior Division)] is of opinion- (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by a corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes; he shall after declaring the election of the returned candidate to be void declared the petitioner or such other candidate, as the case may be, to have been duly elected. 41. 41. Corrupt practices – The following shall be deemed to be corrupt practices for the purposes of this Chapter, namely; (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.” (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 excommunication 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 with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; and (c) a declaration of public policy or, a promise of public action or the mere exercise of a legal right without intent to interfere within 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.” 9. Reading the provision at Section 40 of the Act, 1964 this Court finds, to declare a candidate other than the return candidate to have been elected, one has to satisfy either of the provisions at Clause (a) or Clause (b) involving Section 40 of the Act, 1964. For the allegation involving the election case made in paragraph no.4 and the allegation made in paragraph no.5 appears to have been closed by virtue of the finding on issue no.III but however looking to the pleadings made in paragraph no.4 and the findings on issue no.IV, question taken into consideration by the trial court as well as lower appellate court is confined only to the alleged disqualification attached to the return candidate and there was absolutely no involvement of allegation involving Section 40 of 41 of the Act, 1964. As such the case at hand is a case only attracting disqualification U/s.25 of the Act, 1964. Under the circumstance it clearly appears, there remains no involvement of allegation of corrupt practice for consideration either in the trial court or in the lower appellate court and for the election petitioner abandoning to challenge the findings on issue no.III, ingredients involving Section 40 of the Act, 1964 to declare the candidate other than the return candidate to have been elected, could not be satisfied. It therefore appears, both the trial court as well as the lower appellate court appears to have failed to appreciate this legal aspect of the matter and thus both of them arrived at wrong finding and declaration so far it relates to declaring the election petitioner as elected candidate, which must be interfered with and set aside. Considering the submission of Shri A.P. Bose, learned counsel for the petitioner that for not making the 3rd candidate as a party to the election petition, the relief claimed in terms of the provision at Section 40 was otherwise not maintainable. Taking into consideration the submission of Shri B.P. Das, learned counsel for the opposite party no.1 that for the provision at Section 32 read with Section 34 and Section 38 of the Act, 1964, this Court finds force in the submission of the Shri B.P. Das, learned counsel for the opposite party no.1 that there was no need for involving the 3rd candidate as a party to the election petition, as such submission of Shri Das is well protected under the provisions of Section 32(2) of the Act, 1964. 10. This Court going through the other provisions of the Act, 1964 finds the provision at Section 38(2) of the Act, 1964 reads as follows: “38. Decision of [Civil Judge (Junior Division)] (2) If the [Civil Judge (Junior Division)] finds that the election of any person was invalid, he shall either- (a) declare a casual vacancy to have been created; or (b) declare another candidate to have been duly elected; whichever course appears, in the circumstances of the case to be more appropriate and in either case, may award costs at his discretion.” 11. Looking to the observation made hereinabove and finding of this Court that there is no attraction of provision at Section 40 of the Act, 1964 to the case at hand, this Court observes, in the circumstance, the only scope available to the Civil Judge (Jr. Divn.) in terms of provision at Section 38 after holding the election of the return candidate in question as bad, was to give a declaration U/s.38(2) (a) of the Act, 1964 and thereby directing the competent authority to proceed for fresh election to fill up the casual vacancy so occurred. 12. Divn.) in terms of provision at Section 38 after holding the election of the return candidate in question as bad, was to give a declaration U/s.38(2) (a) of the Act, 1964 and thereby directing the competent authority to proceed for fresh election to fill up the casual vacancy so occurred. 12. It is, at this stage of the matter, taking into account the decision of the Hon’ble apex court in the case of Prakash Kandre and Ors. vrs. Vijaya Kumar Khandre and Ors. involving Civil Appeal Nos.2-3 of 2002 as reported in AIR 2002 SC 2345 this Court finds, for the glaring difference in between the provision at Section 82 of the Representation of People Act and the provision at Section 32 of the Act, 1964 where the later provision did not require the candidate securing less votes than the return candidate to be made as a party, the decision involving the Representation of People Act has no application to the case at hand. So far as the decision in the case of Smt. Puspalata Parida vrs. The Block Development Officer-cum-Election Officer Sadar Block as reported in 108(2009) CLT 785 is concerned, this Court finds, the decision vide 108(2009) CLT 785 rather supports the view of this Court. It is, at this stage of the matter, taking into account the decision in the case of Pravakar Pradhan Vrs. Bhaktabandhu Sahoo and others as reported in 1998(II) OLR 690 this Court finds, for the observation and finding of this Court made hereinabove, this decision need not require consideration. So far as the decision cited by Shri Das vide 108(2009) CLT 785 is concerned, this Court observes, for the application of the provision at Section 40 of the Act, 1964 to the case involved therein and for the clear finding involving the case at hand that there is no application of provision at Section 40 of the Act, 1964 to the case at hand, this decision has no support to the case of the opposite party no.1. 13. 13. For the observations and findings of this Court holding the orders of both the Courts below declaring election petitioner to have been elected, being contrary to the provision at Section 38(2)(a) & 40 of the Act, 1964, this Court interfering in both the orders, sets aside the direction so far it relates to declaring the election petitioner to have been elected as Sarapanch and modifies the orders vide Annexures-2 & 5, thus while maintaining the declaration that the return candidate was disqualified to contest and setting aside the direction declaring the opposite party no.1 as elected candidate, modifies the relief part to the extent directing the competent authority to proceed for fresh election of the Sarpanch of the Orabarsasingh Gram Panchayat with immediate effect. 14. The writ petition succeeds, however to the above extent only. Parties to bear their own cost.