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2020 DIGILAW 101 (ORI)

Saraswati Sahoo v. Lipika Dash

2020-05-06

D.DASH

body2020
JUDGMENT : D.Dash, J. The petitioner has filed this writ application to set aside the judgment passed by the learned District Judge, Nayagarh in Election Appeal No. 02 of 2018 by issuing appropriate writ/writs in the nature of certiorari. By the said Judgment, the appellate court while dismissing the appeal filed by the petitioner as the appellant in questioning the order dated 03.03.2018 passed by the learned Civil Judge (Junior Division), Nayagarh in Election Misc. Case No. 15 of 2017 has confirmed the order declaring the election of this petitioner as Sarpanch, Nabaghanapur Grama Panchayat under Nayagarh Block as void; consequentially creating a casual vacancy in the said office. It is to place here that this petitioner was the opposite party no.1 in the original election petition and present opposite party no.1 had filed that election petition questioning the election of this petitioner as Sarpanch of Nabaghanpur Grama Panchayat under Nayagarh Block for a declaration that it is void. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial court. Heard learned counsel for the petitioner and opposite party no.1 at length. 3. The petitioner has filed the petition under section 30 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as OGP Act) for declaration that the election of the opposite party no.1 as Sarpanch of Nabaghanpur Grama Panchayat is void with a further prayer to declare her as the elected Sarpanch as she had secured the next highest number of votes in the said election. The ground of challenge to the election of the opposite party no.1 is one under clause-c of sub-section -1 of section 39 of the OGP Act in saying that the nomination of the opposite party no.1 had been improperly accepted although, she was disqualified from contesting the election for the office of the Sarpanch of the Nabaghanpur Grama Panchayat being not able to read and write Odia which is one of the essential qualifications for the membership of the Grama Panchayat as per the provision of clause-(b) of section 11 of the OGP Act. The specific allegation made against the opposite party no.1 is that she did not know to read and write Odia and for that reason on the date of scrutiny, she being absent, the Election Officer had scrutinized the documents in accepting the nomination. It is stated that even though there was an objection from the side of the petitioner to the candidature of the opposite party no.1 on the very ground of not having the qualification under clause-(b) of section 11 of the OGP Act, the same was overruled without any justification and the nomination of the opposite party no.1 was thus illegally accepted. It is asserted that the opposite party no.1 does not know to read and write Odia and as such she does not have the requisite qualification for being a member of the Grama Panchayat. It is stated that the nomination of the opposite party no.1 thus, having been improperly accepted, the result of the election even though has gone in her favour and she has been declared elected as the Sarpanch of the Nabaghanpur Grama Panchayat, those are all void. 4. The opposite party no.1 in her defence while refuting the allegations has asserted that she is capable of reading and writing Odia and as such is having required qualification as provided under sub-caluse-(b) of section-11 of the OGP Act. So, it is said that the acceptance of her nomination is proper and therefore, the question of declaring her election to the office of Sarpanch of the Grama Panchayat as void does not arise. 5. Parties having lead evidence in support of their respective case by examining witnesses (three from the side of the petitioner and five from the side of the opposite party no.1), the Court below upon taking those into consideration along with documentary evidence let in by the parties as also by testing the ability of the opposite party no.1 in reading and writing Odia in court has recorded a finding that the opposite party no.1 does not have the qualification of becoming the member of the Grama Panchayat being not able to read and write Odia as mandated under clause-(b) of section-11 of the OGP Act. The opposite party no.1 having challenged the said order by carrying an appeal as provided under sub-section-4 of section 38 of the OGP Act has failed in her attempt to get the order holding her election as Sarpanch of Nabaghanpur Grama Panchayat as void, set at naught. The appellate court, on appreciation of evidence at its end, has finally concurred with the finding of the trial court as to inability of the opposite party no.1 to write Odia in saying that the opposite party no.1 does have the requisite qualification for the membership of the Grama Panchayat as mandated under clause (b) of section 11 of the OGP Act. 6. The dispute here lies in narrow campus that whether the opposite party no. 1 is able to read and write Odia. The concurrent findings that she does not know to write Odia as has been rendered by the courts below run against the opposite party no.1 which are now under challenge. The scope here to interfere with the concurrent findings of the courts below in the background of the prayer made in the writ application is limited. The writ of certiorari is supervisory in nature and it is not open for the court to act as an appellate forum. The interference is called for only when the finding rendered by the courts below are found to have been suffering from the vice of perversity that either any important evidence on record has been kept aside for being taken note of or that any such matter/thing, which does not surface in the evidence on record have been read into evidence and if those would have been done correctly, the finding might have been otherwise as no reasonable man can come to the conclusion, which has been reached by the court below. However, the caution always stands that merely because another view is possible to be taken on the evidence, the interference with the concurrent finding of fact is not permissible and for that it has to be said that the outcome in shape of finding returned by the court below has emerged due to the appreciation of evidence on record in a perverse manner. 7. 7. Learned counsel for the opposite party no.1 (the present petitioner) submitted that the court below being of the view that the opposite party no.1 is able to write Odia letters like (Ka) & (Kha) being dictated from a passage in Court, it should not have held that the opposite party no. 1 does not know to write Odia taking a view that since she is not able to write the word properly having heard the same as she has committed major mistakes in writing in court upon dictation, even after few months of filing of her nomination, it is not possible to imagine that she was able to read and write Odia as on the date of filing of nomination when the court itself has noted in the deposition of the opposite party no.1 examined as opposite party no.5 that when after obtaining permission, the counsel for the petitioner having asked her (opposite party no.1-OPW no.5) to read and Odia newspaper, i.e, Sambad, she was able to read the newspaper with little difficulty. In support of the above submission, he has relied upon the following decisions:- “(i) Kalabati Jena –V- Dhaneswar Jena and others; 2009 (Supp-2) OLR 344; (ii) Usha Sahoo Versus Ambika Sahoo and a nother; 2011 (I) OLR 499 ; and (iii) Manorama Sahu –V-Kona Rajes wari Reddy & others; 2017 (I) ILR Cut 314” Learned counsel for the petitioner (the present opposite party no.1) submitted all in favour of the findings of the courts below. It is his submission that merely knowing to read and write few Odia letters or alphabets, a person cannot be said to be able to read and write Odia, unless he/she reads the sentence in a proper manner conveying the same meaning and so also writes a sentence in Odia in such a manner that it conveys the meaning making out the sense. 8. The powers, duties and functions of the Sarpanch have been expressed in section 19 of the OGP Act which reads as under:- “19. Powers, duties and functions of Sarpanch. (1) Save as otherwise expressly provided by or under this Act, the executive powers of the Grama Panchayat for the purpose of carrying out the provisions of this Act, shall be exercised by the Sarpanch, who shall act under the authority of the said Grama Panchayat. Powers, duties and functions of Sarpanch. (1) Save as otherwise expressly provided by or under this Act, the executive powers of the Grama Panchayat for the purpose of carrying out the provisions of this Act, shall be exercised by the Sarpanch, who shall act under the authority of the said Grama Panchayat. (2) Without prejudice to the generality of the provisions of Sub-section (1) the Sarpanch shall, save as otherwise provided in this Act, or the rules made thereunder and subject to such general or special orders as may be issued from time to time by the State Government in that behalf- (a) convene and preside over the meetings of the Grama Panchayat and conduct, regulate and be responsible for the proper maintenance of the records of the proceeding of the said meetings; (b) execute documents relating to contracts on behalf of the Grama Sasan; (c) be responsible for the proper custody of all records and documents, all valuable securities and all properties and assets belonging to or vested in or under the direction, management or control of the Grama Sasan; (d) be responsible for the proper working of the Grama Panchayat as required by or under this Act; (e) cause to be prepared all statements and reports required by or under this Act; (f) exercise supervision and control over the acts and proceedings of all officers and employees of the Grama Panchayat; (g) be the authority to enter into correspondence on behalf of the Grama Panchayat; and (h) exercise such other powers, discharge such other duties and perform such other functions as may be conferred or imposed on or assigned to him by or under this Act.” So for the examination as to whether the opposite party no1 is able to read and write Odia, the duties and functions which the Sarpanch is supposed to discharge have also to kept in the background. 9. In course of hearing of this application, it came to strike that as per the Odisha Grama Panchayat Election Rules, 1965 (hereinafter referred as ‘the Election Rules’), the nomination form prescribed to some extent is required to be filled up by the candidate himself/herself and that if would have been called for by the Courts below for inspection, it would have also thrown light on the subject in issue in providing assistance in deciding the issue. Therefore, this Court had called for the Form No.4 which had been filed by the opposite party no.1 as required under Rule-29 of the Election Rules which is the nomination paper. The same having been placed by the concerned Block Development Officer i.e. opposite party no.2, has been taken on record. It may be mentioned here that we are here concerned with two parts since the third part is meant for the Election Officer. In the second limb of the first part of the form, the blanks are required to be filled up by the proposer whereas the blanks in the third part, are to be filled up by the candidate himself/herself. These blanks are as to his/her age and the date of filing of nomination paper under the signature of the candidate. In the second limb of third part, the blanks are in relation to the declaration of his/her being a member of Scheduled Caste/Scheduled Tribe/Other Backward Class in indicating specifically his/her caste/tribe belonging to Scheduled Caste/Scheduled Tribe/Other Backward Class in the State of Odisha as also the date of said declaration under the signature of the candidate. Learned counsel for the parties have inspected this Form-4 in open Court during hearing. It appears that the dates required to be filled up by the candidate have been filled up by her proposer as his handwritings fully tally when seen in the naked eye and that is also the situation as to the filling of the blanks as to the age of the candidate. The name of the candidate (opposite party no.1) in the second limb of the third part as visible to the naked eye has not been filled up by the candidate since letters under her signature are completely different from those put against her name. In fact, in that blank although name was not to be written, it has been so written and the caste or sub-caste of the candidate, which was to be written has not been filled up and left blank. It may however be mentioned that the signature which has been made by the opposite party no.1 in the said Form-4 tallies with her signature given in the proceedings before the court below as also in the present application. It may however be mentioned that the signature which has been made by the opposite party no.1 in the said Form-4 tallies with her signature given in the proceedings before the court below as also in the present application. When the form prescribed under the election rules mandates that some blanks are to be filled up by the candidate which is wanting in the case and one blank has not only been wrongly filled up but the required particular as to declaration of caste or sub-caste has been left unfilled, the scrutiny made by the opposite party no.2 is clearly found to be perfunctory. This is the state in the nomination paper which was long before the election dispute and thus cannot be lost sight of for the purpose and therefrom an inference is drawable that opposite party no.1 then had no such ability to read the form as also write thereon in filling blanks meant to be filled up by her; for which that the proposer had come to her rescue. There also the proposer perhaps either having not known the caste or sub-caste of the opposite party no.1 has left to fill it up or by misreading has filled up said blank writing the name of the candidate, i.e., the opposite party no.1. 10. In the trial court, the petitioner had been dictated Odia passage for being written. The passage has been admitted in evidence and marked as Ext.7 and the writing of the opposite party no.1 has been admitted in evidence and marked as Ext.7/(a) under Annexure-2 series. Both sides have let in oral evidence in support of their rival claims; when the opposite party no.1 says that she knows to read and write Odia, it is said to be not so by to petitioner. Besides being seen that the opposite party no.1 has written it under great difficulty, it is quite apparent that there are major mistakes as to the writing of words with writings of wrong alphabets as also missing of alphabets. In the entire writing there is no ‘I’, i.e., ‘Purnachhed’ [in English, we say, full stop(.)]. A reading to it being given the writings appear hardly to be conveying that meaning or sense. After all, very purpose of writing is to communicate certain things. If the writing fails to communicate the intention of the writer demonstrating the meaning, the same is rendered useless. A reading to it being given the writings appear hardly to be conveying that meaning or sense. After all, very purpose of writing is to communicate certain things. If the writing fails to communicate the intention of the writer demonstrating the meaning, the same is rendered useless. Here, it is seen from the writing that the opposite party no.1 had elementary knowledge of letters, orthography, syntax and punctuation. 11. With regard to the first two judgments cited by learned counsel for the opposite party no.1, fact remains that those are all Single Bench cases and none of these cases refers to Damburu Majhi –V-Tarinicharan Majhi; 2006 (II) CLR 705, a Division Bench case. There the petitioner had written down a paragraph in Court with difficulty committing several mistakes. The writing also carried no meaning. Accordingly, both the trial court and appellate court had held that the petitioner was not able to write Odia which had been uphold. This decision has not been referred in the decisions of Kalabati Jena (supra), and Usha Sahoo (supra) which were all decided by a learned Single Judge of this Court. These judgments also do not refer to the nature of duties of a Sarpanch is required to be performed under Section 19 of the Act. In Kalabati Jena case (supra), there has been no reference to two earlier Division Bench decisions of the Court as rendered in Mrs. Suryakanti Mishra –V-State Orissa and others; 2005 (supp) OLR 906 and Damburu Majhi (supra). Kalabati Jena’s case (supra) lays down that only interpretation of the phrase "read and write Odia" can be that a candidate should not be illiterate and should at least know how to read and how to write Odia to a standard as would be required for a person to function as a Sarpanch. However, such an interpretation without reference to the Division Bench decision of this Court in Mrs. Suryakanti Mishra case (supra) wherein the phrase "read and write Odia" has been interpreted to mean that the person must have the capacity to read and write Odia alphabets as well as "Yuktakhyaras", i.e., the alphabets made on combination of vowels and consonants that too without reference to Section 19 of the Ac. Above being the position, this Court is persuaded to follow the dictum of the decision rendered by the Division Bench in Mrs. Above being the position, this Court is persuaded to follow the dictum of the decision rendered by the Division Bench in Mrs. Suryakanti Mishra case (supra) in holding that in the background of requirement of Section 19 of the Act "read and write Odia" must mean something more in tune with the dictum of Mrs. Suryakanti Mishra (supra) so as to enable a Sarpanch to discharge his/her duties properly under Section 19 of „the Act?. In such background, where the petitioner wrote without any objection and when such writing is seen to be a laboured one with a number of mistakes, conveying no meaning, this Court is of the considered view that the learned appellate court did commit no wrong in passing the impugned judgment. The facts and circumstances of Usha Sahoo case (supra) are distinguishable in as much as at Para-8 of said judgment, wherein it is indicated that the petitioner therein had written correct sentence in Odia that too in a good handwriting, is not the case at hand. Moreover, there is also no discussion on section 19 of the Act in that case. The cited decision of this Court in case of Manorama Sahu (Supra) runs against the stand of the opposite party no.1. As indicated earlier, many words written by the petitioner at Ext.7/a do not make any sense and a Sarpanch who is supposed to discharge multifarious duties under Section 19 of “the Act”, in the background of such writing cannot be said to have the ability to write Odia. For the aforesaid discussion and reasons, this Court does not find any such factual or illegal error in concurrent finding of fact that the opposite party no.1 does have no ability to write Odia does not suffer from the vice of perversity warranting interference in this proceeding. 12. In the result, the writ application stands dismissed. Interim order passed on 02.05.2018 in I.A. No. 5722 of 2018 stands vacated.