Orissa High Court
Saswati Patra vs Saraswati Biswal And Others on 16 May, 2016
Author: B.R. Sarangi
Bench: Vineet Saran, B.R. Sarangi
ORISSA HIGH COURT: CUTTACK
WRIT APPEAL No. 222 of 2016
In the matter of an appeal under Clause 10 of the Letters Patent Appeal
read with Article 4 of the Orissa High Court Order, 1948.
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Saswati Patra ........ Appellant
- versus -
Saraswati Biswal and others ........ Respondents
For Appellant: M/s.U.K. Samal, C.D. Sahoo, S.P. Patra, S.
Naik.
For Respondents: Mr. K.P. Mishra ( for Respondent No.1)
Mr. Debasish Swain, S.K. Dash, K.P. Mishra,
B. Basakh, A. Pradhan
(for caveator)
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
Date of Hearing: 11.05.2016 :: Date of Judgment: 16.05.2016
Dr. B.R. Sarangi, J. The appellant, being the writ petitioner, has filed this intra-
Court appeal against the order dated 29.04.2016 passed by the learned Single Judge of this Court in W.P.(C) No. 6657 of 2016 confirming the order dated 08.04.2016 passed by the learned District Judge-cum- Election Tribunal, Puri, rejecting the application filed by the appellant under Order 6 Rule 16 and Order 7 Rule 11 of C.P.C in Election Petition No. 1 of 2012.
2. The factual matrix of the case, in hand, is that the appellant has been elected as a Member of Zilla Parishad, Puri representing 2 Satyabadi-3 Constituency No. 33 pursuant to the election held on 13.02.2012 where the respondents were contesting her in the said election. The election of the appellant has been challenged by respondent no.1 by raising election dispute under Section 32 of the Orissa Zilla Parishad Act, 1991 before learned Election Tribunal -cum- District Judge, Puri on the ground that the caste certificate showing that she belongs to OBC category is not a genuine one, thereby acceptance of nomination and declaring the appellant as returned candidate is void.
3. It is admitted that evidence from both the sides have already been closed and the matter has been posted for argument and it is also stated at the bar that on completion of such argument the matter has been posted to 17.05.2016 for delivery of judgment by the Election Tribunal - cum- District Judge, Puri in Election Petition No. 1 of 2012. When the matter was posted for argument, the appellant filed three separate applications, one to recall P.W. 3 for further cross-examination, second to call for the case record in Misc. Case No. 162 of 2012 from the Tahasildar, Satyabadi and for time of examination of respondent no.1 and third petition under Order 6 Rule 16 read with Order 7 Rule 11 of the CPC to reject the election petition as no cause of action has arisen. The Election Tribunal -cum- District Judge, Puri on consideration of the application filed under Order 6 Rule 16 read with Order 7 Rule 11 of C.P.C held that the election petition as a whole, if read together, make out all the facts necessary to the satisfaction of the Tribunal regarding the cause of action for challenging the election of the appellant as she does not belong to the caste for which the seat is reserved and accordingly, rejected the application filed under Order 7 Rule 11 of C.P.C on 3 the ground that it lacks merit. Assailing the said order, the appellant preferred writ petition bearing W.P.(C) No. 6656 of 2016 before this Court and the learned Single Judge vide impugned order dated 29.04.2016 dismissed the writ petition holding that the appellant shall come with the expression that such person is disqualified for election. Hence this appeal.
4. Mr. U.K. Samal, learned counsel for the appellant urged that Section 33 of the Orissa Panchyat Samiti Act, 1959 provides for disqualification of a member. The caste certificate, on the basis of which she was declared elected, cannot be challenged as a fraudulent one to nullify the effect of election as it does not cover election to be void under Section 44-L of the said Act, which stipulates that improper acceptance of nomination cannot be a ground for declaring an election void. More particularly, Section 44-L(1)(c) of the said Act provides that the Civil Judge (Senior Division) shall declare the election of a returned candidate void, if he is of the opinion that such person is disqualified for election under the provision of this Act. Section 33 of the Orissa Zilla Parishad Act deals with disqualification for becoming a member and continuing as member. Production of caste certificate, which is not genuine, is not a disqualification mentioned under the said provision and therefore, he seeks for setting aside of the impugned order dated 29.04.2016 passed by the learned Single Judge. To substantiate his contention, he has relied upon the judgments in Jyoti Basu and others v. Debi Ghosal and others, (1982) 1 SCC 691, Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423, State of Madhya Pradesh and others v. Visan Kumar Shiv Charan Lal, AIR 2009 SC 1999, Tarachand Majhi v. Lalit Pradhan, 110(2010) CLT, 162, M/s. Advani Oerlikon Ltd. v. Machindra 4 Govind Makasore & others, AIR 2011 Bombay 84(FB), and Sailesh Chandra Bhattacharjee & others v. State of Tripura & others, AIR 2016 (NOC) 127 (Tri).
5. Mr. K.P. Mishra, learned counsel for respondent no.1, per contra, raised a preliminary question with regard to maintainability of the writ appeal. It is further urged that when the genuineness of the caste certificate issued by the Tahasildar, Satyabadi in Misc. Case No. 213 of 2008, basing upon which the appellant has been elected, is a subject matter of dispute before the Election Tribunal -cum- District Judge, Puri and the argument has already been over and the matter has been posted for judgment, the present writ appeal should not have been entertained. It is further contended that a person having been elected by producing a fraudulent certificate, her election cannot be assailed under the election law even though she was otherwise not eligible to participate in the election process. In support of his contention he has relied upon the judgments in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Others, AIR 1964 SC 1545, Rabinarayan Hati v. Nityananda Patra and another, 2003(I) OLR 668, Jogendrasinhji Vijaysinghji v. State of Gujarat and others, (2015) 9 SCC 1.
6. On the basis of the facts pleaded above, the following questions emerge for consideration.
(i) Whether the writ appeal is maintainable?
(ii) Whether the learned Single Judge is justified in dismissing
the writ petition and directing the learned Election Tribunal
-cum- District Judge, Puri to dispose of the election petition within two weeks from the date of receipt of the order?
5Question No.(i)
7. Several judgments have been cited by the learned counsel for the parties with regard to maintainability of the writ appeal before this Court. The question with regard to maintainability of the intra-Court appeal has been considered by the Apex Court in Jogendrasinhji Vijaysinghji (supra) and the Apex Court relying upon the various judgments held that Article 226 of the Constitution of India confers a power on a High Court to issue writs, orders, or directions mentioned therein for enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. The High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act concerned. The order passed by the Civil Court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution. Once it is exclusively assailable under Article 227 of the Constitution of India, no intra Court appeal is maintainable. Jurisdiction under 6 Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a Letters Patent Appeal or an intra-Court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a Civil Court would not lie before the Division Bench. No writ can be issued against the order passed by the Civil Court and, therefore, no Letters Patent Appeal would be maintainable.
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. A statement by a learned Single Judge that he has exercised power under Article 227, cannot take away the right of appeal against such 7 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) summarised the guidelines in paragrtaph-45, which reads as follows:
"45. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:8
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 SCC 423, no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. 45.3. 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."
10. In the Forty-Second year of the Republic of India, the Legislature of the State of Orissa has enacted a law to provide for the establishment of Zilla Parishads in the State of Orissa and for matters connected therewith or incidental thereto called " The Orissa Zilla Parishad Act, 1991". Chapter-V of the said Act deals with election disputes. Section 32 states that no election of a person either as a member or as the President or Vice-President of a Parishad held under this Act shall be called in question except by an election petition presented before the District Judge having jurisdiction over the place at which office of the Parishad is situated. Sub- Section (2) of Section 32 states that for the purpose of Sub-section (1), the provisions contained in Chapter-VI-A of the Orissa Panchayat Samiti Act, 1959 shall mutatis mutandis apply except as provided thereunder. In the said Chapter, reference to the expression "Samiti" and "Election Commissioner" 9
wherever they occur, shall be construed as reference to "Parishad" and "District Judge" respectively.
11. In Kanhaiyalal v. Mannalal, AIR 1976 SC 1886, the Apex Court held that an "election dispute" is not a private feud between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witness cannot steal the dominant voice of the majority of an electorate.
12. In P. Nalla Thampty Thera (Dr.) v. B.L. Shanker, AIR 1984 SC 135, the Apex Court in para-8 held that election and election disputes are a matter of special nature and though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
13. In view of Section 32 of the Zilla Parishad Act, 1991 no election of a person, either as a member or as the President or Vice- President of a Parishad, held under the said Act, shall be called in question except by filing a properly constituted election petition, which means a petition for enquiry into the validity of elections. A prayer made to the competent authority for challenging the result of an election, the election can be called in question by an election petition presented on one or more of the grounds specified in the election law, by an candidate at such election or any elector, within time specified from the date of election of the returned candidates. The Court which has the jurisdiction to try an election petition is the District Judge in the said Act.
14. In N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64, the apex Court held that "election" has by long usage in connection with 10 the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected.
15. Considering the above meaning of "election", "election dispute" and "election Petition" and taking into consideration the Sub- section(2) of Section 32 of the Zilla Parishad Act, 1991, Chapter- VI-A of the Orissa Panchayat Samiti Act, 1959 which deals with the election disputes, the election dispute is to be decided strictly in accordance with the provisions contained under Zilla Parishad Act, 1991 read with the Orissa Panchayat Samiti Act, 1959 and procedure envisaged therein.
16. Section-44-F of the Orissa Panchayat Samiti Act, 1959 states about "Procedure before the Civil Judge (Senior Division)". Since it is a case under the Zillla Parishad Act wherever the expression used as "Civil Judge (Senior Division)" under Orissa Panchayat Samiti Act, 1959 has to be read as District Judge. Similarly, Section-44-H deals with Powers of Civil Judge (Senior Division) and that power has been enumerated in Clauses (a) to (g), thereby, the District Judge has to exercise such power while considering the election dispute. Section 44-B (1) it was prescribed that in case of an election, in respect of Samiti, the Civil Judge(Sr. Division) having jurisdiction over the place at which the Office of the Samiti is situated well within the jurisdiction to try the election petition. So far as the Zilla Parishad Act is concerned, it is the District Judge, who is to hear the matter. The 11 District Judge who exercises the power under his jurisdiction under the Zilla Parishad Act is a "Court" within the meaning of evidence Act.
17. The District Judge cannot be held to be persona designate and come under the definition of the „Court‟ as defined in the Indian Evidence Act and more so, the District Judge, has exercised the power as envisaged under the Orissa Zilla Parishad Act, 1991 read with Panchyat Samiti Rules, 1959. Though by designation he discharged his duties under the Act and as such, being called as "Election Tribunal" and taking into consideration the law laid down by the apex Court as mentioned supra and applying the same to the present context, it appears that the District Judge has exercised the jurisdiction as Election Tribunal under the Orissa Zilla Parishad Act, 1991. The appellant files writ application challenging the order dated 08.04.2016 passed by the learned Election Tribunal -cum- District Judge, Puri in Election Petition No. 1 of 2012 under the provisions of the Orissa Zilla Parishad Act, 1991 by invoking the jurisdiction under Articles 226 and 227 of the Constitution of India and on perusal of the order passed by the learned Signal Judge, it appears that he has exercised the jurisdiction under Article 226 of the Constitution of India and the nature of order he has passed can only be construed to be an order passed under the said Article of the Constitution. Therefore, the intra-Court appeal is maintainable before this Court. Question no.(i) is answered accordingly.
Question No.(ii)
18. Learned counsel for the appellant advanced his argument to the issue that the validity of caste certificate, cannot be challenged in an election petition filed under Section 32 of the Orissa Zilla Parishad Act, 1991. 12 Section 32 relates to election disputes. Sub-section(2) of Section 32 provides that for the purpose of Sub-Section(1), the provisions contained in Chapter VI-A of the Orissa Panchyat Samiti Act, 1959 shall mutatis mutandis apply except as provided thereunder. In the said chapter reference to the expression "Samiti" and "Election Commissioner" wherever they occur shall be construed as reference to "Parishad" and "District Judge" respectively. Perusal of the provisions contained in Chapter VI-A of the Orissa Panchyat Samiti Act, 1959, indicates that it deals with "election disputes". Sections 44- A to Section 44-Q have various provisions available under the statute to deal with election petition. The election of the present appellant is challenged on the ground that she has relied upon the forged/fake certificate issued by the Tahasildar, Satyabadi as per the order in Misc. Case No. 2013 of 2008. Therefore, the learned Election Tribunal-cum-District Judge, Puri can only declare the election void as per the provisions contained under Section 44-L and more so, the said provision does not provide for declaring the election void for improper or illegal acceptance of nomination paper. Clause-(c) of Sub-Section(1) of Section 44-L provides that such person disqualified for election under the provisions of this Act. Admittedly, the constituency from which the appellant has participated in the election is reserved for OBC female candidate. The appellant being an OBC female candidate having participated in the election on the basis of the forged/fake certificate granted by the competent authority, the same can be construed that the person is disqualified for the election under the provisions of this Act. So far as obtaining the certificate fraudulently is concerned, this being a subject matter of election dispute itself, this Court refrains from giving any opinion at this 13 stage. In any case, the arguments from both the sides having been over in the meantime and the matter is pending for judgment, which has been fixed to 17.05.2016, as stated at the bar, at this stage it is too late to be considered that the rejection of the application filed under Order 6 Rule 16 read with Order 7 Rule 11 of the CPC can have any bearing.
19. Looking at the conduct of the appellant, it appears that she being a returned candidate, tries to adopt dilly dally tactics to complete her tenure. The learned Single Judge in paragraph-2 of his order specifically indicates as follows:
"This is the fourth journey of the petitioner to the Court. On three earlier occasions three separate writ petitions have been filed by the same petitioner and have been disposed of. This is a classic case of the petitioner abusing the process of law to fragment the proceeding, in which her election is challenged and thereby delayed the disposal of the election petition."
20. The caste certificate having been granted by the competent authority under the provisions of the Orissa Miscellaneous Certificate Rules, 1984, the question with regard to the fact whether the petitioner belongs to OBC category or not, or she has filed forged/fake certificate or not and on the basis of such certificate whether she can participate in the election from reserved seat of category of OBC, can only be considered on merits by properly constituted election petition filed before the appropriate forum in respect of an election dispute. In fact, the same is pending for consideration. The election having been held in the year 2012, in the meantime four years have expired and reasons for delay in disposal of such election petition is well founded as the appellant had got fourth journey to this Court and adopted dilly dally tactics so that the purpose of the Act is to be defeated. 14
Learned Single Judge is justified in directing disposal of the election proceeding within a time specified. Question No.(ii) is answered accordingly.
21. In view of the aforesaid facts and circumstances this Court finds no illegality or irregularity to have been committed by the learned Single Judge so as to interfere with the same in this intra-Court appeal preferred by the appellant. More so, the learned Single Judge has targeted the election dispute and directed the learned Election Tribunal -cum- District Judge, Puri to conclude the proceeding within a period of two weeks. Therefore, we are not inclined to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed. No order as to costs.
.................................
(Dr. B.R. Sarangi, J
Vineet Saran, C.J. I agree.
...............................
(Vineet Saran, C.J.)
Orissa High Court, Cuttack
The 16th May, 2016/Ajaya/PKSahoo