Orissa High Court
Niranjan Dalei vs Suryakant Dhall And Another .... ... on 6 February, 2024
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.1086 of 2023
Niranjan Dalei .... Petitioner
Mr. P.K. Rath, Sr. Advocate
-versus-
Suryakant Dhall and Another .... Opposite Parties
Mr. S. Ghose, Additional Government Advocate
Mr. S. Palit, Senior Counsel for Opposite Party No.1
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
6.2.2024 Order No.
04. 1. The matter is taken up through hybrid mode.
2. Heard Mr. P.K. Rath, learned senior counsel for the Petitioner and Mr. S. Palit, learned senior counsel for the Opposite Party.
3. The order of learned Civil Judge, Junior Division, Tigiria dated 12th December, 2022 passed in Election Petition No.1 of 2022 is challenged in the present writ petition.
4. In the impugned order the learned tribunal has allowed the petition of the election petitioner under Order 11 Rule 1 of C.P.C. in respect of interrogatories to the Election Officer
5. Present writ Petitioner, who is the elected candidate, questions the order of learned tribunal allowing such interrogatories to the Election Officer. Mr. Rath, learned senior counsel submits that first of all the Election Officer is not a necessary party to the election petition in terms of the provisions contained in the Orissa Gram Panchayat Act, 1964 (hereinafter referred as 'the OGP Act') and Orissa Gram Panchayat Election Rules, 1965 (hereinafter referred as 'the OGPE Rules') and therefore, his impleadment as opposite party in the election petition is not at all required. He further submits that in this regard a petition was filed by the elected candidate on 17th January 2023 before the tribunal to delete the Election Officer from the fray of parties, which is still pending before the tribunal.
6. It is next contended by Mr. Rath that, the procedures of C.P.C. in strict sense is not applicable to an election case under the OGP Act, particularly to call for interrogatories, and therefore, the prayer of the election petitioner resulting in passing of the impugned order is illegal. It is further submitted that earlier the prayer for production of such documents in respect of election held in Bindhanima and Jemadeipur Panchayats, with regard to casting of vote by thumb impression on the ballot paper, was rejected by the tribunal vide order dated 8th September 2022, which has attained finality being not challenged in any higher forum. Thereafter, the election petitioner has indirectly repeated the same prayer delivering interrogatories, which should not have been allowed by the tribunal.
7. Mr. Palit, learned senior counsel submits for Opposite Party No.1 that so far as adopting the provisions of Civil Procedure Code to call for interrogatories are concerned, it is very well applicable in election dispute cases under the OGP Act in terms of the provisions contained in Section 35 of the said Act. He further submits that the tribunal in earlier order dated 8th September, 2022 has rejected the prayer of the election petitioner regarding production of documents such as nomination paper, ballot papers, etc. and it is not the same as the prayer for interrogatories Page 2 of 9 are concerned in the present order. Present prayer of the election Petitioner is concerning the answer of the Election Officer with regard to adoption of fair procedure in all the Panchayats for holding elections to the office of Sarapanch. Since the casting of votes by putting thumb impressions on the ballot papers were adopted in the nearby Panchayats of Bindhanima and Jemadeipur, such interrogatories were asked by the election petitioner in order to have a fair procedure in the election.
8. So far as the contention relating to application of provisions of the Civil Procedure Code in the election dispute case is concerned, Section 35 of the OGP Act reads as follows:-
"35. Procedure before the [Civil Judge (Junior Division)] :- (1) Subject to the provisions of this Act and the rules made thereunder every election Petition shall be tried by the [Civil Judge (Junior Division)] as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits.
(2) The [Civil Judge (Junior Division)] shall not be required to record or to have the evidence recorded in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case.
(3) The [Civil Judge (Junior Division)] shall, for the purpose of deciding any issue receive so much evidence, oral or documentary, as he considers necessary and may require the production of any evidence.
(4) The [Civil Judge (Junior Division)] may, at any stage of the proceedings require the Petitioner to give further security for the payment of all costs incurred or which is likely to be incurred by any Opposite Party and if within the time fixed by him or within such further time as he may allow such security is not furnished, he may dismiss the Petition.
(5) No witness or other person shall be required to disclose the name of the person for whom he has Voted at an election. (6) The provisions of the Indian Evidence Act, 1872 (1 of 1872) shall, subject to the provisions of this Act, apply in the trail of an election Petition.Page 3 of 9
(7) Notwithstanding anything in any enactment to the contrary no document shall be inadmissible in evidence on the ground that it is not duly stamped or registered.
(8) Reasonable expenses incurred by any person in attending to give evidence may be allowed to such person which shall, unless the [Civil Judge (Junior Division)] otherwise directs, be deemed to be part of the costs.
(9) Any order as to costs passed by the [Civil Judge (Junior Division)] shall be executed by him on application made in that behalf in the same manner and by the same procedure as if it where a decree for the payment of money passed by himself as suit."
9. Further, Section 37 reads as under:-
"37. Powers of [Civil Judge (Junior Division)] :- The [Civil Judge (Junior Division)] shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect to the following matters, namely :
(a) discovery and inspection;
(b) enforcing the attendance of witness, and requiring the deposit of their expenses;
(c) compelling the production of documents;
(d) examining witnesses on oath;
(e) granting adjournments;
(f) reception of evidence taken on affidavit;
(g) issuing commissions for the examination of witness and may summon and examine suo motu any person whose evidence appears to him to be material; and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (5 of 1898)"
10. If the provisions of Section 37 and 35 will be read cumulatively, it would be clear that subject to provisions contained in Section 37, the provisions of the CPC shall be applicable for trial for the election dispute cases under the OGP Act as nearly as may be possible. The words 'subject to .. ..' appearing in section 35 mean that such provisions in the Page 4 of 9 CPC not inconsistent with the provisions of the OGP Act would be applicable in election dispute cases. Section 87 of the Representation of the People Act, 1951 contains similar provisions to that of section 35 of the OGP Act. This court in Tilottama Bhola @ Tilotama Bhol vs- Collector 2013(II) OLR 820, have observed that, most of the provisions relating to election and election petition in the laws governing Panchayats are in pari materia with the provisions contained in the Representation of the People Act, 1951, yet the procedural laws relating to panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting.
11. In Dr Rajendra kumara Bajpai vs- Ram Adhar Yadav and Others (1975) 2 SCC 447, the Hon'ble Supreme Court have held that;
"12. The matter, however, seems to be concluded by a recent decision of this Court in Virendra Kumar Saklecha v. Jagjivan, (1972) 1 SCC 826 where the Chief Justice speaking for the Court interpreted Section 87 of the Act and observed as follows:
Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Under Section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the civil courts subject to their supervision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code. The relevant part of Section 87 runs thus:
(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits:
A bare perusal of this section leads to the irresistible conclusion that election petitions shall have to be tried in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. In other words, election petitions would be tried like ordinary civil suits.Page 5 of 9
13. We are unable to agree with counsel for the appellant that Order XI does not form part of the trial of suits but is a special procedure. This is repelled by a reference to Order XI of the Code of Civil Procedure itself. It will appear that Order X relates to the procedure for examination of parties by the Court and Order XI is a part of that procedure, because it provides that where witnesses are not able to appear before the Court personally they are examined through interrogatories. In these circumstances, therefore, Order XI is as much a part of the procedure as Order X relating to trial of suits in matters regarding summoning of witnesses, documents etc. In these circumstances it cannot be said that Section 87 of the Act either expressly or impliedly excludes the application of Order XI of the Code of Civil Procedure. In fact we are clearly of opinion that Section 87 of the Act is of the widest amplitude so as to cover the entire procedure mentioned in the Code of Civil Procedure with only two exceptions-- (i) where the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code; and (ii) where a particular provision of the Code of Civil Procedure is either expressly or by necessary intendment excluded by the Act. Subject to these two exceptions, Section 87 is very wide in its connotation.
14. We, therefore, agree with the learned Single Judge who was trying the election petition that the application for interrogatories was one of the logical steps in aid of the prosecution of the petition and was fully covered by Section 87 of the Act. The second contention raised by counsel for the appellant thus fails."
12. In Kailash vs- Nankhu and others (2005) 4 SCC 480, it is concluded that;
"46. We sum up and briefly state our conclusions as under:
(i) The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for.Page 6 of 9
(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.
(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter."
13. In Smt Punama Sabara vs- Smt Borso Boni Raito 2013 (Supp-II) OLR 268, it is held as follows;
"7. On the rival contentions of the parties, the questions that arise for consideration by this Court are as follows:
(i) Whether procedure which specifically find place in Section 37 of the Act are applicable for trial of the election petition and not provisions of the CPC ?
(ii) Whether CPC being the common law, it has no application to the G.P. Act, which is a special statute and therefore, the concept of counter claim provided in Order 8 Rule-6A of CPC has no application in trial of election cases under the G.P. Act ?
(iii) Whether in view of Section 30 which provides that only election of a person can be challenged by filing an election petition, elected candidate is not entitled to file election petition and consequentially cannot maintain a counter claim ?
Xxx .. xxx .. xxx ..
10. Section 35(1) starts with the expression "subject to the provisions of this Act and the rules made thereunder" every election petition shall be tried by the Civil Judge (Junior Division) as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908. Therefore, if any provision is available under the Grama Panchayat Act and Rules made thereunder there is no need to take aid of CPC. Further, the provisions contained in the Grama Panchayats Act and Rules made thereunder shall prevail over the provisions/procedure of C.P.C.
Under Section 37 certain powers exercisable by the Civil Court are specifically vested with the Election Tribunal. If the contention of the petitioner is accepted that the CPC will be applicable only to Page 7 of 9 the extent enumerated under Section 37 then there was no need to enact Section 35 of which would otherwise render redundant.
11. Therefore, conjoint reading of Sections 35 and 37 makes it clear that in addition to powers enumerated under Section 37, the Election Tribunal shall apply the other provisions of CPC, as nearly as may be subject to provisions of Grama Panchayat Act while trying an Election petition.
12. Further contention of Mr. Dhal is that the Grama Panchayat Act being a special statute, the concept of counter claim as provided in CPC has no application for trial of Election petition. Such a stand cannot be sustainable in law since Section 35(1) of the Grama Panchayats Act itself provides that every election petition shall be tried by the Election Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, of course subject to provisions of the Grama Panchayat Act.
xxx .. xxx .. xxx
25. In view of the above settled legal position of law and in the facts and circumstances of the case, the reasons given by the learned Election Tribunal for rejecting the amendment petition are not legally sustainable. In any event, if the written statement filed by the defendant has already contained counter claim in the light of Order VIII, Rule 6A, the learned Tribunal should have allowed the amendment petition."
14. Further, a thorough reading of the provisions in Section 35 shows that the provisions of the CPC beyond the matters described in section 37 and not contrary to any of the provisions of the OGP Act are in addition to such provisions applicable in election dispute cases. Therefore, the conclusion would be that, such provisions of the C.P.C., which are not inconsistent with the provisions of the OGP Act, particularly Order 11 Rule 1 relating to interrogatories would be in addition to the provisions of Section 37 of the OGP Act. So, what is contended by Mr. Rath that the provisions of Order 11, Rule 1 would not be applicable in the present case is not found correct.
15. Before answering to other submission regarding addition of Election Officer as an opposite party, it is important to note here that the pendency of the petition dated 17th January, 2023 before the tribunal is Page 8 of 9 not disputed by the opposite party. Therefore it would be desirable on the part of the tribunal to dispose of said petition at the first instance before proceeding for delivering the interrogatories to the election officer. The reason being that, had the prayer of the elected candidate to delete the election officer would have been allowed then the question of delivering the interrogatories would not have arisen. In such circumstances, this court by refraining from giving any opinion with regard to necessity of addition of election officer as a party, feels it apposite to direct for disposal of the petition of the elected candidate dated 17th January, 2023. Accordingly this court directs the tribunal for an early disposal of the petition of the elected candidate dated 17th January, 2023, in accordance with law and keeping in view the provisions contained in Section 32 of the OGP Act. In this regard, the elected candidate is at liberty to raise all his contentions before the tribunal.
16. It needs to be observed here that since the issue of deletion of election officer as an opposite party is related to the present issue regarding calling for the interrogatories from the election officer, the impugned order dated 12th December, 2022 is kept in abeyance till passing of order by the tribunal disposing of the petition dated 17 th January, 2023. Present Petitioner is also granted liberty to challenge said order, if any, before appropriate forum.
17. With aforesaid observation and direction the writ petition is disposed of.
(B.P. Routray)
Signature Not Verified Judge
M.K. Panda Digitally Signed
Signed by: MANAS KUMAR PANDA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, Cuttack Page 9 of 9
Date: 13-Feb-2024 17:39:03