Orissa High Court
Pravat Kumar Pradhan vs Bijayananda Bairiganjan And Others on 27 April, 2016
Author: C.R. Dash
Bench: C.R. Dash
ORISSA HIGH COURT: CUTTACK.
W.P.(C) No. 6131 of 2014
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
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Pravat Kumar Pradhan ....... Petitioner
-Versus-
Bijayananda Bairiganjan & others ....... Opp. Parties
For Petitioner : M/s. Rama Chandra Sarangi,
S.S. Mohanty.
For O.P. No.1 : M/s. Pradipta Kumar Mohanty
(Sr. Advocate)
&
M/s. D.N. Mohapatra,
J. Mohanty, P.K. Nayak,
S.N. Das.
PRESENT :
THE HONOURABLE SHRI JUSTICE C.R. DASH
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Date of Judgment : 27.04.2016
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C.R. Dash, J.The confirming appellate judgment dated 19.03.2014 passed by the learned Additional District Judge, Nayagarh in Election Appeal No.707/03 of 2012-2013 as well as the original Judgment passed by the Election Tribunal-cum-Addl. Civil Judge (Junior Division), Ranpur in 2 Election Misc. Case No.2 of 2012 on 10.09.2012 are impugned by the petitioner in this writ application as illegal and invalid.
2. Petitioner is the elected Sarpanch of Gourangapur Grama Panchayat of Nayagarh district. Opposite Party No.1 was the election petitioner before the learned Election Tribunal and Respondent No.1 before the appellate court. Election for the post of Sarpanch of Gourangapur Grama Panchayat was held in February, 2012. Initially, counting of ballots was held and the present O.P. No.1 was found to have polled 766 votes and the present petitioner, who was O.P. No.1 before the Election Tribunal, was found to have polled 754 votes. There was application for recounting by both the parties. The Election Officer held recounting and it was found that the present petitioner has polled 826 votes and the present O.P. No.1 has polled 802 votes. It is alleged that, without complying with the provisions contained in Rule- 51 of the Orissa Grama Panchayat Rules, without conforming to the Forms 8-A & 8-B and without declaring the result first before ordering for recounting, the Election Officer has contravened the provisions of the Orissa Grama Panchayat Act, 1964 ('Act' for short) and Orissa Grama 3 Panchayat Election Rules, 1965 ("Election Rules" for short), and therefore the election is null and void. Alleging some other grounds also, the present O.P. No.1 filed the election dispute before the Election Tribunal. The present petitioner and other Opp. Parties filed their written statements separately refuting the allegation of the present Opp. Party No.1 (Petitioner before the Election Tribunal).
3. Learned Election Tribunal framed the following issues :-
"(I) Whether the misc. case is maintainable ?
(II) Whether the misc. case is barred by law of limitation ?
(III) Whether the misc. case is bad for non-
joinder of necessary parties ?
(IV) Whether on the date of filing nomination the opposite party No.1 was holding any office of profit under the State or Central Government or any local authority ?
(V) Whether during panchayat election 2012 some persons have casted votes unauthorisedly in the name of dead and absent voters at Ward 2, 3, 4 of said panchayat and some voters have casted votes both at said panchayat and Pimpal panchayat ?
(VI) Whether the election officer allowed the recounting petition of the agent of opposite party No.1 violating the provision of law and has declared 4 opposite party No.1 as elected, violating provision of Orissa Grama Panchayat Election Rules ?
(VII) Whether the election of opposite party No.1 to the post of Sarapanch of Gourangapur Grama Panchayat held in the year 2012 is void ?
(VIII) Whether petitioner is to be declared as duly elected candidate for the post of Sarapanch of Gourangapur Grama Panchayat ?
(IX) Whether the petitioner is entitled for any other relief ?"
Issue Nos.6 & 7 extracted supra from the impugned judgment of the Election Tribunal was answered in favour of present O.P. No.1 (Election Petitioner before the Tribunal).
The election was held to be null and void, and the present O.P. No.1 was declared to be elected by the learned Election Tribunal. The present petitioner preferred appeal. Learned appellate court, on consideration of the submissions advanced by learned counsel for the parties, confirmed the Judgment passed by the learned Election Tribunal, especially on the ground that, where a Statute requires to do certain thing in a certain way, the thing must be done in that way, and the Election Officer in the present case having not followed the mandate of Rule- 51 of the Election Rules, 5 the outcome of recounting has materially affected the election result.
4. Learned counsel for the petitioner emphatically submits that learned courts below have completely overlooked the provisions of Section- 39 (2) of the Act and without necessary pleadings and corroborative proof by the election petitioner as to how the irregularity or informality committed by the Election Officer has affected the result of the election, have jumped to their own conclusion that the error / irregularity committed by the Election Officer has materially affected the result of the election. Such a course adopted by the learned courts below becomes vulnerable and makes the Judgments passed by the learned courts below invalid and illegal.
Learned counsel for the Opp. Party No.1, on the other hand, submits that both the courts below having come to a concurrent finding of facts, this Court, in exercise of the power of judicial review should not interfere in such concurrent finding of facts, and it is further submitted that there being contravention of Rule- 51 of the Election Rules, learned courts below have rightly come to the conclusion 6 that the action of the Election Officer has materially affected the result of the election.
5. Coming to the exercise of power of judicial review, it is well settled in law that generally the High Court should not interfere so far as concurrent findings of facts by the learned court below are concerned, but when there is defect in the decision making process itself, it is open for the High Court to exercise the power of judicial review.
6. Learned counsel for the petitioner submits that Section- 39 (2) of the Act and Section- 100 (1) (d) (iv) of the Representation of the People Act, 1951 on the questions relating to non-compliance of provisions materially affecting the result of the election are parimateria provisions. So far as breach or non-compliance of Constitution of India or the statutory provisions are concerned, learned counsel for the petitioner relies on the case of Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314, Kalyan Kumar Gogoi v. Ashutosh Agnihotri and another, (2011) 2 SCC 532 and other similar decisions on the points, which I do not feel inclined to repeat in order to avoid multiplication of citations on similar points in the body of the Judgment. 7
7. From the decisions cited by learned counsel for the petitioner, which relates to the provisions under Representation of the People Act, it is clear that mere non- compliance or breach of the Constitution or the statutory provision by itself does not invalidate election of the returned candidate, and it is essential for the election petitioner to aver and prove by pleading material facts that result of the election of returned candidate was materially affected by such breach or non-compliance. It is further settled that, it is only on the basis of such pleadings and proof that court can form an opinion and record a finding thereon before declaring election of the returned candidate void. It is further settled in law that the standard of proof to be adopted, while judging the question whether the result of the election in so far as it concerns the returned candidate is materially affected, would be one of proof beyond reasonable doubt or beyond the pale of doubt.
8. Learned Election Tribunal, while arriving at the finding under Issue Nos. 6 & 7, has held thus :-
"Hence, in view of above principle laid down by Hon'ble court and as per the provisions of Rule.51 of the Rules the election officer must give reason for allowing and rejecting the application for recounting of votes and application of recounting 8 can only be made after declaration of result in Form No.8-B. But in the instant case the election officer has not assigned any reason, while allowing the application for recounting. So, there was complete violation of sub-rule 4 of Rule. 51 of the Rules. Furthermore, as it is clear from Ext.5, the copy form No.8-B of Gourangapur Grama Panchayat and from evidence of P.W.3 that Form No.8-B was prepared after recounting that means at the time of allowing recounting petition, there was no declaration of result as per provisions of law and the election officer has not applied the election rules provided under sub-rule 1 of Rule. 51 of the Rules. So, the recounting applications, which was allowed by the election officer before preparation of Form No.8-B and prior to due declaration of election result, is illegal and invalid."
9. Learned appellate court in Paragraphs - 37 & 38 of the impugned Judgment has held thus :-
"37. That apart the object of framing of the election rules is to make election transparent and to up hold the real mandate of the people. When the act of the election conducting officers found contrary to law and makes out a circumstances to doubt the real mandate of the people the courts should have taken attempt to make the result of the process transparent and to satisfy himself that the person holds the chair has got the support of real mandate of the people.
38. In the case at hand, the pleading of the election petitioner disclosing that according to results noted in form No.8-A from the results informed by Presiding Officers of all wards in form No.8-Ka when shows the election petitioner has owned the election by getting 12 votes more, the recounting made by the election officer by departing himself from election rules shows that the appellant has owned the election by getting 826 votes and the respondent No.1 lost the election by getting 802 votes. This itself shows that due to illegal recount by election officer materially 9 changed the result of the election and number of votes shown to have been received by the candidate and such material difference, amounts that the illegal act of the election officer materially affected the result of the election."
10. Learned counsel for O.P. No.1 relies on the case of Chaitanya Prasad Das v. Banamali Swain and others, 2010 (Supp.-I) OLR 1025, wherein it is observed that "due to violation of the provision, the ballot papers were illegally recounted and consequentially the result was reversed. So, it cannot be said that the said error did not materially affect the result of the election."
11. The election has been declared null and void in the present case on the basis of Section- 39 (1) (e) of the Act. For ready reference, Section- 39 of the Act is reproduced below :-
"39. Grounds for declaring election void - (1) The [Civil Judge (Junior Division)] shall declare the election of a returned candidate void, if he is of the opinion-
(a) that on the date of his election the candidate was not qualified or was disqualified to be elected under the provisions of this Act or the rules made thereunder ; or
(b) that any corrupt practice has been committed by the candidate ; or 10
(c) that any nomination paper has been improperly rejected or accepted ; or
(d) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes for any other reason was not duly elected by a majority of lawful votes ; or
(e) that there has been any non-compliance with or breach of any of the provisions of this Act or of the rules made thereunder:
Provided that in relation to matters covered by Clause (a) the [Civil Judge (Junior Division)] shall have due regard to the decision, if any, made under Section 26 before making a declaration under this section.
(2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election."
12. Section- 100 (1) of The Representation of the People Act is also reproduced below for ready reference :-
"100. Grounds for declaring election to be void.- [(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion -
(a) that on the date of his election a return candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [***] [or the Government of Union Territories Act, 1963 (20 of 1963)] ; or
(b) that any corrupt practice has been committed by a returned candidate or 11 his election agent or by any other person with the consent of a returned candidate or his election agent ; or
(c) that any nomination has been improperly rejected ; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void."
13. From perusal of the aforesaid rules, it is found that, under the Act, non-compliance with or breach of any of the provisions of the Act and the Rules made thereunder is a ground to declare the election of a returned candidate void, if the Election Tribunal from the material on record is able to form such an opinion. In the Representation of the People 12 Act, however, according to Section- 100 (1) (d), the ground is that the result of the election, in so far as it concerns a returned candidate, has been materially affected on different grounds including (iv) of the said section, which provides thus:-
"by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act."
The words "result of the election, in so far as it concerns a returned candidate", are absent in the Grama Panchayat Act and the Election Rules. It is a matter of common sense and also settled law that a petitioner is required to plead the facts constituting the very ground / grounds to declare election null and void. Here, in this case, the election of the present petitioner has been declared null and void under Section - 39 (1) (e) of the Act. The decisions cited by learned counsel for the petitioner in the cases of Mangani Lal Mandal and Kalyan Kumar Gogoi (supra) are related to Section- 100 (1) (d) (iv) of the Representation of the People Act, which is altogether a different ground to declare an election null and void in the said Act. As Section 100 (1) (d) of Representation of the People Act is a ground in itself to declare an election void on four grounds specified as 13
(i), (ii), (iii) & (iv) in that Section, the petitioner in an election petition concerning election to Legislative Assembly or Lok Sabha is required to plead and prove that the result of the election so far as it concerns the returned candidate was materially affected by breach or non-compliance of the Constitution, Act, etc. There being no similar ground to Section 100 (1) (d) of the Representation of the People Act in the Grama Panchayat Act, I am constrained to hold that the decisions cited by the learned counsel for the petitioner in the cases of Mangani Lal Mandal and Kalyan Kumar Gogoi (supra) and other similar decisions are not applicable to the facts of the present case.
14. The election petitioner (present Opp. Party No.1) in the election petition in paragraph- 8 has specifically pleaded as to what are the contravention of the Act and Rules made by the Election Officer. The Election Officer being examined as P.W.3, in paragraph- 7 of his examination-in-chief has testified that after declaration of result, both the petitioner and Opp. Party No.1 had filed petitions for recounting and he had allowed both the petitions, but he had not endorsed any specific reason for allowing the petition for recounting. It is also corroborated 14 by P.W.3 that before ordering recounting, he had not declared the result of the election in Form No.8-B showing the present Opp. Party No.1 as elected, though he had polled highest votes after the first counting. It is, therefore, clear that the Election Officer has not assigned reasons for ordering recounting and he has not declared election result in Form No.8-B before ordering recounting as required under Rule 51 of the Election Rules. Both the aforesaid reasons deposed ipse dixit by the Election Officer (P.W.3) amounts to contravention of Rule- 51 of the Election Rules, as held concurrently by both the learned courts below.
15. At this juncture, learned counsel for the petitioner relies on the case of Smt. Bauri Dehuri v. Smt. Kamala Pradhan and others, 2001 (II) OLR 128, wherein, relying on Section- 39 (2) of the Act, this Court has held that, even if there has been any irregularity on the part of the Election Officer charged with carrying out the provisions of the Act, or any rules made thereunder, unless such mistake, error, irregularity or informality had materially affected the result of the election, such election should not be declared void merely on the ground of any such mistake or irregularity. This Court, in the case of Smt. Bauri Dehuri 15 (supra) was in seisin over the matter so far as ground enumerated in Section 39 (1) (d) of the Act, which relates to improper rejection or admission of one or more votes is concerned. In that case, some votes were cast in the name of dead persons, as alleged by the election petitioner, but there was neither definite pleading nor any proof as to in whose favour the votes of dead persons had been cast. In absence of any such pleading or proof, it was difficult to conclude that the result of the election had been materially affected. But in the present case, the matter is concerned with ground enumerated in Section- 39 (1) (e) of the Act, i.e., Contravention of the Act and Rules made thereunder. Such contravention has been proved ipse dixit by the Election Officer (P.W.3) himself and there is also pleading to that effect in paragraph- 8 of the election petition. In that view of the matter, the case of Smt. Bauri Dehuri (supra) has no application to the facts of the present case.
16. Learned counsel for Opp. Party No.1 relies on the case of Chaitanya Prasad Das (supra). In the said case, this Court was in seisin over the matter so far as the election to Member of Panchayat Samiti is concerned. This Court, taking into consideration the relevant provisions of 16 Panchayat Samiti Election Rules, 1991, Panchayat Samiti Election Act and the Representation of the People Act, came to a conclusion that, there is no provision in sub-section (2) of Section 44 (L) of the Panchayat Samiti Act like "so far as it concerns a returned candidate". According to Section- 44 (L) of the Act, the sub-ordinate Judge shall declare the election of the returned candidate void, if in his opinion there has been any non-compliance with the order, breach of any provision of the Act or the Rules made thereunder, subject to sub-section (2) of the said Section. On the aforesaid fact, this Court distinguished the decision of the Hon'ble Supreme Court pressed by learned counsel for the petitioner of the case in the case of Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541, which is a decision relating to Representation of the People Act. The decision in the case of Chaitanya Prasad Das (supra), therefore, squarely applies to the facts of the present case.
17. Taking into consideration the discussion supra, I am constrained to hold that, there having been breach of Rule- 51 of the Election Rules in letter and spirit, the Election Officer has committed an illegality, which can very well be distinguished from 'mistake', 'error', 'irregularity' or 17 'informality' as outlined in Section 39 (2) of the Act, and the learned courts below have rightly come to their conclusion in allowing the election petition. I do not find any infirmity in the decision making process by the learned courts below.
18. So far as other submissions of the learned counsel for the petitioner are concerned, discussion on those shall merely be academic in nature in view of my findings supra.
19. In the result, the writ application is devoid of any merit and the same is accordingly dismissed.
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C.R. Dash, J.
Orissa High Court, Cuttack.
The 27th April, 2016/Subha/Parida.