Orissa High Court
Smt. Punama Sabara vs Smt. Borso Boni Raito on 23 November, 2012
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.10309 of 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Smt. Punama Sabara,
Wife of Kedara Sabara,
Village: Buchiguda, PO: Bapanabudi,
Siyali Grama Panchayat, Dist: Gajapati ... Petitioner
-Versus-
Smt. Borso Boni Raito,
Wife of Sankar Sabara,
Village: Peddamedi, PO: Kolla,
Siyali Grama Panchyat,
Tahasil : Kasinagar, Dist : Gajapati
and another ... Opp. Parties
For Petitioner : M/s. Prasanna Kumar Mishra
And S.K.Dash
For Opp. Parties : M/s. Harmohan Dhal,
B.B.Swain & A.K.Pattnayak
(For O.P.No. 1)
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgement: 23.11.2012
B.N. Mahapatra, J.This writ petition has been filed with a prayer to set aside the order dated 05.05.2012 passed by the Civil Judge (Junior Division), Parlakhemundi in Election Petition No.2 of 2012 rejecting the prayer of the petitioner to amend the written statement for inclusion of the counter claim to declare the election petitioner disqualified to be elected as Sarapanch.
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2. The fact of the case in a nutshell is that the election petitioner has contested for the post of Sarapanch, Siyali Grama Panchayat under Kasinagar block in the district of Gajapati and respondent No.1 before the Election Tribunal was also a candidate for the office of Sarapanch in the said Grama Panchayat. The election to the office of Sarapanch, Siyali Grama Panchayat was held on 13.02.2012 and respondent No.1 was declared elected having secured majority of votes. Challenging the election of respondent No.1, who is petitioner in the present writ petition, the election petitioner filed an election case seeking a declaration that the election of respondent No.1-petitioner as Sarapanch is void and the election petitioner has been duly elected as Sarapanch, Siyali Grama Panchayat. Respondent No.1-petitioner filed counter to Election Petition No.2 of 2012. Thereafter respondent No.1-petitioner filed a petition under Order-VI Rule, 17, read with Section 151, CPC to amend the counter filed by her. The said petition to amend the written statement for inclusion of counter claim to declare the election petitioner disqualified to be elected as Sarapanch was rejected. Hence, the present writ petition.
3. Mr.P.K.Mishra, learned counsel appearing for respondent No.1-petitioner submits that the Lower Court failed to apply its judicial mind and illegally rejected the amendment petition for inclusion of the counter claim, which is very much essential for complete adjudication of the case. The prayer of the election petitioner in the election petition was two fold, i.e., (i) to declare election of the returned candidate void, and (ii) to declare election petitioner as 3 elected Sarapanch in place of the returned candidate. By way of counter claim the petitioner wanted to bring a prayer that the election petitioner is not qualified to be declared as elected Sarapanch as she is not able to read and write Odia as required under Section 11 of the Orissa Grama Panchayat Act (hereinafter referred to as 'the Act') and hence is not entitled to hold the post of Sarapanch.
4. Mr.Mishra further submitted that the learned Court below failed to appreciate the very intention of the Legislature in introducing the provision for counter claim to reduce the multiplicity of the proceeding and to deliver a judgment which would be complete in all respect. Since the claim of the election petitioner is to declare her as elected Sarapanch in addition to the prayer for declaring the election of respondent No.1-petitioner as invalid, it is very much necessary to decide whether or not the election petitioner is entitled to hold the post, in the event the election of the returned candidate is declared invalid. Learned Court below has committed serious error of law in holding that there is no provision in the Grama Panchayats Act to entertain a counter claim. Section 35 of the Act authorises the learned Civil Judge (Junior Division) to try the Election Petition as nearly as may, in accordance with the procedure laid down in the CPC. Thus, power is vested with the learned Civil Judge (Junior Division) to entertain application other than the power specifically mentioned in Section 37 of the Act. No objection was filed by the election petitioner at the time of scrutiny of nomination paper. Learned Court below is not justified to reject the petition for amendment of written statement 4 of Respondent No.1-Petitioner by observing that there is no provision in the Act to entertain the counter claim.
5. Per contra, Mr.H.M.Dhal, learned counsel appearing on behalf of the election petitioner submitted that there is no illegality or infirmity in the order passed by the learned Election Tribunal. The Orissa Grama Panchayats Act is a special statute in which procedure for filing election petitions and disposal thereof has been provided in Sections 30 to 43. Section-30 provides that only election of a person can be challenged by filing an election petition. Respondent No.1- petitioner has won the election and therefore the election petitioner is only competent being the only contestant of Respondent No.1- Petitioner to maintain an election petition. Respondent No.1-Petitioner having been declared elected as Sarapanch is not entitled to file election petition and consequentially cannot maintain a counter claim. Therefore, within the scope and ambit of the G.P. Act, since there is no provision for filing counter claim, the learned Civil Judge is absolutely justified in rejecting the counter claim filed by Respondent No.1-petitioner as not maintainable. The Code of Civil Procedure is the common law which has no application to the special statute since the provisions of the C.P.C. are not applicable for filing and disposal of election petitions under the G.P.Act. Right to elect is neither a fundamental right nor a common law right. It is purely a statutory right. Therefore, the right to dispute an election ought to be within the framework of the statute. An election petition is not an action at common law. It is a statutory proceeding to which neither the 5 common law nor the principles of equity apply but only those rules which the statute provides apply. In support of his contention, Mr.Dhal relied on the decisions of the Hon'ble Supreme Court in the cases of Jyoti Basu and others Vs. Debi Ghosal and others; AIR 1982 SC 983 and Surjit Kaur Vs. Garja Singh and others, AIR 1994 SC 135.
6. Mr. Dhal further submitted that although Section-35 provides that subject to the provisions of the Act and Rules the election petition shall be tried by the Civil Judge in accordance with the procedure applicable under C.P.C. for trial of the suits yet Section 37 specifically states which of the provisions of C.P.C. shall be made applicable. Therefore, only those procedures which specifically find place in Section 37 of the Act are applicable for trial of the election petitions and not other provisions of CPC. In view of the provisions contained in Section 38 of the Act, it is only the election petitioner who alone can be granted relief and none else. Learned Civil Judge is competent to declare the election of returned candidate void on the ground mentioned in Section 39 of the Act, which grounds are not available to a respondent. Therefore, the counter claim is wholly uncalled for and not maintainable and therefore, it is an otiose.
7. On the rival contentions of the parties, the questions that arise for consideration by this Court are as follows:
(i) Whether procedures which specifically find place in Section 37 of the Act are applicable for trial of the election petition and not provisions of the CPC?6
(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?
8. Since question Nos. (i) and (ii) are inter-linked they are dealt with together.
9. To deal with questions Nos.(i) and (ii), it is necessary to refer to Sections 35(1) and 37 of the Grama Panchayat Act, which are reproduced below:
"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."
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 of 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;
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(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. 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 CPC. 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 the extent enumerated under Section 37 then there was no need to enact Section 35 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.
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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 Produce, 1908, of course subject to provisions of the Grama Panchayat Act.
13. The Hon'ble Supreme Court in the case of Kailash V. Nanhku and others, AIR 2005 SC 2441 held as under:-
"8. Sub-section (6) of Section 86 of the Act requires trial of an election petition to be continued from day to day until its conclusion, so far as is practicable consistently with the interests of justice in respect of the trial, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Sub-section (7) requires every election petition to be tried as expeditiously as possible with an endeavour to conclude the trial within six months from the date of presentation of the election petition. Thus, the procedure provided for the trial of civil suits by the CPC is not in its entirety applicable to the trial of election petitions. The applicability of the procedure is circumscribed by two riders; firstly, the CPC procedure is applicable "as nearly as may be"; and secondly, the CPC procedure would give way to any provisions of the Act and of any rules made thereunder.
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45.
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(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 the CPC apply to the 9 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 the CPC on the other hand, the former shall prevail over the latter.
xx xx xx"
14. Mr.Dhal in support of his contention that Election case has to be tried strictly in accordance with the provisions of Election law and common law has no application, relied upon paragraph 8 of the judgment of Hon'ble Supreme Court in the case of Jyoti Basu (supra).
In paragraph 8 of the judgment in the case of Jyoti Basu (supra), the Hon'ble Supreme Court held as under:-
8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, Is what the statute lays down.10
In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?
15. Judgment of the Hon'ble Supreme Court in the case of Jyoti Basu (supra) is of no help to opposite party No.1. In that case, the question was as to who are parties to an election dispute and who may be impleaded to be a party to an Election petition. The Representation of the People Act provides who are the parties of an election petition. The same must be strictly complied with. However, in that judgment, the Hon'ble Supreme Court no where stated that the provisions of CPC have no application if any provision relating to trial of Election petition is absent in the Representation of the People 11 Act. On the other hand, learned Hon'ble Supreme Court in Jyoti Basu (supra) held as under :-
"10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the court "effectually and completely to adjudicate upon and settle all questions involved" may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only "as far as may be" and subject to the provisions of the Representation of the People Act, 1951 and the Rules made thereunder. Section 87(1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked."
16. Learned counsel for the petitioner further placed reliance on paragraphs 8 and 9 of the judgment of the Hon'ble Supreme Court in Surjit Kaur (supra). The facts of that case are completely different from the fact of the case at hand. Therefore, it has no application to the present case.
17. It is true that in the Grama Panchayats Act there is no provision for filing of the counter claim. Order VIII, Rule 6A, CPC provides for filing of counter claim. At this juncture it may be beneficial to refer to some of the decisions of the Hon'ble Supreme Court with regard to filing of counter claim.
18. Counter-claim must have to be filed before or after filing of the suit but before expiry of time limited for delivering the defence by the defendant. (See Mangulu Pirai vs. Prafulla Kumar Singh and others, AIR 1989 Ori. 50).
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19. Counter-claim can be filed even after written statement is filed and also can be brought into by way of amendment to written statement. (See Mahendra Kumar and another vs. State of Madhya Pradesh and others, AIR 1987 SC 1395).
20. The Hon'ble Supreme Court in the case of Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508, held as under:
"28. Looking to the scheme of O. VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under R. 1 may itself contain a counter-claim which in the light of R. 1 read with R. 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by R. 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under R. 9. In the latter two cases the counter- claim though referable to R. 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under O. VI, R. 17 of the C. P. C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O. VIII, R. 9 of the C. P. C. if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings."
21. Counter claim is expressly treated as a cross suit including the duty to aver his cause of action and also on payment of 13 requisite court fee thereon. It could be decided in the suit without relegating a party to file fresh suit. Plaintiff shall be given an opportunity to file written statement to answer counter claim of the defendant within such period as may be fixed by the Court. Counter claim is governed like the Rules of pleading of the plaint. (See Jag Mohan Chawla and another, v. Dera Radha Swami, Satsang and others, AIR 1996 SC 2222).
22. In the present case, perusal of the counter-claim filed by Respondent No.1 (Annexure-2) clearly shows that the written statement contains counter claim. Paragraph-7 of the written statement which contains such counter claim, is extracted below:
"7. That the Respondent No.1 further submits that the petitioner does not know reading and writing Oriya and she did not attain 21 years of age as per See 11 (b) of Orissa Gram Panchayat Act, 1964. The petitioners' date of birth is 04.10.1991 as per the School Register Admission No.364, dtd. 9.7.2011 of S.Rautpur School, PS: Garabandha, Dist: Gajapati. The Respondent No.1 through her relative take steps to obtain the copy of the extract of the Admission Register through her relative taken steps to obtain the copy of the extract of the Admission Register through R.T.I. and the Respondent No.1 is relying upon such entry."
23. The above pleading is nothing but a counter claim which is in the light of Order VIII, Rule 1 read with Rule 6A of C.P.C.
24. The writ petitioner by way of filing the petition for amendment of the written statement under Order 6 Rule 17 C.P.C. read with Rule 151, C.P.C. wanted to bring the counter claim in detail 14 in its written statement by amending the pleadings and prayer portion of the written statement.
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.
26. The other reason assigned by the learned Civil Court that in view of Section 40 of the Act since the sole ground of challenge of election of returned candidate is that at the time of filing of nomination and election, Respondent No.1-petitioner was unable to read and write Odia and the Election Petitioner has not taken any other stand to challenge the election of Respondent No.1, in case Respondent No.1 is found disqualified to be the Sarapanch, in her place the election petitioner cannot be declared to be the Sarapanch and according to Section 38(2)(a) of the G.P. Act a casual vacancy will be created is not sustainable in law. Section 40 clearly provides that if the Election Tribunal is of opinion that in fact election petitioner or such other candidate received the majority of valid votes he shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. As it appears, the Election Tribunal has failed to notice that in between clause '(a)' and '(b)' in Section 40, there is 'or'. 15 Similarly, he has also not noticed that the word 'either' appears before clause (a) starts and there is 'or' in between clause '(a)' and '(b)' in Sub-section (2) of Section 38 of the G.P. Act.
27. At this juncture, it is relevant to refer to Section 97 of the Representation of the People Act, 1981, which deals with recrimination when seat claimed. Section-97 of the Representation of the People Act provides as under;-
"97. Recrimination when seat claimed.--(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election:
Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118, respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner."
28. Section 44-I of the Panchayat Samiti Act also contains provision similar to that of Section 97 of the Representation of the People Act. However, there is no such similar provision in the Grama Panchayats Act, but Order 8 Rule 6A, CPC provides a procedure for filing of counter claim by the defendant.
29. The matter can be looked at from a different angle. The contention of the election petitioner is that since Section 30 only 16 entitles a defeated candidate to file an Election petition to declare the election of the returned candidate void, the returned candidate has no right to file an Election petition and consequentially counter claim. If such an argument is accepted then a defeated candidate who is otherwise disqualified shall hold the post of Sarapanch or the Ward member, as the case may be. To illustrate, let us take the claim and counter claim of the present case. If the counter claim of the returned candidate that the election petitioner does not know how to read and write Odia and she was below 21 years old on the date of filing nomination is true and in the present case, the election of the returned candidate shall be declared invalid and the petitioner will be declared as elected Sarapanch then in spite of the fact that he is disqualified under Section 25 of the Grama Panchayat Act he will hold the office of Sarapanch. This is certainly not the intention of the Legislature. Therefore, in the interest of justice a counter claim should have been permitted. In all fairness, the election case should also be decided in its entirety to avoid multiplicity of proceedings. This is more necessary when the election petitioner's prayer is two fold, i.e., to declare election of the returned candidate to be void and after declaring election of the returned candidate void to declare the Election petitioner as elected Sarapanch. If counter claim is not allowed, the result would be disastrous, when there are only two contesting candidates and the Election Tribunal declares the returned candidate disqualified, removes him from the office of Sarapanch and allows another disqualified candidate to hold the office. 17
30. In view of the above, the impugned order dated 05.05.2012 passed by the Civil Judge (Junior Division), Parlakhemundi in Election Petition No.2 of 2012 rejecting the prayer of the respondent- 1- petitioner to amend the written statement for inclusion of the counter claim to declare the election petitioner disqualified to be elected as Sarapanch is set aside. The Election Tribunal is directed to consider the Respondent-petitioner's application to amend the written statement for inclusion of her counter claim in the light of the observation/finding of this Court made supra within a period of two weeks from the date of production of certified copy of this judgment.
31. In the result, the writ petition is allowed with the aforesaid observation and direction.
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B.N. Mahapatra,J.
Orissa High Court, Cuttack The 23rd November, 2012/ss/skj.