Orissa High Court
Surubali Deep vs Jamuna Naik And Others on 25 September, 2015
Author: Raghubir Dash
Bench: Raghubir Dash
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) NO.2154 OF 2015
(From the judgment dated 27.01.2015 passed by learned District
Judge, Balangir in F.A.O. (Election Appeal) No.17 of 2013 confirming
the judgment dated 22.11.2013 passed by the learned Election
Tribunal-cum-Civil Judge (Senior Division), Balangir in Election
Petition No.21 of 2012.
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Surubali Deep ... Petitioner
- Versus -
Jamuna Naik and others ... Opposite parties
For Petitioner ... M/s. H.S. Mishra, P. Agrawal,
Dr. A.K. Tripathy & K. Badhai
For Opposite Parties ... M/s. Sanjeev Udgata, S. Udgata
& A. Mishra
(For opposite party No.1)
Additional Standing Counsel
(For opposite party Nos.3 & 4)
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PRESENT:
THE HONOURABLE SHRI JUSTICE RAGHUBIR DASH
Date of hearing: 10.09.2015 Date of judgment : 25.09.2015
Raghubir Dash, J.On 22.2.2012 the petitioner in this writ petition was declared elected as a Samiti Savya of Bubel Gram Panchayat under Puintala Block. Opposite party No.1 herein filed Election Petition No.21 of 2012 before the Election Tribunal-cum-Civil 2 Judge (Senior Division), Bolangir challenging the election of the petitioner on two grounds:
(i) The petitioner was having more than
two children as on the cut off date;
(ii) She is not able to read and write Oriya.
The petitioner appeared before the Tribunal and filed her written statement denying the allegations made in the Election Petition. The learned Tribunal vide judgment dated 22.11.2013 (Annexure-3) allowed the Election Petition in part. Finding that the petitioner had more than two children as on the cut off date and that she was not able to read and write Oriya, the Election Tribunal declared the petitioner's election as invalid and void with further declaration that a casual vacancy to the post of Panchayat Samiti member of the said Gram Panchayat stood created.
2. The petitioner preferred an appeal against the judgment of the learned Election Tribunal before the learned District Judge, Bolangir who, vide judgment dated 27.1.2015 (Annexure-6), has confirmed the judgment passed by the learned Election Tribunal.
3. Making a prayer to quash Annexures-3 and 6, the petitioner challenges the impugned judgments contending that the learned Tribunal committed gross error of law holding that the petitioner does not know reading and writing Oriya and that she had given birth to her third child after the cut off date. It is 3 specifically contended that the learned trial court committed illegality by conducting a test in the court to find out the petitioner's ability to read and write Oriya even though opposite party No.1 had failed to adduce any acceptable evidence in support of her pleadings on such ability, more so when the Election Officer at the time of accepting the nomination of the petitioner was satisfied about the petitioner's such ability. As regards taking birth of the third issue either before or after the cut off date, it is contended that the learned trial court committed gross error of law in giving preference to the entry in the Admission Register to the entry in one Field Register/Survey Register.
Further contention is that the election petition is liable to be rejected on the ground that it is not in conformity with Order 6, Rule 15(2) of the C.P.C.
4. Learned counsel for the petitioner argues that when the party challenging the election failed to discharge the burden of making out a case that the petitioner was unable to read and write Oriya, learned Election Tribunal committed gross error of law in asking the petitioner to face a test asking her to read from some newspaper. In support of such contention, he has relied on a judgment of this Court in 2010 (Supp.-I) OLR - 73 (Labangalata Mallick v. Mandakini Mallick and others). Having carefully gone through the said judgment, I do not find any observation made 4 therein which supports the contention raised by the learned counsel for the petitioner. In the reported case, which relates to an election matter, the learned Election Tribunal during the course of hearing had permitted the winning candidate, whose election was challenged on the ground that she was unable to read and write Oriya, to read some pages from the book CHHABILA BARNOBODH and also asked her to read some sections of the Orissa Gram Panchayat Act in its Oriya Edition. It was found that the winning candidate was able to read but while so reading she committed several mistakes. She was also asked to write some Oriya Yuktakhyara words and while writing the same she committed number of mistakes.
Considering all these facts of that case this Court observed as follows:-
"It is true that the petitioner while reading "CHHABILA BARNOBODH" did not make any mistake and she committed some mistakes while reading the provision of the Orissa Grama Panchayat Act (Oriya Edition) which she was asked to read and she committed some mistakes while reading the portions dictated to her by the learned counsel for the opp. party no.1 in the Court below.
The portion dictated to the petitioner as quoted herein above contained "Yuktakhyaras" and though a person said to be knowing how to read Oriya should be able to write also Yuktakhyara, but it appears that the above quoted portion was purposely dictated to her which contained difficult conjuction of letters. Hence, this Court finds that the conclusion of the learned Courts below that the 5 petitioner did not know how to read and write Oriya is based on surmises and conjectures and as has been laid down by the Hon'ble Supreme Court, on such materials, a duly elected candidate should not be dislodge from the seat to which he/she has been elected."
5. Before going to make the above quoted observations this Court had referred to the following portion of the judgment in Kalabati Jena v. Dhaneswar Jena and three others, 2009 (Supp.II) OLR 344):-
"The phrase "Read and Write Oriya" has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed thereunder. It is, therefore, incumbent on the part of the Court to interpret the said phrase keeping in view the legislative intent for introducing such a disqualification clause in case of Sarpanch and Naib- Sarpanch inasmuch as to find out the object to be achieved by such introduction of the disqualification clause. A person, who can to some extent, read and write Oriya, cannot be said to be unable to read and write Oriya. The standard of reading and writing Oriya having not been specifically provided in the Act and the Rules, the Court cannot introduce a minimum standard of a candidate with regard to reading and writing Oriya. It is a common knowledge that even a candidate who has passed Oriya in Matriculation (H.S.C.) may commit various mistakes in writing his answers in Oriya. However, from the same, it cannot be concluded that such candidate does not know how to write in Oriya. Thus, the only interpretation of the phrase "Read and Write Oriya"
can be that the candidate should not be illiterate and should at least know how to read and how to write Oriya as a language to a standard as would be required for a person to function as a Sarpanch or a Naib-Sarpanch of a Grama Panchayat. In the instant case, the matter, which was provided to the writ petitioner, was a portion of the O.G.P. Manual 6 written in Oriya for reading the same before the Election Tribunal. A portion from the said book was also dictated to her by the Bench Clerk of the Court. The Court has found that the petitioner read the portion with much difficulty and in writing she committed several mistakes. It is a common knowledge that legal terms in Oriya are unique and an inhabitant of a Grama, who is otherwise eligible to contest the election for the seat of naib-Sarpanch or Sarpanch, can never be used to such terms......"
6. Thus, it becomes clear that when a person is able to read and write to some extent, he or she cannot be said to be unable to do so, even though the person is found to be committing several mistakes in the process of read and writing. In the case at hand the petitioner is totally unable to read and write Oriya. She could not read even though she was asked to read some writings in big letters appearing in certain newspaper. She also admitted her inability to read and write taking the plea that she had some defect in her eye sight which she allegedly developed about 4 to 5 months prior to her making deposition before Tribunal. Learned Tribunal, on thorough appreciation of evidence on record, discarded the plea of defect in her eye sight and concluded that she was unable to read and write Oriya. Therefore, learned Tribunal has committed no error arriving at a conclusion that petitioner is not able to read and write Oriya.
7. The plea that the Court could not have asked the petitioner to subject herself to a test during the course of hearing 7 is not tenable. In Labangalata Mallick's case the Tribunal had asked the winning candidate to read and write during course of hearing. That procedure adopted by the Tribunal was never disapproved of. The Election Tribunal has got the power to ask a witness before it to read and write if his ability to do so is disputed.
8. As regards the contention on appreciation of evidence by the learned Election Tribunal to take a decision as to whether the petitioner's 3rd child was born before or after the cut-off date, the learned Tribunal has rightly given preference to the entry in the School Admission Register vis-à-vis some entries made in one Family Survey Report (Ext.C) which does not contain the date of birth but merely indicates the age of the 3rd child of the opposite party No.1. This finding of fact has been confirmed by the learned Appellate Court. No perversity is shown to have been committed while appreciating the evidence on the disputed date of birth of opposite party No.1's third child.
9. Further contention is that the Verification of the Election Petition and the Affidavit, furnished in support of the pleadings contained therein, are defective and therefore the Election Petition is liable to be dismissed solely on that ground. In the Verification it is specified that the contents of paragraphs-2 and 4 of the Election Petition are true to the best of the knowledge and belief of the Election Petitioner and that of paragraph-3 are 8 true to her knowledge and information. This objection has been dealt with at length by the learned Election Tribunal and it was ultimately held that the defect, if any, in the Verification/Affidavit is not so material as to entirely throw away the case of the petitioner particularly when she herself has come to the witness box and the adversary was given full opportunity to cross-examine her.
10. It is a settled position of law that defects in Verification or an Affidavit is not fatal to the maintainability of the petition and the petition cannot be thrown solely on that ground. Such defect is curable in nature. In Smt. Pushpalata Parshuram Borukar and others v. Madhavlal N. Pittie and another, reported in 2005 A I H C 1084, it is observed that mere defects in pleadings cannot be a justification to non-suit the plaintiff at the stage when not only the proceedings before the trial court have been concluded after recording of the evidence but the proceedings at the appellate stage have also been concluded. Also in Kailash Singh v. Hiralal Dey, reported in AIR 1994 GAUHATI 12, it is held that the court should not be tied down with procedural technicalities but it should try to do substantial justice to the parties. In the case before the Gauhati High Court the Plaint and the Verification was not signed by the plaintiff but by his lawyer. The plaintiff appeared in the witness box and supported all the averments made in the 9 plaint. It was held that such defect amounts to an irregularity and it would be unfair and unjust to reject the plaint merely on the ground that the plaint was not properly signed/verified, more so when the plaintiff himself had come to the witness box and made out the case in the plaint.
11. Having regard to the procedural law regarding the Verification of the pleadings and the settled position of law narrated above, this Court is of the considered view that learned trial court rightly refused to accept the contention raised by the Respondent-Appellant. Since the Election Petitioner herself appeared before the Tribunal and the Tribunal on appreciation of evidence has come to a conclusion that the appellant's election as Panchayat Samiti Member of Bubel Gram Panchayat under Puintala Block is liable to be declared invalid on grounds that she was not able to read and write Oriya and that she had more than three children as on the cut-off date, which has been confirmed by the learned District Judge in F.A.O. (Election Appeal) No.17 of 2013, the impugned orders under Annexures-3 and 6 of the Writ Petition must not be set aside on the ground of defective Verification of pleadings.
12. In view of the above, I do not find any infirmity or illegality in the impugned orders so as to warrant any interference. 10
Accordingly, the Writ Petition is dismissed with cost. The interim order dated 16.2.2015 passed in Misc. Case No.2297 of 2015 stands vacated.
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Raghubir Dash, J.
Orissa High Court, Cuttack The 25th September, 2015/A.K.Kar, Secretary, D. Aech, Sr. Steno