Orissa High Court
Manoj Das vs Ganesh Sahoo & Ors. : Opposite Parties on 7 February, 2023
Author: Biswanath Rath
Bench: Biswanath Rath
A.F.R
ORISSA HIGH COURT : C U T T A C K
W.P.(C) No.11270 of 2022
An application under Articles 226 & 227 of
the Constitution of India
Manoj Das : Petitioner
-Versus-
Ganesh Sahoo & Ors. : Opposite Parties
For Petitioner : Mr. G. Mukherji, Sr. Adv.
M/s. K.K. Jena,
A. Mukherji,
A.C. Panda,
A. Mishra, S. Acharya
For Opposite Party No.1 :
For Opposite Party No.2 : M/s. B. Mohanty,
D. Chhotray,
B. Moharana
M/s. B. Mohanty,
S. Das
Miss D. Mahapatra,
Advocate
For Opposite Party No.3 : Mr. S. Ghose,
Addl. Govt. Adv.
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH Date of hearing: 31.01.2023 :: Date of Judgment : 07.02.2023
1. This writ petition involves a challenge to the order dated 25.04.2022 passed by the Civil Judge (Jr. Divn.)-cum-Election Tribunal, Page 1 of 15 // 2 // Jajpur in Election Misc. Case No.4 of 2022 i.e. a dispute under the provisions of the Odisha Grama Panchayats Act, 1964 hereinafter in short be reflected as "the Act, 1964". This writ petition involves only rejection of application for transposition of the present Petitioner as Petitioner in the Election Petition No.4 of 2022 on the withdrawal of the Election Petition.
2. Factual background as narrated and disclosed in the course of hearing appears to be, election for the post of Sarpanch in Alakund Gram Panchayat under Binjharpur Panchayat Samiti was held on 20.02.2022. All total seven candidates including the present Petitioner and Opposite Party Nos.1 & 2 herein filed their nomination. Out of seven candidates Opposite Party No.2 namely Sushant Das got elected for polling maximum votes. Present Petitioner secured second position, however, Opposite Party No.1 herein being defeated candidate positioned at Sl.No.2 in the defeated candidate list for polling votes next to the present Petitioner herein.
3. Challenging the election of Opposite Party No.2 herein the Opposite Party No.1 herein filed Election Dispute vide Election Case No.4 of 2022 and the present Petitioner was impleaded there as Opposite Party No.2. In the election dispute after issuance of notice and filing of written statement the election Petitioner, the present Opposite Party No.2 had colluded resulting Opposite Party No.1 herein filed application for Page 2 of 15 // 3 // withdrawal of the Election Petition on the premises that it is not possible on his part to collect evidence to satisfy his case. Petitioner in the present writ petition being the defeated candidate and as the election Petitioner colluded to frustrate the election dispute, brought an application U/o.23 Rule 1-A read with order 1 Rule 10 of the C.P.C. Both these applications were taken together and the Election Tribunal came to allow withdrawal of the election dispute and in the same order dated 25.04.2022 at Annexure-5 refused the prayer of the present Petitioner for transposing him in place of the election Petitioner. Hence this writ petition.
4. Mr. Mukherjee, learned Sr. Advocate appearing on behalf of the Petitioner advancing his submission in his attempt to challenge the order at Annexure-5 took this Court to the provision at Order 23 Rule 1-A read with Order 1 Rule 10 of C.P.C. and submitted that there is clear provision for bringing an application for transposition. In this contingency taking this Court to the provision at Order 23 Rule 1-A of the C.P.C. Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner attempted to establish that there was no difficulty in bringing such application. It is next taking this Court to the provision at Section 27(3)(iv) of the Act, 1964 Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner contended that for the provision referred to hereinabove, the dispute involved in the election petition is covered by the provision at Section 27(3)(iv) of the Act, 1964 and further Page 3 of 15 // 4 // contended that in the special contingency for there is no provision in the Act, 1964 to bring new party by way of transposition, there is application of provision at Section 112 under the Representation of People Act mutatis mutandis. It is further taking this Court to the provision at Section 112 of the Representation of People Act, 1951 particularly through the provision at Sub-Section 3 of Section 112 therein contended that there is clear provision in bringing proper party in place of the Petitioner in case there is withdrawal of the proceeding, but however within the time stipulation specified therein.
5. It is, in the above circumstance, Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner while claiming that the application involved in the election dispute was in clear terms of the above legal provisions, also attempted to establish the claim of the Petitioner through some judgments of different Courts. In the process Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner first took this Court to a judgment of the Patna High Court in CWJC No.8788 of 2003 decided on 22.09.2004. Reading through the same Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner attempted to take support of the judgment. Next taking this Court to a judgment of the Hon'ble apex Court in Civil Appeal No.7292 of 2009 decided on 6th March, 2019 and reading through paragraph no.10 therein Page 4 of 15 // 5 // Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner attempted to also take support of the judgment.
6. It is, in the above factual background with the claim of support of the provisions indicated hereinabove under different statute and further in the guise of support through the above judgment Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner claimed that impugned order dated 25.04.2022 remains bad and unless the same be interfered with and set aside, there will not only be serious prejudice to the Petitioner but there shall also be creation of a bad precedent.
7. In his opposition Miss Mahapatra, learned counsel for contesting Opposite Party i.e. the elected candidate taking this Court to the provision at Section 27 (3) clause (iv) reading together with the provision at Section 42 & 43 of the Act, 1964 contended that provision at Section 112 of the Representation of People Act, 1951 is not applicable to the case at hand. Miss Mahapatra, learned counsel for contesting Opposite Party further taking this Court to the decision of the Hon'ble apex Court in the case of Dr. P. Nalla Thampy Thera Vrs. B.L. Shanker and Ors. as reported in AIR 1984 SC 135 and reading through the same contended that this decision has direct application to the case at hand. It is at this stage of the matter taking this Court to the observation made in the impugned order Miss Mahapatra, learned counsel contended that there has been right dismissal of the application of the present Petitioner seeking transposition Page 5 of 15 // 6 // in the election dispute. Miss Mahapatra, learned counsel on the premises of availability of self-contained provisions in the Act, 1964 submitted that there is no scope for application of Section 112 of the Representation of People Act, 1951 to the case at hand. In the process Miss Mahapatra, learned counsel prayed for dismissal of the writ petition.
8. Learned counsel for other Opposite Parties took support of the submission of Miss Mahapatra, learned counsel.
9. Considering the rival contentions of the parties, keeping in view the above factual aspects and the provision of law, this Court finds, undisputed facts remains to be; the election dispute was brought by the defeated candidate Opposite Party No.1 against the Opposite Party No.2 herein and the Petitioner was appearing therein as Opposite Party No.2. Further undisputed fact remains; after filing of the written statement there has been attempt by the Election Petitioner for withdrawal of the Election Petition No.4 of 2022 and at the same time there involves an application for transposition under the provisions of Order 23 Rule 1-A of the CPC at the instance of the present Petitioner and the impugned order vide Annexure-5 permits for withdrawal of the election dispute by rejecting the application U/o.23 Rule 1-A of the CPC.
10. Keeping in view the provisions relied on by both the sides, this Court finds, parties have relied on the provisions at Section 27(3), 42 & 43 of the Act, 1964, Section 112 of the Representation of People Act, Page 6 of 15 // 7 // 1951 and Order 23 Rule 1-A of the C.P.C. This Court here also finds, there is relevancy of the provisions at Section 30, 31, 32 & 35 of the Act, 1964. In deciding the case at hand this Court, accordingly, takes down all the provisions, which is quoted herein below:-
"27. Manner of holding Elections-
[(3) In the absence of any provision in this Act or the rules made thereunder, the provisions of the Representation of the People Act, 1950 and the Representation of the People Act, 1951 shall mutatis mutandis apply for the purposes of election to Grama Panchayats in the following matters, namely :
(i) preparation, revision and updating of Electoral Rolls;
(ii) appointment of Electoral Registration Officers, Presiding Officers and Polling Officers;
(iii) qualifications and disqualifications for registration as Voter;
(iv) such other matters which have to be, or may be required to be, dealt with for the purposes of conducting free and fair election.]
30. Election Petitions :- No election of a person as a member of a Grama Panchayat or as a Sarpanch or Naib-Sarpanch held under this Act shall be called in question except by an election Petition presented in accordance with the provisions of this Chapter.
31. Presentation of Petitions :- (1) The Petition shall be presented on one or more of the grounds specified in Section 39 before the [Civil Judge (Junior Division)] having jurisdiction over the place at which the Office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs within fifteen days after the date on which the name of the person elected is published under Section 15 :
Provided that if the Office of the [Civil Judge (Junior Division)] is closed on the last day of the period of limitation as aforesaid the Petition may be presented on the next day on which such Office is open :
Provided further that if the Petitioner satisfies the [Civil Judge (Junior Division)] that sufficient cause existed for the failure to present the Petition within the period aforesaid [Civil Judge (Junior Division)] may in his discretion condone such failure.
(2) No Candidate who has been elected to be a member, Sarpanch or Naib-Sarpanch of a Grama Panchayat shall be debarred from holding Office as such member, Sarpanch or Naib-Sarpanch merely by reason of any election Petition having been filed against him unless his election has been declared void by the 1 [Civil Judge (Junior Division)].Page 7 of 15
// 8 //
32. Parties to the Petition :- (1) The Petition may be presented by any person who has filed his nomination.
(2) A person whose election is questioned and where the Petition is to the effect that any other Candidate is to be declared elected in place of such person, every unsuccessful Candidate who has Polled more Votes than such Candidate shall be made Opposite Party to the Petition.
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.
(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.
42. Withdrawal of Petition :- The Petitioner may, at any time, withdraw the election Petition filed by him.
43. Abatement of Petition :- A election Petition shall abate only on the death of the Petitioner.
Page 8 of 15
// 9 // THE REPRESENTATION OF THE PEOPLE ACT, 1951
112. Abatement of election petitions.--(1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.
(2) Where an election petition abates under sub-section (1), the High Court shall cause the fact to be published in such manner as it may deem fit.
(3) Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.] CIVIL PROCEDURE CODE Order 23 Rule 1A. WHEN TRANSPOSITION OF DEFENDANTS AS PLAINTIFFS MAY BE PERMITTED.
Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
11. From the submissions of the parties, this Court gathers; the moot question remains to be answered by this Court is; if there is room for transposition of an opposite party to the election dispute in case of withdrawal of the election dispute?
12. It is keeping the above question in mind, this Court first proceeds to discuss on the prospect in Section 30 of the Act, 1964, which clearly says, question of election of a member or Sarpanch of a Gram Panchayat or Sarpanch or Naib Sarpanch held under the Act, 1964 can be questioned only by way of election dispute. Undisputedly the Election Dispute herein was very much permissible. Similarly Section 31 of the Act, 1964 deals with presentation of Election Dispute under one or more grounds specified U/s.39 of the Act, 1964 before the particular Court within Page 9 of 15 // 10 // fifteen days after the date of publication of result. For the 2nd proviso there is scope for condonation of delay. Coming to Section 35 of the Act, 1964, this Court finds, this Section provides provision for trial, in the circumstance as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits. There is prescription of further restriction to the Civil Judge (Jr. Divn.) in the matter of recording of evidence, production of evidence, cost in the circumstance by way of security and in the matter of non- disclosure of casting of votes in favour of 'X' or 'Y'. Application of provisions of the Indian Evidence Act, 1872 shall be applicable in the trial of the Election Petition, subject to the provisions of the Odisha Grama Panchayats Act, 1964 and considering the admissibility of evidence and awarding of a reasonable expenses involving person attending to give evidence and cost in the circumstance therein. At this stage considering the applicability of provision at Order 23 Rule 1-A of the C.P.C. as claimed by the Petitioner, rejection of which is involved in the impugned order, this Court here finds, it is wrong to understand applicability of all provisions of C.P.C. to the Election dispute. For the restriction in the Section 35 of the Act, 1964 the provision in the C.P.C. for trial of suits are only applicable to the trial of the Election Disputes. Contingency in terms of Order 23 Rule 1-A has nothing to do with the trial of the suits. This Court here again taking into account the provision Page 10 of 15 // 11 // at Section 32 of the Act, 1964, finds, Section 32 though permits for bringing in Election Dispute by the Petitioner herein, unfortunately the Election Petition involved herein was not brought by the petitioner presently and undisputedly Petitioner presented the Election Dispute and sought for withdrawal of the Election Dispute. It is, at this stage of this matter, this Court also takes into account the provision at Section 42 & 43 of the Act, 1964. Section 42 deals with withdrawal of the petition whereas Section 43 deals with abatement of the petition. Section 43 when has no application to the case at hand. Section 42 clearly permits withdrawal of the Election Petition by the Petitioner. It is here coming to reliance of the provision at Section 112 of the Representation of People Act, 1951, this Court finds, this provision creates contingency for abatement of the Election Petition certainly on account of death of sole Petitioner and the Sub-section 2 & 3 are mechanism, which undisputedly is not the situation in the case at hand.
13. Under the circumstance there is no abatement of election petition. From the factual background involved herein, this Court finds, the Election Dispute has been simply withdrawn by the Petitioner himself. Therefore there is no contingency of abatement. For the opinion of this Court, there is even no remorse application of provision at Section 112 of the Representation of People Act, 1951 to the case at hand. This Court here reiterates that there is involvement of provision at Section 42 of the Page 11 of 15 // 12 // Act, 1964 in the Election Dispute involved herein and there is no contingency U/s.43 of the Act, 1964. Even assuming that there is contingency of provision at Section 43 of the Act, 1964, but for the clear provision already contained in the Act, 1964 there is no question of attracting the provision at Section 112 of the Representation of People Act, 1954 to the case at hand. This Court here finds strength in the submission of Miss Mahapatra, learned counsel that for self-contained provision in the Odisha Gram Panchayats Act, 1964, the provision in the Representation of People Act, 1951 shall not be attracted to the proceeding.
14. It is here taking into account the citations cited by Mr. Mukherji, learned Senior Advocate appearing on behalf of the Petitioner and going through all the decisions this Court finds, none of the decisions fits to the case at hand.
15. Similarly taking into consideration the decision cited at Bar but at the instance of Miss Mahapatra, learned Counsel, this Court finds, through the decision vide AIR 1984 (SC) 135 the Hon'ble apex Court in paragraph nos.4, 9, 16 & 21 therein has made the following observation:-
"4. On the same day respondent 19 to the election petition made an application praying for "recall of the order dated 9th Mar., 1981 with reference to Election Petition No. 76 of 1978, and this respondent No. 19 may please be permitted to prosecute this election petition, and to submit his evidence, and this respondent may please be permitted to be substituted and to continue the proceedings of this election petition". Respondent 19 amended this application and asked for restoration of the election petition. The original respondent Page 12 of 15 // 13 // 1 filed objection to the request for restoration contending that the application for restoration was not maintainable and that respondent 19 had no locus standi to ask for restoration of the case. There was no provision for transposition when an election petition was dismissed and, therefore, respondent 19 who could have filed an independent election petition within the time admissible under the Act could not ask for transposition. On June 23, 1981, the High Court rejected the application after, negativing the stand of respondent 19 that an election petition could not be dismissed for default and that a case of abandonment should be treated at par with abatement and withdrawal of the election petition. On September 14, 1981, a petition for special leave was filed and upon leave being granted, this appeal by respondent 19 has come before us for final hearing.
9. The legal position is, therefore, well settled that election disputes are strictly statutory proceedings.
16. There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default. The appellant contended that default of appearance or non- prosecution of the election petition must be treated as on par with withdrawal or abatement and, therefore, though there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in Ss. 110 or 116 of the Act should be made applicable. We see no justification to accept such a contention. Non-prosecution or abandonment is certainly not withdrawal. Withdrawal is a positive and voluntary act while non- prosecution or abandonment may not necessarily be an act of volition it may spring from negligence, indifference, inaction or even in capacity or inability to prosecute. In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure. In the case of non-prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders. We have already indicated that the Act is a self-contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy. In fact, the terms of Section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
21. This Court in Dhoom Singh v. Prakash Chandra Sethi, (1975) 3 SCR 595 at P. 599: (AIR 1975 SC 1012 at pp. 1015-16), held "The Legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement it has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election Petitioner or otherwise. It is not necessary for this Court to express any opinion Page 13 of 15 // 14 // as to whether, the omission to do so is deliberate or inadvertent. It may be a case of casus omissus. It is a well known rule of construction of statutes that "A statute, even more than a contract, must be construed, ut res magis valeat quam preheat, so that the intentions of the legislature may not be treated as vain or left to operate in the air". A second consequence of this rules that " a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" (see Craies on Statute Law).It seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of Section 81 or Sec. 82 or Sec. 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fradulently misled to act under S. 86 (1). Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose."
16. Reading through the above, this Court finds, this decision has application to the case at hand and also to strengthen the view of the Civil Judge (Jr. Divn.), Jajpur in the impugned order at Annexure-5.
17. Keeping the above in view and after going through the reasoning of the trial court in the impugned order herein, this Court finds, the Civil Judge (Jr. Divn.), Jajpur in deciding the matter herein has gone through the provisions meticulously and expressed his opinion rightly in turning down the application U/o.23 Rule 1(A) of the C.P.C. The impugned order dated 25.04.2022 at Annexure-5 thus requires no interference. Page 14 of 15
// 15 //
18. Writ petition stands dismissed. There is, however, no order as to costs.
(Biswanath Rath) Judge Orissa High Court, Cuttack.
The 7th day of February, 2023// Ayaskanta Jena, Senior Stenographer Page 15 of 15