Patna High Court
Case Details
Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.304 of 2012 In Civil Writ Jurisdiction Case No. 17461 of 2011 ====================================================== Sushila Devi Versus .... .... Petitioner/s The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Yogendra Mishra, Advocate Mr. Binod Kumar, Advocate For the Commission : Mr. Amit Shrivastava, Advocate Mr. Girish Pandey, Advocate For Respondent no.8 : Mr. S.B.K.Manglam, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 11 31-07-2013 The instant application has been filed by writ petitioner for reviewing the order dated 20.6.2012 passed by this Court in C.W.J.C. No.17461 of 2011. The review has been filed on the grounds that some of the issues raised in course of hearing were not considered which prejudices the petitioner in arguing those points in Appeal. 2. Notice was issued to Sulekha Devi, Respondent No.8 who appeared and contested the case of petitioner. She also questioned the maintainability of the review application. 3. Before I take up the issue of maintainability, it would be necessary to indicate the facts of the case in brief. “(i) The petitioner claiming herself to be Sinduriya Bania by caste under E.B.C. category applied for Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 2 issuance of a caste certificate for filing nomination for contesting the post of Mukhia of Pakri Gram Panchayat. The out going Mukhia, namely Sulekha Devi, respondent no.8, endorsed her claim. The Circle Officer, Motipur, district Muzaffarpur, on the basis of reports of Halka Karamchari and Circle Inspector issued her caste certificate certifying that she belongs to Sinduriya Bania caste, which falls under EBC category. The certificate is annexed as Annexure-2 to this application. (ii) The election took place on 30.04.2011 and the result was pronounced on 24.05.2011 declaring the petitioner as duly elected. The petitioner took oath as Mukhia on 24.06.2011 and started functioning. In course of verification of relief works, the petitioner noticed large scale bungling made by the erstwhile Mukhia Sulekha Devi (respondent no.6) and others. (iii) It is the case of the petitioner that Sulekha Devi apprehending stern actions, filed a complaint before the State Election Commissioner (respondent no.3) alleging that Sushila Devi (petitioner) did not belong to Sinduriya Bania caste and thus was not qualified to contest election against seat reserved for EBC category. Sulekha Devi stated in her complaint that Khatian entry described her husband as Karya Bania, which does not come under E.B.C. category. (iv) The State Election Commissioner thus vide letter dated 28.06.2011 directed the District Magistrate-cum- District Returning Officer, Muzaffarpur to hold an enquiry whether petitioner belonged to Sinduriya Bania
Legal Reasoning
Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 3 caste or not. A notice was also issued to the petitioner to appear before him on 04.08.2011 for hearing. (v) On receipt of notice, the petitioner filed petition raising preliminary objections to the maintainability of the case before State Election Commission and also defended her caste certificate. In the meantime, respondent no.5, the Circle Officer, Motipur issued notice to her to appear and participate in enquiry with respect to correctness of caste certificate issued in her favour. (vi) The petitioner appeared and filed show-cause before respondent no.5 asserting that caste certificate is correct, as she belonged to Sinduriya Bania caste. (vii) As no enquiry report was submitted by the District Magistrate, Muzaffarpur, the respondent no.3 adjourned the case to 30.08.2011. The petitioner raised the issue of jurisdiction of Commission to decide the issue of disqualification arising prior to election and power to direct respondent no.4 to make an enquiry whether petitioner belonged to Sinduriya Bania caste or not. The petitioner‟s stand was that there cannot be a part enquiry by the Election Commission and part enquiry by the District Magistrate. On 01.09.2011, the District Magistrate issued notice to the petitioner to appear before him on 03.09.2011 and to file reply in respect of her claim of belong to Sinduriya Bania caste. The petitioner appeared on 03.09.2011 before respondent no.4 and prayed for time to file effective reply. (viii) The respondent no.4, the District Magistrate, Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 4 adjourned the matter by two days to 05.09.2011, on which date the petitioner filed her detailed reply. Since respondent no.4 was not available in his office, the District Panchayat Raj Officer, Muzaffarpur, on enquiry stated that the future date would be duly communicated either by office or by letter. On 19.09.2011, the petitioner heard rumour that the District Magistrate- cum-District Returning Officer, Muzaffarpur on 17.9.2011 has held that she does not belong to Sinduriya Bania Caste. A copy of order dated 17.09.2011 has been annexed as Annexure-8. 4. In the writ petition, the petitioner Sushila Devi sought quashing of the entire proceeding before the State Election Commission and also for a direction to the respondents restraining them from taking any steps pursuant to letter dated 28.6.2011 (Annexure-4), letter dated 30.8.2011 (Annexure-6) and order dated 17.9.2011 (Annexure-8) passed by the District Returning Officer cum District Magistrate, Muzaffarpur. 5. Letter dated 28.6.2011(Annexure-4) is a notice issued by the Commission to the petitioner to appear and respond to complaint of Sulekha Devi (Respondent No.8) that former got elected against seat reserved for EBC category claiming herself to be Sinduriya Baniya. Letter dated 30.8.2011(Annexure-6) is a direction to the District Magistrate cum District Returning Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 5 officer, Panchayat, Muzaffarpur to make an enquiry whether the petitioner belongs to Sinduriya Bania caste under E.B.C. category. Annexure-8 is an order dated 17.9.2011 passed by the District Returning officer cum District Magistrate, Panchayat, Muzaffarpur wherein he stated that Survey Khatiyan record would show that caste of Ram Pratap Das, an ancestor of petitioner‟s husband was recorded as Kartha Baniya, whereas ancestors of the petitioner Sushila Devi were recorded as Kayasth Baniya. The Collector thus observed that the petitioner has illegally been issued caste certificate of belonging to Sinduriya Baniya caste. The District Returning officer (Panchayat) cum District Magistrate, Muzaffarpur, directed for cancelling the caste certificate of the petitioner. 6. The petitioner sought quashing of the proceedings on the ground that the State Election Commissioner has no jurisdiction to entertain dispute with respect to qualification or disqualification of a candidate occurring prior to the election and whether the entire exercise of power by respondent no.3 is arbitrary and violative of a Division Bench decision of this Court reported in 2004(4) PLJR 482 and 2007(1) PLJR 616. The petitioner submitted that she possessed voluminous documents including C.S. Record of 1908 to show that she Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 6 belonged to Sinduriya Bania caste which was not looked into by the District Magistrate, Muzaffarpur while making his report. 7. The other contention of the petitioner in the writ court was that the State Election Commissioner being an „authority‟ under section 136(2) of the Bihar Panchayat Raj Act,2006 (hereinafter referred to as „the Act‟) to decide dispute relating to disqualification, cannot delegate part of the enquiry part to others i.e. District Panchayat Officer cum District Magistrate or Circle Officer and then to decide the matter on basis of such reports. 8. The Court after hearing the parties disposed of the matter and held as follows: “19. I thus hold that while considering a complaint under section 136(2) of the Act, the State Election Commissioner in appropriate cases can seek report from authorities who otherwise are also competent to decide such issues, for facilitating collection of relevant facts and datas. I further hold that State Election Commissioner is competent under section 136(2) to decide issues of disqualification occurring prior to the election under Bihar Panchayat Raj Act, 2006”. 9. In the review application, the petitioner‟s case is that the Election Tribunal headed by a Munsif is more equipped to Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 7 handle contentious issues in view of the Rules 109 and 111 of Bihar Gram Panchayat Election Rules, 2006 (hereinafter referred to as “the Rules‟) whereas no procedural Rules have been prescribed for hearing and disposal of complaint by the Election Commission save and except Rule 117. Thus, the provisions of Rules 109 and 111 which confer power on the Election Tribunal with authority to apply C.P.C. and admit evidence in accordance with the Evidence Act are not available to the State Election Commissioner. 10. The petitioner has filed review application on the ground that these aspects and rules have not been considered by this Court. 11. However as issue of maintainability of review petition has been raised by the respondent no.8, I would deal with this aspect first before touching the merit of the case.
Legal Reasoning
12. Mr. Manglam, learned counsel appearing on behalf of Respondent no.8 submits that a review petition is barred under section 114(a) of C.P.C. and Order 47 Rule 1(a) as petitioner has also filed an appeal. He submits that a review can only be filed by an aggrieved person against a decree or order from which an appeal is allowed by the Code but no appeal has been preferred which is not the situation in the instant case. He next Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 8 submits that there is no error apparent on the face of the record and as such the review application is not maintainable and fit to be rejected. He further submits that if any point has not been considered by the learned Single Judge, the Division Bench in L.P.A. if it finds it relevant, can remand the matter for its consideration. 13. On the other hand, Mr. Yogendra Mishra, learned counsel for the petitioner submits that a review petition is maintainable under Article 226 of the Constitution of India in terms of decision in the case of Northern India Caterers (India) Pvt. Ltd. Vs Lt. Governor of Delhi, reported in A.I.R. 1963 SC 1909. However the terms of Code of Civil Procedure are not applicable to hearing of writ application under Article 226 of the Constitution, as such provisions of section 114(a) or Order 47 Rule 1(a) of C.P.C. would not apply as claimed by the other side. 14. I would agree with the submissions of Mr. Mishra that terms of C.P.C. ipso facto would not be applicable to writ jurisdiction, nonetheless the High Court may draw upon the principle enunciated in Code of Civil Procedure which in essence based on equity, justice and good conscience. A Division bench of this Court in the case of Kishori Singh Vs State of Bihar, Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 9 reported in 1985 PLJR 605 observed in paragraph 5 as follows: “……… However, it is well settled that under Article 226 the High Court may draw upon the principles enunciated in the Civil Procedure Code which in essence are based on equity, justice and good conscience……..” 15. Thus, I hold that principles emerging from the provisions of Code of Civil Procedure based on equity, justice and good conscience would be applicable to writ application under Article 226 of the Constitution in an appropriate case. 16. Mr. Mishra, learned counsel appearing for the petitioner next submits that in any view of the matter section 114(a) and Order 47 Rule 1(a) of Code of Civil Procedure would not create a bar on filing a review petition if an appeal has been preferred not under the Code of Civil Procedure. He submits that the appeal in this case has been filed under Letters Patent of Patna High Court Rules and as such bar under section 114(a) of C.P.C. would not operate. He submits that bar on filing of review petition against some order and judgment would apply if an appeal has been filed under the Code. Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 10 17. I am unable to accept the submissions of Mr. Mishra that bar of filing of review under order 47 Rule 1(a) and Section 114(a) of C.P.C. would be applicable only if an appeal is filed under the provisions of Code and not otherwise. As the issue centres round intent and scope of order 47 Rule 1(a) and Section 114(a) of C.P.C., the provisions are quoted hereinbelow: “ Order XLVII. 1. Application for review of judgment- (1) Any person considering himself aggrieved,- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) xx xx xx xx (2) xx xx xx xx Section 114. Review- Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the court may Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 11 make such order thereon as it thinks fit”. 18. It would appear from the Order 47 Rule 1(a) C.P.C. that a review of judgment and order can be filed by a person being aggrieved by if he has not preferred an appeal against it. Though section 114(a) refers to an appeal under the Code, Order 47 Rule 1(a) talks of appeal in general. Order 47 Rule 1(a) states that an aggrieved person can file a review against the decree and order from which an appeal is allowed but no appeal has been preferred. If I accept the contention of Mr. Mishra that review petition can be duly filed if an appeal is filed other than the Code, it would lead to an anomalous situation. If such situation is accepted, a review petition would not be maintainable if an appeal is preferred under the Code, whereas same would be maintainable if it is filed under provisions other than the Code, which would amount to adopting two different standards in a given situation and would be in teeth of equality clause enshrined in Article 14 of the Constitution of India. Thus, it would be in the interest of administration of justice that the appeal mentioned in section 114(a) and Order 47 Rule 1(a) would also extend to and include an appeal preferred under Letters Patent of Patna High Court Rules against an order passed in writ jurisdiction under Article 226 of the Constitution. Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 12 19. However, the contention of Mr. Mishra that review application would be maintainable in the facts of instant case succeeds for different reasons. 20. It would appear from section 114(a) and Order 47 Rule 1(a) C.P.C. that a review application would be maintainable if an appeal has not been preferred. The converse would be equally true that a review petition would be barred if an appeal has also been filed. The question would remain as to what would be the position if an appeal is filed subsequent to filing of a review petition. The answer of this issue is no more res integra. The review petition filed prior to filing of an appeal would be maintainable if before the application for review is finally
Decision
decided, the appeal itself has not been disposed of. 21. Elucidating the aforesaid principles, the Hon‟ble Apex Court in the case of M/s Thungabhadra Industries Ltd. Vs The Government of Andhra Pradesh, reported in AIR 1964 Supreme Court 1372 observed as follows. The relevant extract of para 8 is quoted hereinbelow: “8. ……………..The crucial date for determining whether or not the terms of O.XLVII R.1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 13 review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end”. 22. I find that the writ application was disposed of on 20.6.2012 and review application was filed on 4.7.2012. There is no reference of appeal being filed prior to filing of review petition nor the said situation has been controverted by other side. Further more, it is an admitted position that the appeal is still pending and has not been disposed of. In back drop of facts of the case and principles enshrined in Order 47 Rule 1(a) and judgment of Hon‟ble Apex Court quoted above, I hold that review application would be maintainable. 23. Once I have held that review application would be maintainable, I take up the review petition for consideration on merit. To appreciate the contention it would be necessary to examine the relevant provisions. Rule 106(1) states than an election petition against any elected candidate can be filed under section 137 within 30 days of declaration of election result. Rule 106(2) is about joinder of parties as respondents. Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 14 Rule 107 deals with court fee payable on the election petition. Rule 108 talks of verification of statements in election petition. Rule 109 states that the competent court shall hear the election petition in the manner prescribed by the Civil Procedure Code. Rule 110 talks of withdrawal of the election petition. Rule 111 mandates that in hearing of an election petition, the provisions of Indian Evidence act, 1872 shall apply. Rule 112 confers power to declare that election of elected candidate as void, if the prescribed authority decides that the elected person is guilty of misconduct. Rule 113 states that copy of order on election petition be made available. Rule 117 states that State Election Commission shall be competent to decide any question of disqualification mentioned in sub-section (1) of section 136 of the Act, 2006 giving reasonable opportunity of hearing to the parties concerned. 24. The petitioner submits that a State Election Commission as per rule 117 has to decide the matter after giving an opportunity of hearing to the parties. The Election Commission unlike Election Tribunal cannot adopt procedure as prescribed in C.P.C. under Rule 109 or take evidence as provided under rule 111 of Evidence Act. In other words, State Election Commissioner cannot admit evidence as per Indian Evidence Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 15 Act nor can it conduct a proceeding as per the Civil Procedure Code like Election Tribunal. On the other hand, the Election Commissioner is to decide complaint in respect of disqualification only by giving an opportunity of hearing. According to him the issues of facts which are in serious dispute cannot be decided only by providing an opportunity of hearing. Learned counsel submits that as no similar provisions like Rule 109 and 111 of Rules 2006 is provided to Election Commissioner, it is not competent to decide facts involving serious disputes. The petitioner submits that non-consideration of Rule 109 and Rule 111 which has been made available to Election Tribunal would disadvantage the petitioner in raising these issues in appeal. The petitioner in support of his submission has placed reliance upon a Constitution Bench decision of the Hon‟ble Apex Court in the case of Bashiruddin Ashraf Vs The Bihar Subai Sunni Majlis-Awaqf & anr, reported in A.I.R. 1965 SC 1206. 25. The petitioner states that she contended before the Enquiry Officer that she was in possession of large number of documents which would show that she belonged to Sinduriya Bania caste. She further states that the respondents overlooked the cadastral survey record that showed that ancestors of the Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 16 petitioner were recorded as Sinduriya Baniya. The revisional survey record erroneously recorded the petitioner as Karya Baniya when in fact there is no caste such as Karya or Kartha Baniya. She submits that there is presumption of correctness of survey entry in section 103B (3) of the Bihar Tenancy Act duly affirmed and approved in the case of Ramgobind Singh & Ors Vs Ramranbijai Singh & Ors, reported in A.I.R. 1958 Patna 279. The aforesaid presumption can be buttressed only by evidence and unfortunately the Collector recorded his finding on the basis of entry in R.S. record without considering the Cadestral Survey entry of 1908 and other documents. 26. Mr. Manglam, learned counsel for respondent no.8 submits that Commission can seek report of appropriate authority while deciding a dispute. The Division Bench of this Court has upheld the authority of Commission to seek report from appropriate authority. He further submits that the Commission or appropriate authority is not precluded from taking resort to provisions of Evidence Act or C.P.C. 27. Rule 106 to Rule 116 prescribes procedure for filing of Election Petition and its hearing by the Election Tribunal or Prescribe Authority. Election can be challenged in Election Petition on any of the grounds mentioned in Rule 139 and 141 Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 17 of the Act. There is a basic reason for specifically making Code of Civil Procedure and Evidence Act applicable to hearing of election petition under Rules 109 and 111 of Rules, 2006 as Election Tribunal has to pronounce judgment on wide range of issues like misconduct, corrupt practices adopted by returned candidates or his agents and rejection of nomination papers etc. On the other hand, State Election Commission is empowered only with power to disqualify a member for election, for posts of Mukhiya or Member of Gram Panchayat, Panchayat Samiti and Zila Parishad as mentioned in section 136(1). The State Election Commission is usually seized with complaints under section 136(2) of the Act vis-a-viz disqualification of member either applying for election or have been returned in election held under the Act. The Election Commission is empowered to direct enquiry and for ascertaining the correct situation from competent authority. On the basis of such reports/ enquiry the Election Commission after providing a due hearing can decides the complaint. 28. Thus, it is evident that because of nature and magnitude of dispute that an Election Tribunal has to decide, the procedures prescribed in Code of Civil Procedure and provisions of admitting evidence as per Evidence Act have Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 18 been specifically made applicable under Rules 109 and 111 of Rules, 2006. The absence of such provision in its application to State Election Commission under section 136(2) would not demean its authority or affects its power or render it incompetent to decide issue of qualification/disqualifications of a member either contesting election or returned under the Act, 2006, otherwise the provision would become redundant and superfluous. 29. I have already held that the State Election Commission can direct enquiry or in respect of facts concerning disqualification from appropriate authority, where the parties too are at liberty to produce their evidence, witness or materials in support of their claim. The exercise of power by State Election Commission in directing an enquiry has already been approved in a number of case by the Division Bench of this Court to which I have already referred in writ order as well as in case of Geeta Gupta Vs State of Bihar & Ors, reported in 2012(2) PLJR 285. However, some of the grounds of challenge as mentioned in section 139 (1)(a) and Section 136(1) of the Act is overlapping so far as jurisdiction of Election Tribunal and Election Commission is concerned. It would be for the complainant to chose an option of either filing an election Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 19 petition or filing a complaint before the State Election Commissioner. 30. Further more, the petitioner had not moved this Court against the final order of the State Election Commission. The petitioner could have challenged the findings recorded by the District Returning Officer cum District Magistrate before the State Election Commissioner that relevant documents have not been considered or sufficient opportunity was not provided to her to produce the same in evidence before Enquiry Officer. Only when all such materials come before the State Election Commissioner, the petitioner could have made her submissions that dispute involved serious and complicated question of facts and as such the matter ought to be decided by Election Tribunal. Then either party being aggrieved could have challenged the decision in this Court which then would be in a better position to decide the issue. The petitioner without such decision of the State Election Commissioner had moved this Court in writ jurisdiction challenging its authority to decide the dispute of disqualification arising prior to election which the court has already considered and rejected the same in the writ order. 31. It is well settled that a party is not entitled to seek Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 20 review of a judgment merely for the purpose of a re-hearing and a fresh decision in the case. Normally, the principle is that a judgment pronounced is final and departure from that principle is justified only when circumstances of substantial and compelling character make it necessary to do so as observed in the case of Northern India Caterers (India) Ltd. Vs Lt. Governor of Delhi, reported in A.I.R.1980 Supreme Court 650. 32. Further more, it is not necessary that judgment should record and repel each individual argument, though may not very relevant for deciding the issue. In case if a contrary view is adopted, it would open the door to endless litigation and this would be destructive of the finality which must attach to the decision on matters of fact, as observed in the case of Bashiruddin Ashraf Vs The Biahr Subai Sunni Majlis-Awaqf & anr, reported in A.I.R. 1965 Supreme Court 1206. In such circumstances, the matter can be best left to be agitated in appeal and not under review unless there is error apparent on record or party even after excise of due diligence could not get hold of or relevant materials or for any other just grounds to prevent grave miscarriage of justice. 33. Thus, even if the issues under consideration were raised Patna High Court C. REV. No.304 of 2012 (11) dt.31-07-2013 21 and not considered, it in no way would affect the authority of State Election Commission under section 136(2) of the Act, 2006 to decide dispute of disqualification under section 136(1) of the Act, 2006. This review application is thus dismissed. Md.Jamaluddin Khan A.F.R. (Samarendra Pratap Singh, J)