Misc. Case No. 11 of 2022 · Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) No.7270 of 2023 An application under Article 226 & 227 of the Constitution of India Sri Bishnupada Patra : Petitioner -Versus- Rabindra Nath Giri & Anr. : Opposite Parties For Petitioner : M/s. B. Baug, M.R. Baug, G.R. Sahoo For Opposite Party No.1 : Mr. A. Nandy For Opposite Party No.2 : Mr. S. Mishra, ASC J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of hearing : 11.05.2023 :: Date of judgment::17.05.2023 1. This Writ Petition at the instance of the return candidate involves a challenge to the order dated 01.12.2022 vide Annexure-5 passed by the learned Civil Judge (Jr. Divn.), Jaleswar in Election Misc. Case No.11 of 2022 thereby rejecting the application for amendment of the objection but at the instance of the return candidate. 2.
Legal Reasoning
Short background involved in this case is that the present Petitioner-the return candidate and Opposite Party No.1 herein-the defeated candidate were contestants for the post of Sarapanch of Baiganabadia Gram Panchayat in the three tier election held on Page 1 of 8 // 2 // 16.02.2022. It is averred that Petitioner was declared as the return candidate through declaration dated 28.02.2022 and as such continuing as the elected Sarapanch of Baiganabadia Gram Panchayat. It is claimed that while the matter stood thus Opposite Party No.1 being unsuccessful in such Election filed the Election Petition U/s.30 read with Section 39 of Odisha Gram Panchayat Act on the file of the learned Civil Judge (Jr. Divn.), Jaleswar being registered as the Election Misc. Case No.11 of 2022. During pendency of the said Election Misc. Case and after filing of objection to the Election Misc. Case the Petitioner being the return candidate coming to know that there has been inadvertent mistakes in his objection, brought an application for amendment of the objection thereby seeking replacement in several places. The defeated candidate-the election Petitioner filed objection and contested the matter and finally by order dated 1.12.2022 the application for amendment was rejected by the Election Tribunal impugned herein. 3. Petitioner herein has enclosed copy of the amendment application, objection as well as the order dated 1.12.2022 vide Annexures-3, 4 & 5 respectively.
Legal Reasoning
4. Mr. Baug, learned counsel for Petitioners challenging the impugned order claimed that the trial court passed the impugned order without application of judicial mind and also losing its sight to the facts and circumstances of the case. Mr. Baug, leaned counsel for Petitioners also contested the impugned order on the ground of perversity. It is on the premises of amendment being formal in nature Mr. Baug, learned counsel for Petitioner alleged that the Election Tribunal remained casual in considering such application. Giving reference to the documents taken support by the return candidate in the amendment application Mr. Baug, learned counsel for Petitioner alleged that Petitioner9s application for Page 2 of 8 // 3 // amendment gets serious foundation through the documents appended therein. It is, in the process Mr. Baug, learned counsel for Petitioner attempted to take this Court to the documents herein vide Annexures-6, 7, 8 & 9 and also attempted to satisfy this Court that there in fact requires an amendment to the objection of the return candidate and failure of which, case of the Petitioner is seriously affected. 5. It is, in the above background of the matter Mr. Baug, learned counsel for Petitioner attempted to oppose the impugned order and requested for setting aside of the same. 6. Mr. Nandy, learned counsel for Opposite Party No.1, however, reading through the particular paragraphs in the objection filed by the return candidate in the trial process, further also reading together with the proposed amendment vide amendment application at the instance of the return candidate attempted to submit that the return candidate has clear intention of taking away the admissions. Further taking this Court to the manner of conduct of the return candidate in the trial process and also taking this Court to the previous round of litigation in this Court through W.P.(C) No.3408 of 2023 disposed of on 7.02.2023 Mr. Nandy, learned counsel for Opposite Party No.1 contended that the impugned order though was passed on 1.12.2022, however, Petitioner-the return candidate remained silent and even did not bring to the notice of the Court about pendency of such application even in the final hearing of W.P.(C) No.3408 of 2023 and it is, accordingly, the return candidate is in clear attempt of prolonging the Election Dispute somehow or other and not only that there is also deliberate withholding of the above position and deliberately kept such issue alive to get into the second round of litigation in this Court. Taking this Court to the findings of the Election Tribunal and the development in the Election Dispute that in the meantime the Page 3 of 8 // 4 // complainant9s witnesses as well as the return candidate have all been examined, Mr. Nandy, learned counsel for Opposite Party No.1 contended that the attempt of the return candidate herein clearly aims to drag the Election Dispute and nothing else. It is, in the above circumstance, Mr. Nandy, learned counsel for Opposite Party No.1
Decision
claimed for dismissal of the Writ Petition. 7. Considering the submissions and contentions of the respective parties, this Court finds, this Writ Petition is in the second round of litigation. In the first round of litigation the return candidate being kept away of the Election Dispute so far bringing in its evidence on rejection of an application for adjournment preferred W.P.(C) No.3408 of 2023. This application came to be disposed of vide order of this Court dated 7.02.2023, but allowing the Petitioner herein to effectively participate in the Election Dispute while also imposing heavy cost on the Petitioner to ensure that there is no repeating of such situation and further also targeting the Election Dispute. It is unfortunate to note here that even in the meantime there has been rejection of the amendment application on 1.12.2022, the return candidate deliberately kept the rejection of amendment aspect away from this Court and on the other hand took an order targeting the Election Dispute. This Court, therefore, observes, the return candidate clearly suppressed the vital aspect from this Court and it is made clear that in the event the impugned order taking place was brought to the notice, there would have been effective adjudication of the issue vide W.P.(C) No.3408 of 2023. Further from the discussions in W.P.(C) No.3408 of 2023 this Court finds, there has been clear recording that there has been more than a dozen of adjournments attempt only at the instance of the return candidate the Petitioner herein and this Petitioner was busy in delaying the trial of the Election Dispute. Considering this Page 4 of 8 // 5 // aspect alone in disposal of the W.P.(C) No.3408 of 2023 this Court had imposed an exemplary cost of Rs.10,000/- on the return candidate only to check dilatory tactics in the trial. 8. Keeping in view the pending application in the trial court involving the present case, this Court finds, development therein already taken place by the time of disposal of Writ Petition indicated hereinabove satisfies the allegation of the defeated candidate that there has been constant attempt by the return candidate to hold on the election dispute, which clearly demonstrates the conduct of the Petitioner herein. 9. Coming back to the amendment aspect, this Court finds, the core issue involved herein appears to be, prior to filing of the amendment application the return candidate in paragraph nos.7 & 8 of the objection to the Election Dispute had the following objection:- <7. That, the facts mentioned in paragraph no. 6 of the petition are unnecessary repetitions. This OP has never adopted any corrupt practice and that his name was not included in the voter list of Baiganbadia GP, rather it was there all along and that he has also not included his name in the voter list of Madhupura GP and that the same impliedly leads to corrupt practice and that this OP influenced the OP No. 1 to accept his nomination as Sarpanch, Baiganbadia GP and that the nomination of this OP No. 2 was improperly accepted by the OP No. 1 despite lawful objection made by the petitioner and that the same materially affected the result of the petition are false and concocted for the purpose of filing of this case. 8. That, the OP No. 2 is a permanent resident of village Khagadapal under Madhupura GP and is name appears in the voter list along with his other family members pertaining to house no. 7 of village Khagadapal. Being a valid voter of village Baiganbadia under baiganbadia GP, the OP No. 2 filed nomination to contest the election as Sarpanch of the said GP. On the date of scrutiny, the petitioner was grumbling that this OP No. 2 was having house under Madhupura GP and the entry of his name as voter under Baiganbadia GP was illegal and he had no right to contest as Sarpanch of the said GP. Since the contentions of the petitioner was not lawful, the OP No. 1 rightly rejected his claim and accepted the nomination of this OP No.2. In the election, the OP No. 2 got majority of votes and he owned the election by good margin of votes.= Page 5 of 8 // 6 // 10. Parties have participated in evidence in the above background of factual aspect. It be recorded herein that it is only after examination of the witness from the defeated candidate gets over and even the evidence of Opposite Party No.2 therein clearly disclosing Opposite Party No.2 to be a resident of Khagadapal as clearly borne through the objection as well as pleadings also, there is attempt of filing of the amendment application. It is here coming back to take note of the amendment application, this Court finds, the proposed amendment therein reads as follows:- 1. PROPOSED AMENDMENT In the written objection of OP No.2 in past Para-8 in the 1st line after the word 8village and before the word 8under9 the word <Khagadapal= may be deleted and in its place 8Kalikapur9 may be written Similarly in the 2nd line of the same para-2 after the word <under= and before the word 8end9 the word <Madhupura GP9 may deleted and in its place <Baiganbadia GP= may be inserted. Similarly in page 4 in the 1st line the word <Khagadapal= may be deleted and in its place the word <Kalikapur= may be written.= 11. Even though the amendment application did not contain any additional document as nothing such disclosures in the application, however, filing the writ petition here the return candidate attempted to take support of number of documents in consolidating its attempt for amendment. For there is no such document available and/or accompanied with the amendment application, this Court finds, none of these documents can be taken into account at this stage. Further even assuming that the documents have support seeking of amendment, but for these documents remaining outside consideration of the Election Dispute, the new documents had no place to be considered at all. Further looking to the proposed amendment, this Court finds, the attempt therein appears to be clearly taking away the clear admissions through paragraph nos.7 & 8 taken note hereinabove, which is not permissible in the eye of law. Page 6 of 8 // 7 // 12. It is here looking to the observation and findings of the trial court in considering the amendment application, this Court finds, the trial court has clearly recorded closure of P.W.1. This Court finds, the return candidate has established through Annexure-A/12 as available at page 83 of the brief clearly disclosing the chief and cross examination of the return candidate is already taken place in the Election dispute. This Court through the impugned order also finds, the Election Dispute is already in argument process. It is, in the whole background of the matter indicated hereinabove, this Court observes, the trial court gave a reasonable consideration to the application involved and rightly rejected the amendment application impugned herein. It is necessary to observe here that the impugned order dated 1.12.2022 involved consideration of multiple applications and the order impugned herein dated 1.12.2022 only involves rejection of application for amendment and there is no challenge to the other part of the order dated 1.12.2022 herein by either of the parties as of now. For there is already sufficient delay in closure of the trial, this Court while recording the submissions of the respective parties that there has been no challenge to the other part of the order dated 1.12.2022, also declines to interfere in the order dated 1.12.2022 in the rejection of the amendment petition and confirms the same by taking out the interim order dated 13.03.2023 herein. While affirming the impugned order, this Court directs the Election Tribunal to conclude the proceeding at least within a period of two months from the date of communication of a copy of this judgment. 13. Both the parties are restrained from taking further adjournments in the Election Misc. Case No.11 of 2022. Page 7 of 8 // 8 // 14. Writ Petition stands dismissed. There is, however, no order as to costs. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 17th day of May, 2023// Ayaskanta Jena, Senior Stenographer Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 17-May-2023 13:44:07 Page 8 of 8