The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 393 of 2024 Priyanka Singh …. Appellant Mr. Bhabani Sankar Das, Advocate -versus- Jamunamani Singh and others Respondents Mr. L. Samantray, Additional Government Advocate for State …. CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN Order No.
Decision
ORDER 10.04.2024 02. This matter is taken up through Hybrid mode. 2. In the present intra-Court appeal, the appellant has put to challenge an order dated 15.02.2024 passed by a learned Single Judge of this Court in W.P.(C) No.34399 of 2023, whereby the writ petition filed on behalf of respondent no.1 came to be allowed. The said writ petition arose out of an order dated 29.09.2023 passed by a learned Civil Judge (Jr. Divn.), Rairangpur in Election Misc. Case No.2 of 2022, filed under Section 30 of the Odisha Gram Panchayats Act, 1964 read with Section 39 and Section 11(b) thereof by the present appellant who was contestant for “Sarpanch” of Bhalubasa Grama Panchayat in the district of Mayurbhanj. 3. It is not in dispute that after the parties were examined and cross-examined in the said election case and when the case was at the stage of argument, the appellant/election petitioner filed a petition before the Election Tribunal for further cross-examination of the respondent no.1 (the elected candidate) on recall, so as to test her ability about reading and writing Odia. Page 1 of 5 4. It is noteworthy that in the election petition, one of the grounds taken to challenge the election of the returned candidate was that she was unable to read and write Odia and, therefore, disqualified in terms of Section 11(b) of the Odisha Gram Panchayat Act, 1964. Section 11 of the Act lays down disqualification for a person to be elected as Sarpanch, clause (b) of which reads as under:- “(b) As a Sarpanch or Naib-Sarpanch, if he has not attained the age of twenty-one years or is unable to read and write Oriya.” 5. The learned Civil Judge (Jr. Divn.)/ Election Tribunal allowed the said petition filed by the appellant/election petitioner by an order dated 29.09.2023 which became subject matter of challenge before this Court in W.P.(C) No.34399 of 2023, as has been noted above. 6. It is noted that the scope of clause (b) of Section 11 of the Act was under consideration before a Single Bench of this Court in case of Usha Sahoo v. Ambika Sahoo; 111 (2011) CLT 852. The learned Single Judge, after taking into consideration the facts and circumstances and this Court’s decision in case of Usha Sahoo v. Ambika Sahoo, set aside the said order dated 29.09.2023 passed by the learned Civil Judge (Jr. Divn.)/ Election Tribunal. 7. Assailing the impugned order passed by the learned Single Judge, learned counsel appearing on behalf of the appellant has submitted that the decision in case of Usha Sahoo (supra), reliance on which has been placed by the learned Single Judge, is per incuriam, inasmuch as it has not taken into account a division Bench decision of this Court in case of Suryakanti Mishra v. State of Orissa and others; 2005 (Supp.) OLR— 906. He submits that Page 2 of 5 the impugned order of the learned Single Judge requires interference. 8. The division Bench decision in case of Suryakanti Mishra (supra) has clearly laid down as under:- “xxx xxx xxx Reading and writing Oriya, as provided in Section-11(b) of the Act is not in accordance with any standard of academic educational qualification but capability to read and write. Obviously that means that the persons filing nominations must have the capacity to read and write Oriya alphabets as well as “Yuktakhyaras” i.e. the alphabets made on combination of vowels and consonants.” 9. We have carefully perused the reasoning assigned by the learned Single Judge in the impugned order and we have examined the decisions rendered in case of Suryakanti Mishra (supra) as well as Usha Sahoo (supra). 10. We further find that in case of Usha Sahoo (supra), the division Bench decision in case of Suryakanti Mishra (supra) has been noticed and distinguished in the facts and circumstances of that case and after relying on the decisions in case of Labangalata Mallick v. Mandakini Mallick; 2010 (Suppl. I) OLR 73 and Kalabati Jena v. Dhaneswar Jena; 2009 (Suppl. II) OLR 334 and has held in para-6 as under:- “(6). This Court in the case of Labangalata Mallick v. Mandakini Mallick & ors, 2010 (Supp. I) OLR 73 dealing with a similar question relied upon the decision in the case of Kalabati Jena v. Dhaneswar Jena, 2009 (Supp. II) OLR 334 distinguishing the Judgment passed by the Division Bench in the case of M/s. Mrs. Suryakanti Mishra v. State of Orissa & seven ors, 2005 (Supp.) OLR Page 3 of 5 906 & laid down that no hard & fast rule can be prescribed for finding out as to whether a person who was a contestant in the Grama Panchayat election known how to read & write Oriya or not. Such conclusion should be drawn from the analysis of facts of each case. No doubt, this Court while exercising jurisdiction under Article 226 of the Constitution for issuing a writ of certiorari is not to re-appreciate the evidence on records, but, however, if it is found that the conclusion draw sic. (drawn) by the authorities/Courts below is based on surmises & conjectures, it can quash such order or orders.” 11. It is not the case of the appellant that it was specifically pleaded in the election petition that the returned candidate did not have the capacity to read and write “Odia Alphabets and Yuktakhyaras” as is apparent from paragraphs 8 and 11 of the Election Dispute Petition filed before the Civil Judge (Junior Division), Rairangpur, which reads as follows:- “8. That, on the date of scrutiny of nomination paper, the petitioner filed an objection in writing before election officer, (OP No.2) complaining therein that the OP No.1 has not known read and write in odia except her name and therefore she is disqualified to contest for the post of Sarapanch of Bhalubasa Gram Panchayat as per under Section 11(b) of the Odisha Gram Panchayat Act, 1964. xxxx xxxx xxxx xxxx though the petitioner had objected the 11. That, nomination of OP No.1 on the ground of having no knowledge of read and writing odia language except write her name, which violate under Section 11(b) of Odisha Gram Panchayat Act, 1964.” 12. From the pleading, it appears the returned candidate is able to read and write in Odia. Section 11 of the Gram Panchayat Act employs the word “Odia”, but not “Odia language”. It seems the Page 4 of 5 objector attempts to add confusion and strain the language used in the statute. 13. This Court wishes to place on record the settled principle that failure to cross-examine the witness on certain aspects by itself is not a ground to recall the witness for the purpose of further cross- examination, as allowing to do so would tantamount to fill up the lacunae. It may be noteworthy that Order 18, Rule 17 of the Code of Civil Procedure, 1908 does not contemplate enabling parties to recall any witness for further cross-examination or examination-in- chief or to place any additional material which could not be adduced when evidence was being recorded (See, Rajiv Mehta v. Savita Mehta, 2018 SCC OnLine Del 10936). It is well-settled, vide Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar, AIR 2009 SC 1604 that the power to recall and re-examine is to be sparingly exercised. 14. In such view of the matter, we do not find any illegality in the impugned order passed by the learned Single Judge which does not require interference by this Court. 15. Accordingly, this writ appeal stands dismissed being devoid of merit. Chief Justice (Chakradhari Sharan Singh) Judge (M.S. Raman) S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 15:51:24 Page 5 of 5