High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No. 15006 of 2012 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Makardhwaja Mohanty, Son of Late Chaitanya Charan Mohanty, AT: Alingi, PO: Kasarada, PS: Gobindpur, Dist: Cuttack -Versus- Dharmabira Kanungo, Son of Jugal Kishore Kanungo, AT/PO: Uttaran, PS: Gobindpur, Dist: Cuttack … Petitioner … Opp. Party For Petitioner For Opp. Party : : M/s. Bibekananda Bhuyan & C.R.Swain Mr. Bidyadhar Mishra, M/s Subhalaxmi Satpathy & D.P.Mishra. P R E S E N T: ----------
Legal Reasoning
directed the election petitioner to prima facie prove the allegations made by him under Annexure-1 before it or to file affidavit with cogent and substantial evidence before passing order for calling for documents, but the Tribunal has mechanically allowed the same without considering the 4 objection filed by the petitioner under Annexure-2. The Tribunal has made gross illegality by calling for the Death Register before commencement of trial or filing of written statements. Concluding his argument, Mr.Bhuyan submitted to allow the writ petition. 4. Mr. Bidyadhar Mishra, learned counsel appearing for the opposite party supporting the impugned order passed by the Election Tribunal submitted that there is no infirmity or illegality in the order impugned herein. It is further submitted that the Tribunal under Order 11, Rule 14, CPC is duly empowered to order for production of such documents relating to any matter in question in such suit as the Court shall think right. Further referring to Order 16, Rule 6, it is submitted that any person may be summoned to produce the document without being summoned to give evidence. 5. On the rival, factual and legal contentions advanced by the parties, the questions that fall for consideration by this Court are as follows:- (i) Whether the Election Tribunal is justified to pass impugned order directing production of Death Register before commencement of trial or filing of written statement; (ii) Whether the Election Tribunal is justified in accepting petition dated 30.07.2012 filed under Annexure-1 without being supported by an affidavit with a prayer to issue necessary direction calling upon 5 Registrar, Birth and Death-cum-Medical Officer, I/c, Adashpur, U.P.H.C. to produce and/or cause production of Death Register of the said U.P.H.C. for the years 2008 to 2011 to prove the entries regarding death of three persons? 6. Since both the questions are inter-linked, they are dealt with together. Undisputed facts are that the election petitioner filed Election Petition challenging the election of the writ petitioner as Sarapanch of Uttaran Grama Panchayat. The grounds of challenge, inter alia, are that the Election Officer illegally rejected the valid votes cast in favour of Election petitioner and during polling of votes, in respect of some dead persons, votes were cast and the same were counted in favour
Arguments
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 12.03.2013 B.N.Mahapatra,J. This writ petition has been filed at the instance of the returned candidate with a prayer to quash the order dated 08.08.2012 (Annexure-3) passed by the Civil Judge (Jr. Division), 2nd Court, Cuttack (for short, ‘the Tribunal’) in Election Misc. Case No.8 of 2012 directing production of Death Register of U.P.H.C., Adashpur for the years 2008 to 2 2011(both the years inclusive) to prove the entry regarding death of three persons. 2. Petitioner’s case in a nut-shell is that the election petitioner (opposite party herein) filed Election Misc. Case No.8 of 2012 challenging the election of the present petitioner- Makardhwaja Mohanty for declaring his election to the post of Sarapanch, Uttaran Grama Panchayat under Kantapada Block in the district of Cuttack as illegal and for inspection and counting of ballots. Election petitioner’s further case is that as per the result of counting recorded in Form 8-A of 12 Wards by the Presiding Officers, the election petitioner was defeated by a margin of three votes. The Election Officer illegally rejected the valid votes cast in his favour and declared the writ petitioner as elected Sarapanch with margin of three votes. During the election, votes in respect of some dead persons were cast and the same were counted in favour of the returned candidate, for which the result of the election has been influenced; otherwise the election petitioner could have been elected. On receiving show cause notice, the returned candidate (writ petitioner) filed the show cause/written statement and the case was posted to 30.07.2012. On 30.07.2012, the election petitioner filed an application to call for the Death Register for the years 2008 to 2011 from U.P.H.C., Adashpur on the basis of the information obtained regarding such death through R.T.I. Act. On 06.08.2012, opp. party-writ petitioner 3 filed his objection to the petition dated 30.07.2012 filed by the Election Petitioner, inter alia stating that as per Order 13, Rule 10, CPC, an application is required to be supported by an affidavit, which is the mandate of law and in absence of which, the petition is not maintainable. Further objection was that the Death Register is a public document and certified copy of the same is available, which can be marked without any formal proof. However, the Election Tribunal vide impugned order dated 08.08.2012 has allowed the petition dated 30.07.2012 filed by the election petitioner; hence the present writ petition. 3. Mr.B.Bhuyan, learned counsel appearing for the writ petitioner submitted that the impugned order has been passed without application of judicial mind. Calling for the documents as per the petition dated 30.07.2012 (Annexure-1) is premature as evidence has not yet been commenced. The Election Tribunal before directing production of Death Register should have directed the election petitioner to obtain certified copy of the Death Register so also to file the affidavit. Therefore, the learned Tribunal having allowed the petition it has exercised a jurisdiction not vested in law. Learned Election Tribunal should have
Decision
of the writ petitioner, the returned candidate, for which the result of the election has been influenced. In paragraph 6 of the writ petition it is averred by the writ petitioner that after receipt of the notice the writ petitioner appeared in the Court below and filed his show cause/written statement and accordingly, the learned Court below posted the case to 30.07.2012 for hearing. Therefore, the stand taken by the writ petitioner that the Tribunal has committed gross illegality by calling for the Death Register before commencement of trial or filing of written statements is not correct and contrary to averment made at paragraph 6 6 of the writ petition. Moreover, the trial of an election petition commences from the date of receipt of election petition by the Court and continues till the date of its decision. (See Kailash vs. Nanhku and others, AIR 2005 SC 2441). 7. Sub-rule (1) of Rule 10 of Order 13 CPC provides that the Court may of its own motion, and may in its discretion upon application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same. Sub-rule (2) of Rule 10 of the said order provides, every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purpose of justice. 8. Thus, application made under sub-rule (1) of Rule 10 of Order 13, CPC is to be supported by an affidavit only when such application is made by any of the parties to the suit, sent for, either from its own record or from any other Court record of any other suit or proceeding and inspection of the same. In the instant case, the contents and prayer of petition dated 30.07.2012 under Annexure-1 does not 7 reveal that such petition has been made under Rule 10 of Order 13, CPC. Therefore, compliance of filing supporting affidavit as required under sub-rule (2) of Rule 10 of Order 13, C.P.C. is not necessary and non- compliance of the same cannot render the petition under Annexure-1 invalid. 9. Reliance placed by the election petitioner on Order 11, Rule 14, CPC will be of no help to the Election Petitioner as the said Rule provides that it shall be lawful for the Court, at any time during pendency of the suit, to order the production by any party thereto upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents when produced, in such manner as it shall think just. 10. In the instant case, the Court is not directing any party to produce any document in his possession. However, under Order 16, Rule 6, C.P.C. any person may be summoned to produce the document. Therefore, the Election Tribunal is empowered under Order 16, Rule 6 to summon any person to produce any document. In view of such power vested with the Election Tribunal, it cannot be said that the learned Tribunal has committed any illegality in passing the impugned order dated 08.08.2012 and the said order is without jurisdiction. 8 11. Perusal of the petition under Annexure-1 reveals that the said petition has been filed for issuance of appropriate direction to the Registrar of Birth and Death-cum-Medical Officer, I/c, U.P.H.C., Adashpur to produce or cause production of Death Register of the said U.P.H.C. for the years 2008 to 2011(both the years inclusive) containing registration of death of (i) Ranjita Choudhury, daughter Basanta Choudhury, D.O.D. 18.08.2008, bearing registration No.349 dated 02.09.2008 (ii) Kanchan Choudhury, wife of Sanatan Choudhury, D.O.D. 12.07.2010, bearing registration No.276 dated 14.07.2010 and (iii) Khirabala Choudhury, wife of Lokanath Choudhury, D.O.D. 11.12.2011, bearing registration No.465 dated 17.12.2011 to prove the same and give evidence. In paragraph 4 (D) of the election petition, the specific allegation of election petitioner is that the returned candidate is a voter of Sl. No.134 of Ward No.11. In Ward No.11, three voters who were dead prior to the date of polling, voting has been caused in their names at the behest of the opposite party in his favour to further his prospect of winning. In order to prove the death of the above three voters, the petitioner has relied upon the entry in Death Register of Adashpur U.P.H.C. and has filed information obtained under R.T.I. Act from the Registrar, Birth & Death-cum-Medical Officer, U.P.H.C., Adaspur. In order to prove those entries, the Death Register of Adaspur UPHC for the years 2008 to 2011 is to be called for and the Registrar, Birth & Death- 9 cum-Medical Officer, U.P.H.C., Adaspur is required to be summoned to prove those entries and give evidence. 12. Needless to say that the aforesaid documents are vital documents and if produced, that will enable the Election Tribunal to arrive at a just conclusion on the issues arisen in the election petition. In the objection petition filed by the writ petitioner under Annexure-2, it is stated that the election petitioner has deliberately filed the petition to linger the proceeding and harass the writ petitioner on some pretext or other. This Court is unable to appreciate as to how the Election Petitioner will be benefited if the election case is lingered. Further, objection of the writ petitioner is that the Death Register of Adaspur U.P.H.C. is a public document under Section 74 of the Evidence Act. Under the provisions of Birth and Death Registration Act, certified copy of the entries is available under the format prescribed in the said Act which is per se admissible in evidence without calling for the records. Petitioner has deliberately failed to file the certified copy. Be that as it may, the writ petitioner has not made out a case as to how he is prejudiced because of passing of the impugned order except that the election case is lingered which is not appreciated by this Court. 13. At this juncture, it is necessary to extract the reason given by the Election Tribunal for allowing the petition dated 30.07.012 passed under Annexure-3, which is as follows: 10 “Considering the averments in the election petition, the Birth and Death Register is a vital document and would assist the Court in coming to a decision, and the same should not be shut out. Every document which will throw any light on a case is to be produced. Further, the petitioner has alleged that some votes were casted for dead person(s). As he is not the relative of the dead persons, it will be difficult on his part to procure the certified copies of the said register. So, in the interest of justice and to shorten the litigation period both the application’s are allowed. The petitioner is to examine himself after examining all other witnesses given in the list. Further he is directed to deposit Rs.1000/- (Rupees one thousand) on or before 17.08.12 for causing production of the Death Register and the official to give evidence with respect to the entries in it. Put up on 17.08.2012 for hearing.” 14. In view of the above, this Court finds no infirmity or illegality in the order passed by the Election Tribunal impugned herein and for the reasons stated supra, this Court is of the view that it is not a fit case where interference of this Court in exercise of extra-ordinary power under Article 226 of the Constitution of India is called for. 15. The writ petition is dismissed accordingly. ………………………. B.N.Mahapatra, J. Orissa High Court, Cuttack Dated 12TH March, 2013/ss