(An application under Articles 226 & 227 of the Constitution of India.) Patuari Padhan v. Haribandhu Padhan and others
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.39505 of 2023 (An application under Articles 226 & 227 of the Constitution of India.) Patuari Padhan …… Petitioner Versus Haribandhu Padhan and others …... Opposite Parties Advocate(s) appeared in this case :- For Petitioner For Opposite Parties : :
Legal Reasoning
presumption taken by both the courts being unsupported by prima facie material and against specific denial of the Petitioner in his evidence does not permit the courts to draw the conclusion against him that he has suppressed material facts. 13. The Petitioner is an elected candidate who has been elected to the office of Sarpanch with the support of the people. He has secured votes in his favour for election to the office of Sarpancha of Sahala Grama Panchayat. Unless the suppression of substantial character or of sizeable asset by the Petitioner is brought on record, he should not be thrown out of his elected office in such process of disqualification for small things. W.P.(C) No.39505 of 2023 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 14. For the reasons stated above, as both the courts have concluded based on presumptions to disqualify the Petitioner from the office, this Court comes to the opinion that the judgments of both the Courts are suffering from errors. Accordingly, the judgments of the trial court as well as the appellate court under Annexure 5 & 1 are set aside. The Petitioner is restored to the office of Sarpanch of Sahala Grama Panchayat. 15. Certified copies of evidences as produced by Mr.Mishra in course of hearing are kept on record.
Arguments
Mr.Himanshu Mishra, Advocate Mr.Amit Kumar Nath, Advocate for O.P.No.1 CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 16th August 2024 B.P. Routray,J. 1. The judgment of the learned Civil Judge declaring the election of the Petitioner as void under Section 25(w) of the Gram Panchayat Act (in short ‘OGP Act’), which is confirmed in the appeal by the learned District Judge, is challenged in the present writ application. W.P.(C) No.39505 of 2023 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 2. Heard Mr.Mishra, learned counsel for the Petitioner and Mr.Nath, learned counsel for Opposite Party No.1. Opposite Parties No. 2 and 3 did not enter appearance despite sufficiency of service of notice on them. 3. Opposite Party No.1, namely, Haribandhu Padhan filed Election Petition No.1 of 2022 in the court of the learned Civil Judge (Jr.Division), Rampur for declaring the election of the Petitioner to the office of Sarpanch of Sahala Grama Panchayat as void inter alia on the ground that, he has suppressed the material facts in his affidavit. The learned trial court in course of adjudication framed seven issues, which are as follows: (i) Whether the election petition is maintainable in the eye of law? (ii) Whether O.P.Nos.1 & 3 adopted corrupt practices in the 2022 Sahala Gram Panchayat Election by bribing voters? (iii) Whether O.P.No.1 has submitted an incomplete affidavit in his nomination paper? (iv) Whether O.P.No.2 is a disqualified candidate by reason of having more than one living spouse at the time of the elections? (v) Whether the election of O.P.No.1 as the duly elected Sarpanch of Sahala Grama Panchayat is liable to be declared void under Section 39 O.G.P.Act? (vi) Is there a cause of action to institute this petition? (vii) To what reliefs is the petitioner entitled? W.P.(C) No.39505 of 2023 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 4. All the issues except Issue No.3, 5, 6 & 7 are answered in negative. As seen from the above, Issue No.5, 6 & 7 are dependent on the finding of Issue No.3 and issue No.3 is answered against the elected candidate. Issue No.3 speaks that whether present Petitioner (elected candidate) has filed incomplete affidavit during his nomination for the office of Sarpanch. 5. The affidavit submitted by the present Petitioner has been marked as Ext.4 before the trial court. According to the opinion of the trial court, the Petitioner did not mention his bank account number in IDBI, Dunguripali and the amount deposited therein. It is also concluded by the trial court that the Petitioner has failed to disclose the bank details of his spouse and dependents. 6. Perusal of copy of Ext.4 reveals that at Clause 3(A), the Petitioner has disclosed having possessed one Swift Desire Car of approximate value of Rs.3,00,000/- and 100 grams of gold ornaments having approximate value of Rs.5,00,000/-. At Clause 3(D), he has disclosed of having one bank account in IDBI, Dunguripali without having any deposited amount therein. Further according to the Petitioner, he did not have any bank account in the name of his spouse and dependents. But this is disbelieved by the learned trial court as well as the appellate court W.P.(C) No.39505 of 2023 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 that it cannot be presumed that the Petitioner or his spouse did not have any amount in the bank considering their status. 7. So far as evidence is concerned, the election Petitioner and the present Petitioner both were examined as P.W.1 and D.W.1 respectively and except them, no other witness were examined from either side. 8. Now coming to Issue No.3 as per the facts stated above, the point falls for determination is, whether the Petitioner has suppressed the substantial information with regard to his assets including bank account in his affidavit ? 9. Section 25(w), which was inserted by way of Amendment in 2021, requires that the candidate has to furnish an affidavit containing particulars of his criminal antecedents, assets, liabilities and educational qualification at the time of filing of nomination and further, if the candidate gives false information or conceals any information in his nomination paper or the affidavit, he shall be punishable with imprisonment and fine. 10. In Kisan Shankar Kathore vrs. Arun Dattatray Sawant and others, (2014) 14 SCC 162, it is held that non-disclosure of facts would not be a material lapse unless it is a substantial lapse or suppression of W.P.(C) No.39505 of 2023 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 substantial information. In Kariho Kri and Nuney Tayang and another, AIR 2024 SC 2121, it is observed that, non-disclosure of each and every assets owned by a candidate would not amount to a defect, much less a defect of substantial character and it is not necessary to declare every item of immovable property that he or his dependent family members owned, unless the same is of such value has to constitute a sizeable asset in itself and require to be disclosed. Paragraph 44 of the said judgment reads as follows: “44. Though it has been strenuously contended before us that the voter's ‘right to know’ is absolute and a candidate contesting the election must be forthright about all his particulars, we are not inclined to accept the blanket proposition that a candidate is required to lay his life out threadbare for examination by the electorate. His ‘right to privacy’ would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. It is not necessary that a candidate declare every item of movable property that he or his dependent family members owns, such as, clothing, shoes, crockery, stationery and furniture, etc., unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature, in terms of his lifestyle, and require to be disclosed. Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a particular movable asset by a candidate would amount to a defect of a substantial character. For example, a candidate and his family who own several high-priced watches, which would aggregate to a huge figure in terms of monetary value, would obviously have to disclose the same as they constitute an asset of high value and also reflect upon his lavish lifestyle. Suppression of the same would constitute ‘undue influence’ upon the voter as that relevant information about the candidate is being kept away from the voter. However, if a candidate and his family members each own a simple watch, which is not highly priced, suppression of the value of such watches may not amount to a defect at all. Each case would, therefore, have to be judged on its own facts.” W.P.(C) No.39505 of 2023 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 11. In the case at hand, looking to the materials brought on record with regard to suppression of material fact by the Petitioner in his affidavit, it is seen that P.W.1 in his evidence has stated about having one motorcycle by the present Petitioner except the car he disclosed in his affidavit. Nothing more has been brought on record regarding suppression of facts or assets by the Petitioner (elected candidate). No document has been produced with regard to any amount kept in the bank account of the Petitioner against his disclosure made in the affidavit nor in respect of his spouse. There is absolutely no material of substantial nature brought in evidence against the disclosure of the Petitioner made in the affidavit under Ext.4. The election Petitioner has not taken any step either to examine the bank authority or any other witness to establish his contention with regard to possession of assets by the elected candidate beyond the disclosure given in the affidavit. Only one motorcycle being stated in the evidence of P.W.1 and undisputed by D.W.1, would not attract substantial suppression of assets. This Petitioner as D.W.1 has specifically answered the question of election Petitioner that he did not have any amount in his account at the time of filing of nomination. This has not been rebutted in evidence or by production of materials from the side of the election Petitioner. W.P.(C) No.39505 of 2023 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2024 11:08:35 12. Despite this specific denial of the elected candidate in his evidence about non-possession of any other asset or having nil amount in his bank account, both the trial court and appellate court have stated that such statement of the Petitioner is not believable. This presumption taken by both the courts is without any supporting material and it needs to be mentioned here that without any basis for presuming of having any amount in the bank account, the conclusion of the courts based on the presumptions are completely erroneous. This is the main foundation of forming opinion by both the courts regarding suppression of material facts by the Petitioner in his affidavit under Ext.4. As stated above, the
Decision
16. The writ petition is disposed of as allowed. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.39505 of 2023 Page 8 of 8