Orissa High Court
Jayaram Nayak vs Balaram Swain & Ors on 27 September, 2022
A.F.R
IN THE HIGH COURT OF ORISSA CUTTACK
W.P.(C) No.23622 of 2022
(In the matter of an application under Articles 226 & 227 of
the Constitution of India.)
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Jayaram Nayak .... Petitioner
Versus
Balaram Swain & Ors. .... Opposite Parties
For Petitioner ... Mr.K.K.Mishra, Advocate
For Opposite Party ... Mr. S. Palit, Senior Advocate
No.1
For Opposite Party ... Mr. S. Ghose,
Nos.2 & 3 Additional Government Advocate
JUDGMENT
PRESENT:
THE HONOURABLE JUSTICE BISWANATH RATH
Date of Hearing and Judgment: 27.09.2022
Biswanath Rath, J. This Writ Petition involves a challenge to the order of
the Election Tribunal dated 05.04.2022 in unilaterally allowing the
application for condonation of delay involving an Election Dispute
raised under Section 30 & 31 of the Odisha Gram Panchayat Act, 1964
// 2 //
as appearing at running page-26 of the brief i.e. a part of Annexure-3
involving Election Petition No.4 of 2022.
2. Mr. Mishra, learned counsel appearing for the return candidate-
Petitioner taking this Court to the aspect of limitation disclosed in the
Election Dispute, reading together with the provision at Section 31 of the
Odisha Grama Panchayats Act, 1964 hereinafter in short be reflected as
"the Act, 1964", contended that once there is delay in institution of an
Election Dispute under the provision of Section 31 of the Act, 1964, the
return candidate should have been involved prior to final decision in the
condonation of delay and dependent on the outcome, the matter could
have been considered for admission and not otherwise and that too
abruptly closing the issue on limitation for all time to come.
3. Reading through the provision at second proviso of Section 31 of
the Act, 1964 and further referring to a decision of this Court in the case
of Maina Tandia vrs. Election Officer-Cum-B.D.O., Kantamal and
Others as reported in (2008) 105 CLT 407, Mr. Mishra, learned counsel
for the Petitioner brings to the notice of this Court that through this
decision the Division Bench of this Court has come to hold that once
there is delay involving Election Dispute, the same should not have been
decided ex parte.
4. It is, in this view of the matter, Mr. Mishra, learned counsel
appearing for the return candidate-Petitioner seeks intervention of this
Court in the order dated 05.04.2022 and setting aside of the same thereby
passing appropriate direction.
5. Mr. Palit, learned Senior Counsel appearing for the defeated
candidate i.e. the Election Petitioner, however, reading again through the
provision at Section 31 of the Act, 1964 contended that for the
prescription therein even involving the delay aspect and for the power
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provided to the Tribunal through the provision in second proviso at
Section 31 of the Act, 1964 for taking a decision in such matter, the
learned Civil Judge (Junior Division), Aska-the Tribunal exercised its
discretion on the condonation of delay aspect. Mr.Palit, learned Senior
Counsel thus submits, there is no illegal exercise of power by the trial
court requiring to interfere therein.
6. Mr.Palit, learned Senior Advocate appearing on behalf of the
defeated candidate further taking this Court to the provision at Section
38 of the Act, 1964 submitted that there is an attempt by the Petitioner in
bringing such dispute to the High Court in a way to linger the proceeding
in absence of availing of statutory remedy available through the above
provision. This Court here considering the applicability of the provision
at Section 38 of the Act, 1964, if any, to the case at hand finds, the
provision at Section 38 provides opportunity to a losing party in Election
Dispute to have a review mechanism before the same authority and
before availing appeal mechanism under the provision of Sub-Section (4)
of Section 38 of the Act, 1964. This Court finds, the provision at Section
38 of the Act, 1964 has no application to the case at hand at all and thus
finds there is no force in such submission.
7. Mr. Palit, learned Senior Advocate appearing for the defeated
candidate / losing candidate however on the issue involved and raised by
the successful candidate relied on a decision of this Court in the case of
Sri. Mangal Charan Behera vrs. Sri. Banamali Biswal and Others as
reported in (2005) Sup Ori.Law Rev. 668. Taking this Court to the fact
available in para-1, the observation of the Court in para-6 and plethora of
direction contained in para-8 therein, Mr. Palit, learned Senior Advocate
submitted that for the ruling of the Division Bench of this Court, the
question of maintainability of Election Petition on the ground of
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limitation is very much available even after admission of the Election
Dispute, subject to framing of issues therein and dealing with such issues
in the final adjudication of the dispute, contended there is no room to
challenge such orders at this stage. In the circumstance Mr. Palit, learned
Senior Advocate submitted that the Petitioner-the return candidate has a
scope of agitating such dispute by making specific pleadings through his
written statement, requesting for framing appropriate issue and getting it
adjudicated at appropriate time in the ultimate trial of the suit and in no
circumstance, the Writ Petition in the present form is entertainable.
8. Considering the rival contentions of the parties, this Court finds,
short questions involved herein to be decided is; even assuming that the
provision at Section 31(1) of the Act, 1964 involves only a composite
Election Dispute even inclusive of delay condonation aspect and for the
protection on such issues with the Election Tribunal under the second
proviso of Section 31 of the Act, 1964, if the Election Tribunal is
justified in taking a decision on the question of condonation of delay ex
parte ? and when the decision is taken ex parte in condonation of delay,
whether the prospect of adjudicating such issues in the ultimate trial of
the suit is available or not?
9. Taking into account the provision applicable to the case at hand
and as relied by both the parties, this Court finds, the provision at
Section 31(1) of the Act, 1964 reads as follows:-
31. Presentation of petitions- (1) The Petition shall be presented on
one or more of the grounds specified in Section 39 before
the Civil Judge (Junior Division) having jurisdiction over
the place at which the office of the Grama Sasan is situated
together with a deposit of such amount, if any, as may be
prescribed in that behalf as security for costs within fifteen
days after the date on which the name of the person elected
is published under Section 15:
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Provided that if the office of the Civil Judge (Junior
Division) is closed on the last day of the period of limitation
as aforesaid the petition may be presented on the next day
on which such office is open:
Provided further that if the petitioner satisfies the Civil
Judge (Junior Division) that sufficient cause existed for the
failure to present the petition within the period aforesaid the
Civil Judge (Junior Division) may in his discretion condone
such failure."
10. Looking to the safeguard under the provision at second proviso of
Section 31 of the Act, 1964 this Court finds, undisputedly there is no
need of separate filing of delay condonation application and such an
attempt can be made in the Election Dispute itself. Looking to the
cardinal principle of law on limitation, this Court finds, the position of
law has been settled through number of decisions even through the
Hon'ble Apex Court, on involvement of issue on condonation of delay
the normal rule is, a party likely to be affected should be provided with
an opportunity of hearing before there is condonation of delay.
11. It is, at this stage of the matter, this Court looking to the plea taken
in the condonation of delay application, finds, the averments made in
para-14 of the Election Dispute specifically dealing with delay in
bringing the Election Dispute reads as follows:-
"That in view of publication of the result of election of
Sarpanch of Pailipada Gram Panchayat by the Election Officer
under Section 15 of the Orissa Grama Panchayat Act, 1964
read with Rule 52 of Orissa Gram Panchayat (Election) Rules,
1965, on 02/03/2022, the election petition ought to have been
filed within 15 days thereof i.e. on or before 17/03/2022. But
as the petitioner fell sick having suffered from E. fever & P.
Neuritis since 10/03/2022 and was under treatment in CHC,
Belaguntha as a patient vide OPD Regn. No.8340
dtd.10/03/2022 till 17/03/2022 and his treating Doctor advised
him to take bed rest for 2 weeks from 17/03/2022 i.e. till
// 6 //
31/03/2022, he could not file the election petition within
prescribed period by attending the Court in person. After
recovery from illness to some extent, the Petitioner obtained
the RTI information on 31/03/2022 relating to the nomination
and election of the Opposite Party No.3 as Sarpanch of
Pailipada Grama Panchayat and instructed his Advocate to
prepare the election petition and accordingly the same was
prepared and since 01/04/2022 to 03/04/2022 the court was
closed on account of holiday, the election petition is filed
today i.e. on 04/04/2022 after reopening of the Court. Since
due to aforementioned sufficient cause, the Petitioner could
not file the election petition within stipulated time, he files a
separate petition as per proviso to Section 31(1) of Orissa
Grama Panchayat Act, 1964, along with this election petition
praying to condone the delay/failure in filing the election
petition within prescribed period."
12. Since the application for condonation of delay is decided ex parte,
there is no possibility of objection by the party likely to be affected.
Undisputedly Petitioner has so many pleas requesting condonation of
delay more particularly involving his suffering at the particular point of
time in one of the Government Hospital and the Petitioner also files
documents in support of his claim of illness. From the observation of the
trial court made in deciding the petition under order 7 Rule 11 of CPC,
this Court finds, there is availability of document to establish the claim
of delay made by the Petitioner. Keeping the cardinal principle of law on
condonation of delay aspect in view, this Court finds, there has been
attending to such issues also by at least two Division Benches of this
Court. From the earlier decision in Sri Mangal Charan Behera (supra)
this Court finds, the paragraph no.1 therein remains as follows:-
"The Petitioner in this writ application has sought for
quashing the order under Annexure-1 and for directing disposal
of Election Misc. Case No.1 of 2003 pending before the Civil
Judge (Junior Division), Balasore within a stipulated period.
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The Petitioner was the returned candidate being elected as a
Sarpanch of Markona Gram Panchayat situated under Simulia
Block in the district of Balasoe. The opp. Party No.1 filed
Election Misc. Case No.1 of 2003 before the Civil Judge (Junior
Division), Balasore under the provisions of the Orissa Gram
Panchayat Act. The admitted case of the parties is that the
election was held on 19.02.2002 and the results were declared
on 21.2.2002. The election petition was filed by opp. Party no.1
on 15.04.003 along with an application u/s 5 of the Indian
Limitation Act, 1963. It appears that after filing of election
petition along with the application for condonation of delay, the
learned Civil Judge (Junior Division), Balasore condoned the
delay by exercising power under the second proviso to Section
31(1) of the Orissa Gram Panchayat Act and issued notice to the
present petitioner and other opposite parties therein. It further
transpires that the present Petitioner appeared in the said
election case on 1.8.2003 and subsequently filed his objection/
written statement to the Election Misc. Case. It also further
transpired that the writ Petitioner took a stand in his objection
that the Election Misc. Case is barred by time. Thereafter, the
Petitioner filed an application under Order 14 Rule 2(2) of the
Code of Civil Procedure, to decide the question of
maintainability of the Election Misc. Case on the ground of
limitation, as a preliminary issue. The said application having
been rejected by the Civil Judge (Junior Division), Balasore, by
this order dated 15.03.2004 (Annexure-1), the Petitioner has
preferred the present writ petition."
The observation of the Division Bench in para-6 reads as follows:-
"In this view of the matter, we are of the view that the
issue regarding non-maintainability of the election petition on
the ground of limitation has to be gone into by the Election
Tribunal and while deciding the said issue, the Election
Tribunal has to reconsider the order dated 9.5.2003 by which
the delay in filing the election petition was condoned ex parte
before issuance of notice to the opp. Parties in the said election
petition."
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Keeping in view the above observation in para-8 the Division
Bench has given a plethora of directions. The direction in paragraph
No.8 therein reads as follows:-
(i) "The Learned Civil Judge (Junior Division),
Balasore shall frame a specific issue with regard to the
maintainability of the election petition on the ground of
limitation along with other issues that may be framed.
(ii) The Learned Civil Judge (Jr. Divn.) while
pronouncing his judgment on the election petition after
trial of the same, shall first address itself, in the
judgement, to the issue regarding maintainability of the
application on the question of limitation.
(iii) During trial of the Election Misc. case, the writ
Petitioner who is the Opp. Party No.1 in the Election
Misc. case, shall be given opportunity to rebut the
grounds set-forth by the election petitioner explaining
the delay in filing the Election Misc. case, as stated in
his application for condoning the delay.
(iv) If the learned Civil Judge (Jr. Divn.) while deciding
the issue on the question of maintainability of the
election petition on the ground of limitation, comes to a
finding that the delay in filing the Election Misc. case
has been sufficiently explained, he may, by exercising
the power conferred on him under the second proviso to
Section 31(1) of the Orissa Gram Panchayat Act, hold
that the delay has been sufficiently explained and then
proceed to decide the other issues in the Election Misc.
case, in the judgement.
(v) In the event the learned Civil Judge (Jr. Divn.)
comes to a finding that the election Petitioner has failed
to show that there is sufficient cause for condoling the
delay in filing the Election Misc. case, he on finding that
the Election Misc. case is barred by time, will not be
required to give findings on other issues."
13. Reading the above, this Court finds, the Division Bench of this
Court has taken note of ex parte disposal of the delay condonation
application and while deprecating such consideration held, this will not
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affect the issue on limitation being considered in the ultimate trial of the
dispute, thus kept the issue open to be adjudicated in the ultimate
decision of the suit after framing of particular issues.
This Court first of all observes, there is no question of judgment
being passed by the Division Bench and then binding on Single Bench in
the peculiar circumstance stated hereunder. In the nature of allotment/
assignment at the relevant point of time involving the Gram Panchayat
Act used to be allotted two Judges Bench. In a subsequent development,
same assignment got into the Single Judge Bench. Therefore, the
decision taken note here can be maximum construed to be a Bench
decision. Further looking to the discussion by the Bench decision above
on having a scope for framing issue on the question of limitation in the
ultimate trial and decision thereon, this Court finds, the analysis of the
Court may not be justified as for the opinion of this Court, the Bench
deciding such matter appears to have failed in making a distinction
between a plaint under the Code of Civil Procedure and a Petition in an
Election Dispute under the Orissa Grama Panchayat Act when the
provision in filing suit under the Code of Civil Procedure not only has
any scope to file suit belatedly at the same time does not also give power
to the Civil Court to condone delay in filing suit whereas for the
provision at Section 31 of the Orissa Grama Panchayat Act, there is
clear prescription in case Election Dispute is filed belatedly and the
Election Tribunal has the discretion for condonation of delay. Therefore,
this Court finds, in the above circumstance the decision above can be
distinguished not being a proper law.
14. This Court finds, this aspect has again been gone into by another
two Judges Bench through the decision vide (2008) 105 CLT 407 as per
roster available therein. The Division Bench here while deprecating the
// 10 //
ex parte disposal of delay condonation application, in paragrapg-9
therein has come to observe as follows:-
"Therefore, it is a fact that the application for
condonation of delay was decided ex parte without
providing an opportunity of hearing to the other side and
that too without a speaking order. In an election petition
delay of more than six months of the time limit prescribed
by the Statute was not liable to be condoned in this
manner. The parties should have been given an opportunity
of hearing and the application should have been decided by
a reasoned order. It is noticed that while deciding issue
No.3, the learned trial Judge has made an observation that
the Petitioner was ill but no such observation was made
while accepting the application for condonation of delay,
more particularly when the order condoning the delay was
passed ex parte without any notice to the other side."
In addition to above observation in para-10 therein the two Judges
Bench even though finds, the case is to be remitted back to the trial court
for first deciding the delay condonation application after providing
opportunity of hearing to the parties, but restrained itself in doing so for
there is already involvement of next Election making the attempt through
the Election Dispute finally infructuous.
15. Looking to the cardinal principle of law, this Court finds, the crux
in the Election Dispute has nothing to do with the condonation of delay
aspect and there is no doubt unless the Election Petitioner gets out of
limitation aspect, there may not be any point in going into other aspects.
Trial of all such issues together with other issues on merit of case may
not be beneficial to either of the parties and keeping in view that there is
hardly seventeen days delay in filing the Election Dispute and looking to
the disclosures in paragraph-12 therein, this Court finds, the defeated
candidate has sufficient explanation on the delay approach to the
Election Tribunal. To avoid any conflict at a later stage this Court likes
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to adopt the observation made in the decision vide (2008) 105 CLT 407
and accordingly, while interfering in the impugned order dated
05.04.2022, sets aside the same and remits the matter back to the
Election Tribunal i.e. the learned Civil Judge (Junior Division) Aska for
re-adjudication on the question of delay after providing opportunity of
hearing to the Petitioner herein. Upon taking a fresh decision on the
condonation of delay aspect, the trial Court if finds appropriate shall
proceed for admission of the matter and then to trial.
16. For the remand of the proceeding, this Court directs the Petitioner
herein and the contesting Opposite Party to appear before the trial court
along with a certified copy of this order on 11th October, 2022.
17. If the Petitioner is so advised, he may file objection to the delay
condonation aspect before the trial court on the date of appearance itself,
with service of copy thereof on the other side.
18. For there is requirement of fresh adjudication of the condonation
of delay aspect, neither the observation of this Court made hereinabove
nor any observation and findings of the trial court made in the impugned
order or in the rejection of application under Order 7 Rule 11 CPC shall
have anything to do with the fresh disposal of the condonation of delay
aspect. Appropriate steps for fresh disposal of the application for
condonation of delay shall be undertaken within a period of fifteen days
from the date of appearance of the parties.
19. The Writ Petition succeeds. However, there is no order as to the
costs.
....................................
BISWANATH RATH, J.
Orissa High Court, Cuttack.
Dated the 27th day of September, 2022/Swarna, Junior Stenographer
