Pramodini Juadi vs Dillip Kumar Bagarty & Ors
2023 Latest Caselaw 1454 Ori

A.F.R

             ORISSA HIGH COURT : C U T T A C K

                     W.P.(C) No.3643 of 2023

                  An application under Articles 226 & 227 of
                       the Constitution of India, 1950

Pramodini Juadi                                  : Petitioner(s)


                          -Versus-

Dillip Kumar Bagarty & Ors.                      : Opposite Party(s)

For Petitioner                             : M/s. G. Misra, Sr. Adv.
                                                  D.K. Patra, R. Deo,
                                                  A.K. Dash,
                                                  P.K. Samal

For Opposite Party No.1                    : M/s. M.K. Mohanty,
                                                  A. Mishra

For Opposite Party Nos.2 to 6              : Mr. S. Ghose,
                                                  Addl. Govt. Adv.


                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 13.02.2023

1. Heard Mr. G. Misra, learned Senior Advocate appearing on behalf of the Petitioner, Mr. M.K. Mohanty, learned counsel for Opposite Party

// 2 //

No.1 and Mr. S. Ghose, learned State Counsel for Opposite Party Nos.2 to 6.

2. This Writ Petition involves a challenge to the order dated 2.02.2023 passed by the Collector, Subarnapur in exercise of power under Section 26 of the Odisha Grama Panchayats Act, 1964 hereinafter in short be reflected as "the Act, 1964" in final disposal of G.P. Appeal Case No.2/2022 vide Annexure-1.

3. Factual background involved herein is; a Notification having been brought involving three tier Panchayati Raj Election in the year 2022 for the post of Sarapanch, the process of election for the post of Sarpanch of Mayabarha Grama Panchayat under Dunguripali Block was undertaken. Petitioner as well as Opposite Party No.1 being the participants, the present Petitioner was declared to have come out successful being elected as Sarapanch of Mayabarha Grama Panchayat. Opposite Party No.1 being aggrieved by the declaration of result brought an application under Section 26 of the Act, 1964 before the Collector, Subarnapur to declare the return candidate as disqualified to hold the Office of Sarapanch, Mayabarha Gram Panchayat on the ground that the return candidate has three living children. This Application was registered as G.P. Appeal Case No.2/2022. On being noticed, the Petitioner i.e. the return candidate appeared before the Collector and submitted his response also involving a challenge to the maintainability of such proceeding on the premises that there is also pendency of Misc. Case before the Civil Judge (Jr.Divn.), S.Rampur. The response of the return candidate also involves a serious challenge to the allegation of return candidate having more than three children specifically contending that return candidate has two children namely Twinkly Juadi and Payal Juadi both are daughters of the return

// 3 //

candidate, however on the third child aspect the return candidate has specifically made a pleading that the allegation that return candidate has 3rd child namely Atul Juadi is baseless. In the process of hearing of the proceeding it is claimed that the Collector, Subarnapur has not only involved the report of the District Panchayat Officer, but has also involved examination of the Anganwari worker. For the Collector, Subarnapur finding that there is availability of contradictory report, the Collector, Subarnapur finally concluded the proceeding holding that the Petitioner is presently disqualified for contesting the election for the post of Sarpanch and thereby setting aside the result in favour of the Petitioner for the post of Sarpanch, Mayabarha Gram Panchayat under Dunguripali Block, resulting filing of the writ petition. There is no dispute that for the outcome in the Section 26 proceeding in the meantime there is casual vacancy in the post of Sarpanch and thus the Naib Sarpanch has already taken over the charge and there is stay of further election to the post of Sarpanch during pendency of the writ petition.

4. Mr. Misra, learned Senior Advocate appearing on behalf of the Petitioner taking this Court to the objection of the Petitioner on the 3rd child aspect and reading through the entire order sheet involving G.P. Appeal Case No.2 of 2022 brought out the following submissions:-(1) There is involvement of a report of the District Panchayat Officer, Subarnapur, but without supply of copy of such report to the Petitioner.

At this stage taking into consideration that there is no service of copy of any such report, this Court here records the submission of Mr. Mohanty, learned counsel for Opposite Party No.1 that the disputant therein was also not supplied with any such report.

// 4 //

Mr. Misra, learned Senior Advocate further reading through the entire order contended that majority part of the impugned order involved disclosure on case of parties and it is only towards last part of the order there is straightway jumping to the conclusion in the unseating of the elected Sarpanch the Petitioner. For there is involvement of examination of Anganwari Worker namely Susama Behera, there should have been opportunity of cross examination to the return candidate involved therein. The 3rd submission of Mr. Misra, learned Senior Advocate appears to be; even though there has been disclosure of verification of document and perusal of the same, however, there has been no discussion on the documents made available by both the parties and, if any, called for by the Collector in the process of hearing. Mr. Misra, learned Senior Advocate also on the point of law involved herein submitted that for the dispute involved an elected representative in the three tier election system, there should have been careful approach to such issue, but unfortunately there is applying of a very casual approach to such contentious issue by the Competent authority. It is, on the above premises, Mr. Misra, learned Senior Advocate takes this Court to the decision of this Court in the case of Jogo Bhatra Vrs. State of Odisha & Ors. : 130 (2020) CLT 513 and in the case of Sri Gouranga Chandra Padhi Vrs. State of Orissa & Ors. : 2005 (Supp.) OLR 948. It is on the footing that once there is involvement of examination of witness Mr. Misra, learned Senior Advocate in reference to the above judgments contended that for the settled position of law, there should have been opportunity of cross examination; may not be only to the return candidate but may be also to the candidate brought the litigation. Mr. Misra, learned Senior Advocate also challenges the impugned order on the premises that return candidate even though produced certified copy of the judgment in

// 5 //

the case of Jogo Bhatra Vrs. State of Odisha & Ors. : 130 (2020) CLT 513 before the competent authority, however, there has been no consideration of such judgment at all.

5. It is, in the above premises, Mr. Misra, learned Senior Advocate contested the impugned order on the ground of gross violation of natural justice and requested this Court for interfering in the impugned order, setting aside the same and for issuing necessary direction.

6. Mr. Mohanty, learned counsel for Opposite Party No.1 the defeated candidate in his first attempt reading through the provision at Section 26 of the Odisha Grama Panchayats Act, 1964 hereinafter in short be reflected as "the Act, 1964" contended that the proceeding was undertaken in terms of the provision at Section 26 of the Act, 1964 and for the desires in the Statute there is no provision providing opportunity of examination of witness and or cross examination of witness, if any. Mr. Mohanty, learned counsel on examination of Anganwari worker submitted that such contingency was pressed only for satisfaction of the Collector being the adjudicatory authority and there may not be involvement of cross examination of such witness. However for strong objection on such issue Mr. Mohanty, learned counsel even went to the extent that even after taking away the chief part of the Anganwari worker, there is sufficient material otherwise to succeed in the litigation and to support the impugned judgment. Mr. Mohanty, learned counsel claimed that the proceeding since is a summery proceeding, in the given situation the Collector, Subarnapur is required to only involve the party in hearing process and peruse the documents in order to give his verdict. Mr. Mohanty, learned counsel for Opposite Party No.1, however, on the claim that once a witness is examined even in the proceeding U/s.26 of the Act,

// 6 //

1964, there should be flowing of opportunity of cross examination to the party likely to be affected, has no objection to such claim. Mr. Mohanty, learned counsel for Opposite Party No.1, however, in his further opposition to the claim of the Petitioner, taking this Court to the response of the return candidate appended herewith at Annexure-3 and reading through paragraph no.8 submitted that there is no clear objection by the return candidate in so far as the allegation on 3rd child involved. Mr. Mohanty, learned counsel for Opposite Party No.1 further also on the premises of production of public documents by way of certified copy of the documents claimed that there is no dispute involving admissibility of such documents. Mr. Mohanty, learned counsel for Opposite Party No.1 also taking this Court to a decision in the case of Smt. Mithila Seth Vrs. The Collector, Bolangir : 2011 (Supp.-II) OLR 594 and further taking this Court to paragraph no.16 therein contended that once there is opportunity of hearing, there is no doubt that there is compliance of principle of natural justice and taking support of the decision in the case of Smt. Mithila Seth (supra) Mr. Mohanty, learned counsel for Opposite Party No.1 attempted to justify the impugned order and accordingly prayed for dismissal of the writ petition.

7. Mr. Ghose, learned Addl. Govt. Adv. though did not have any quarrel on the citations cited by Mr. Misra, learned Senior Advocate, however, attempted to support the impugned order by taking support of the submissions of Mr. Mohanty, learned counsel for Opposite Party No.1.

8. Considering the rival contentions of the parties, this Court finds, no doubt the proceeding initiated by Opposite Party No.1 involves an attempt to unseat an elected representative in exercise of power U/s.26 of

// 7 //

the Act, 1964 and there is no place for casual approach to such proceeding. This Court here taking into account some citations settling above position of law finds through the decision vide 1999 (9) SCC 386 that the Hon'ble apex Court observes, success of a candidate who has won on public mandate in an Election should not be lightly interfered with.

9. In the given circumstance this Court finds, the following questions required attention and determination of the case:- (1) Even assuming that provision at Section 26 of the Act, 1964 desires a summery proceeding by the Collector, but once the Collector takes into account report of the competent authority being called for by itself; whether there should be simply taking support of such copy without at least providing copy of such report to the parties in contest to have their objection, if any? (2) Once there is attempt for examination of an Anganwari worker to find out the truthfulness in the allegation of serious nature for the availability of two sets of report of Anganwari, chief of such witness being undertaken by the Collector, whether there should be opportunity of cross examination of such witness to both parties? (3) For mere recording that the competent authority has gone through the records and perused the same; can there be drawing of an inference that recording of observation alone amounts to reflection of his views on all such documents? (4) Further in the event a party relies on a judgment supporting his case on the aspect of cross examination based on his claim therein, if the competent authority is justified in not even taking into account such judgment?

10. Considering the submissions of respective parties and on perusal of the observation made in the impugned order, this Court first of all finds,

// 8 //

there has been examination of a witness by the Collector himself namely Susama Behera, Anganwari worker of Mayabarha under the ICDS Dunguripali. Not only that there is chief of such witness, there is also taking into account the deposition of such witness in the consideration process. This Court here keeping in view the question no.2 on perusal of the judgment in the case of Jogo Bhatra (supra) in paragraph no.9 therein finds, the single Bench of this Court has rendered the followings:-

"In the instant case, the petitioner in the enquiry has been noticed. He has entered appearance through his learned counsel and has participated in the enquiry. It appears that in the said enquiry before the Collector, the petitioner has been given due opportunity of hearing and the learned counsel for the petitioner has also been given the opportunity to cross- examine that Anganwadi Worker examined during the enquiry whose statement has been recorded by the Collector. The written note being accepted has been perused.

In the case of 'Ahalya Mangaraj -V- State of Orissa and others; 2006 (II) OLR 411, cited by the learned counsel for the petitioner; this Court in the factual settings of said case, found that on the basis of the two reports of the Child Development Project Officer (CDPO) and District Panchayat Officer (DPO), the Collector, without holding any enquiry, simply hearing the arguments from the side of the parties and without even noticing the glaring infirmity that years of birth of two children of the petitioner therein had been shown to be in one year which was not receiving any such explanation had passed the order. So, it was held that the order was not the outcome of proper enquiry providing due opportunity of hearing to the petitioner.

In the cited case of 'Sri Gouranga Chandra Padhi - V- State of Orissa and others; 2002 (Supp) OLR 948, the Collector on perusal of the documents and the contentions in the written note vis-a-vis, the report of the Cub-Collector had found that the certificates of different authorities to be overlapping with each other relating to the proof of birth of the third child after the cut off date. So, the Collector had asked for a report from the Medical Officer of the concerned

// 9 //

Primary Healthy Centre (PHC). The Medical Officer when submitted the report that the petitioner has three children, the Collector had rejected the claim of the petitioner in finally passing the order of disqualification of the petitioner. In that event, the Court held that when the documents relied upon by the parties were inconsistent and contradictory to each other; the Collector should have provided an opportunity to the petitioner by allowing him to cross-examine the persons who made statements and reports against him so also relating to the correctness of the documents relied upon by the intervener and Enquiry Officer. None of the above or any such other situation in that light being seen in instant case. The cited decisions do not come to the aid of the petitioner inasmuch those were on different factual settings and happenings during enquiry as detailed above."

Similarly looking to the second judgment relied on by Mr. Misra, learned Senior Advocate appearing on behalf of the Petitioner in the case of Sri Gouranga Chandra Padhi (supra) here this Court finds, the view of the Court in the above decision remains as follows:-

"After hearing the argument of the learned counsel, we are not inclined to agree with the arguments advanced by the learned Addl. Govt. Advocate and learned counsel appearing for the intervenor, inasmuch as when the public documents coming from the custody of the public officers are having the effect of contradicting each other, in such a case, learned Collector should have permitted an opportunity of hearing to the petitioner after providing copies of such documents to him. So also he should have provided him opportunity to produce documents and adduce evidence hat he is the father of two children. Under such circumstance, while setting aside the order, Annexure-1, we direct learned Collector, Balasore to undertake the enquiry afresh. If the intervenor wants to adduce any further evidence, he may be permitted to do so within a period not exceeding two weeks from the date of commencement of fresh enquiry. Evidence, which the Collector refers to or relies upon against the petitioner, in that respect, petitioner be granted an opportunity to cross-

// 10 //

examination such persons if he opts for the same and applies in writing. Attendance of such witness be obtained for the purpose of cross-examination expeditiously. After the aforesaid phase of enquiry is completed, petitioner be granted reasonable time of seven days to adduce his evidence and opportunity of cross-examination, if opted for be provided to the intervenor or the Govt. Counsel, as the case may be. Thereafter, the parties be heard and appropriate order be passed by learned Collector expeditiously.

We hope that the enquiry shall be conducted and completed in the aforesaid manner within a period of six weeks from the date of receipt of a copy of this order. Since the enquiry is remanded in the above indicated manner, therefore, after setting aside the order, Annexure- 1, we observe that petitioner shall continue as Sarpanch, but he shall not exercise financial power without prior approval of the District Panchayat Officer. If the enquiry is not completed within the time stipulated, for no latches of the petitioner, then this restriction of financial power shall automatically extinguished after expiry of six weeks and the shall function as the Sarpanch full-fledgedly till the out-come of the enquiry.

Writ petition is accordingly allowed."

11. Reading through both the above judgments this Court finds, there has been settling of law on the question no.2 clearly holding that once there is examination of party involving such serious issue, there should have been provision for cross examination of such party to the parties interested in litigation for cross examination of such party. Now looking to the complicacy involving such dispute, this Court is of the opinion that it would be better to provide opportunity of cross examination to both sides contesting the litigation. This Court here taking into account the decision cited by Mr. Mohanty, learned Counsel in the case of Smt. Mithila Seth (supra) and on perusal of the decision entirety, finds, the

// 11 //

moot question involved therein is; whether there was lacking of compliance of natural justice? As the provision at Section 26 of the Act, 1964 requires summery procedure to be followed in concluding such proceedings and as the parties are allowed to participate in the hearing with exchange of pleadings and documents, the Division Bench therein came to hold, exchange of documents and participation of parties in the hearing process disclose, there has been compliance of natural justice. This decision has nothing to do with the case at hand.

In the circumstance, this Court answering the question no.2 finds, this question should be answered in favour of the Petitioner and there must be opportunity of cross examination to the party seeking such relief.

12. Now coming to the question on the entertainability of the impugned order on the premises of non-supply of report of the District Panchayat Officer being called for by the Collector and as framed at question no.1, this Court observes, once a report has been called for from the competent authority required to be taken into account in the consideration process, there should be supply of such report to the parties in contest for their response by way of written submission or by way of argument even, failure of which there is serious lacking in compliance of natural justice. This question is accordingly answered in favour of the Petitioner again.

13. On the question of mere perusal of record and just minting of perusal of the same, this Court keeping in view the question no.3 and going through the impugned order finds, the competent authority has simply recorded "perusal of report and records". On entire reading of the observation at page 20 of the brief, this Court nowhere finds any discussion on any of such report or record being produced by both sides.

// 12 //

In the process this issue is also answered in favour of the Petitioner. This Court here finds, the Collector followed a procedure unknown to field of law and adjudication particularly involving such serious issue. This Court finds, mere indication of perusal of documents and record does not satisfy the requirement in consideration of such serious issue and the question no.3 is answered accordingly.

14. So far it relates to question no.4 on the aspect of not even touching the citations by the Petitioner herein, this Court finds, there is no dispute that Petitioner produced certified copy of very vital judgement, which clearly suits the claim of the Petitioner on the request for cross examination. There should have been serious attachment to such judgment and taken note of in deciding the dispute. Question no.4 is accordingly answered in favour of the Petitioner herein. This Court finds, impugned order is not sustainable in the eye of law.

15. In the above circumstance, this Court interfering in the impugned order dated 2.02.2023 in G.P. Appeal No.2 of 2022 at Annexure-1 sets aside the same and remits the matter to the Collector, Subarnapur for fresh disposal keeping in view the discussions and observations made hereinabove. This Court accordingly directs both the parties to appear before the Collector, Subarnapur along with a certified copy of this judgment on 20th February, 2023 and on their appearance the Collector, Subarnapur shall do well in providing copy of the report of the District Panchayat Officer to both the parties for their objection, if any. The Collector, Subarnapur shall do well in involving both the parties for cross examination of the Anganwari worker Smt. Susama Behera on the date to be fixed before undertaking the argument exercise and the Collector, Subarnapur shall also make endeavor to conclude the fresh hearing and

// 13 //

deliver the judgment by giving proper reasons therein within a period of three weeks from the date of communication of this judgment. It is at this stage of the matter, keeping in view the request of Mr. Mohanty, learned counsel for undertaking of further exercise from within the material/documents available, this Court observes, there shall be no entertaining of any further document and the decision process shall also not involve observation and findings, if any, already given in the impugned disposal.

16. For setting aside of impugned order at Annexure-1, this Court while directing for restoration of position of the Petitioner as Sarpanch also directs, till finalization of proceeding before the Collector, there should be discharge of financial responsibility jointly by the Sarpanch and the Naib Sarpanch.

17. Writ Petition succeeds. There is, however, no order as to costs.

18. Finding that there is invariably causal approach in such proceedings, this Court in an attempt to avoid such difficulties in future, directs, let a copy of this judgment be supplied to Mr. Ghose, learned Addl. Govt. Adv. to forward the same to the Secretary, Panchayati Raj Department for circulation of the same to all the Collectors exercising of power U/s.26 of the Odisha Grama Panchayat Act.

...............................

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 13rd day of February, 2023// Ayaskanta Jena, Senior Stenographer