Sri Saroj Kumar Mahapatra vs Karunakar Mallik
2023 Latest Caselaw 469 Ori

             ORISSA HIGH COURT : C U T T A C K

                       W.P.(C) No.36364 of 2022

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

Sri Saroj Kumar Mahapatra                          : Petitioner


                           -Versus-

Karunakar Mallik                                : Opposite Party

For Petitioner                               : M/s.D.Pr. Mohanty,
                                                   T.K. Mohanty,
                                                   P.K. Swain, M. Pal,
                                                   R. Mohanty
For Opposite Party                           : M/s. A.Pr. Bose,
                                                    D.J. Sahoo,
                                                    A. Pattnaik,
                                                    S. Swain, D. Sahoo,
                                                    D.K. Sethy


                                 JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 13.01.2023

1. Heard the submissions of learned counsel for respective parties.

2. This writ petition involves a challenge to the impugned order at Annexure-5 passed in Election Misc. Case No.2 of 2022 thereby allowing an application at the instance of the Election Petitioner U/o.6 Rule 17 of C.P.C. read with Section 151 of C.P.C.

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3. Challenge herein is at the instance of the return candidate. Taking this Court to the nature of amendment particularly the schedule of amendment at page 19 of the brief reading together with the provisions at Section 30 & 31 of the Odisha Gram Panchayat Act, 1964 hereinafter in short be called as "the Act, 1964" Mr. Mohanty, learned counsel for Petitioner submitted that once there is expiry of time for bringing in an election dispute, there should not be allowing of any application to bring in further pleadings. Taking this Court to the schedule of amendment at page 19 of the brief an attempt is also made to demonstrate that the attempt to bring in the amendment is opposed by the restriction in Section 31 of the Act, 1964. Mr. Mohanty, learned counsel for Petitioner taking reference of a judgment of this Court in the case of Ashok Kumar Gedi Vrs. Jyotrimayee Behera & Ors. as reported in 2022 (II) CLR 655 attempted to take support of the judgment indicated hereinabove to the case of the return candidate.

4. Mr. Bose, learned counsel for Opposite Party on the other hand relying on the very same judgment and in reference to the provision at Section 30 & 31 of the Act, 1964 attempted to support the impugned order. Mr. Bose, learned counsel for Opposite Party further taking this Court to the pleadings made in paragraph A at running page 11 of the brief also reading together with schedule of amendment submitted that even though there has been bringing in of the date of birth of Dipika Mahapatra in a different year, through the schedule of amendment there is an attempt to bring more clarity in the claim of the election Petitioner even bringing in the dates, month and year of birth of children involved therein. Mr. Bose, learned counsel for Opposite Party also takes reliance of the decision of this Court indicated hereinabove in his favour.

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5. Considering the rival contentions of the parties and looking to the pleadings made in this writ petition as well in paragraph A at page 11 of the brief and the controversies involved, this Court finds, the pleadings of the Election Petitioner in paragraph A reads as follows:-

"A. The opposite party is disqualified for membership of Gram Panchayat and even for filing his nomination according to the provisions made under Section - 25(1)(v) of the Orissa Gram Panchayat Act, since at the time of filing his nomination to contest for the post of Sarpanch of Manipur Gram Panchayat the opposite party has / had more than two children i.e. he is the father of his five daughters. Particularly, his first daughter namely Latika Mahapatra was born on 1984, his second daughter namely Lipika Mahaptra was born on 1988, his third daughter namely Dipika Mahaptra was born on 1992, his fourth daughter namely Alaka Mahapatra was born in the year of 1995 and his fifth daughter namely Monalisha Mahapatra took her birth in the year 1998. All such five daughters of the opposite party are alive. The opposite party by intentionally suppressing such facts submitted his nomination and contested in that election. The opposite party in fact in the eye of law was not qualified on the dat of said election to be a candidate and to contest for the post of Sarpanch of the Manipur Gram Panchayat. So the election of such returned candidate like the opposite party is completely void one and accordingly it needs necessary declaration by this Court in that respect as it is alleged as per the provisions made under Section - 39 of the Orissa Gram Panchayat Act and it is also further necessary to declare this petitioner to be the winning candidate in that election.

That, in compliance of the provisions of the Orissa Gram Panchayat Act read with its rules, the necessary security deposit for cost for a sum of Rs. 150/- has already been made by this petitioner and the necessary document in that respect has been attached herewith."

6. Coming to the schedule of amendment at page 19 of the brief this Court finds, the schedule of amendment reads as follows:-

" SCHEDULE OF AMENDMENT

In the petition filed by the petitioner under Section-31 of the G.P. Act, at the end of the sub-paragraph (A) of the paragraph - 3 the following words, figures and sentences may be added:

"As the information obtained by the petitioner from the authorities concerned later on; it is reported that out of the five daughters of the opposite party in this case as named above, the

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dae of birth of Latika Mohapatra is 12.06.1984, the date of birth of Monalisa Mohapatra is 10.02.1998, the date of birth of Dipika Mohapatra is 04.01.1994 and the date of birth of Alaka Mohapatra is 15.04.1995."

7. Reading both the pleadings hereinabove this Court finds, there is virtually mentioning of the year of birth of the children so far it relates to Latika Mahapatra and Lipika Mahapatra; but so far as the pleadings in paragraph A is concerned; it appears, while claiming that first daughter Latika Mahapatra was borne in 1984, the second daughter Lipika Mahapatra was born in 1988 and the third daughter namely Dipika Mahapatra was born in 1992, the 4th daughter Alaka Mahapatra was borne in 1995 and 5th daughter Monalisa Mahapatra was born in 1998, the election Petitioner in the schedule of amendment attempted to introduce the date of birth of Latika Mahapatra to be on 12.06.1984, Monalisa Mahapatra to be on 10.02.1998, Dipika Mahapatra being the 3rd child to be on 4.01.1994 and Alaka Mahapatra to be on 15.04.1995. This Court here finds, there is maintenance of the year of birth in respect of at least 3 children except in case of Dipika Mahapatra to be born in the year 1994 instead of born in the year 1992 and through the amendment in respect of Dipika Mahaptra the date of birth has been sought to be corrected as 4.01.1994.

8. Reading the schedule of amendment this Court finds, there is virtually no taking out the effect of statement and/or pleadings already there. It is, on the other hand, in further explanation there is an attempt to bring in the actual date of birth of such children.

It is, at this stage of the matter taking into consideration the claim and the counter of the respective parties on the law point, this Court form the decision in the case of Harish Chandra Bajpai Vs.. Triloki Singh as reported in AIR 1957 SC 454 finds, the Hon'ble apex Court therein has

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clearly held that power of amendment of a petition could not be exercised so as to permit new grounds to change the character of the petition to be shown alter so as to make it in substance of a new petition. For the discussions made hereinabove, this Court finds, there is a formal attempt through the amendment thereby not attempting to either bring new grounds of challenge or take out the character of the petition. On the other hand the amendment herein brings effective adjudication of the case. Further for the return candidate having the scope of additional written statement and cross-examination, if any, there is no serious prejudice to the Petitioner herein.

9. In the circumstance, this Court finds, attempt for amendment is not completely ruled out. This Court, therefore, while declining to interfere in the impugned order, dismisses the writ petition.

10. Both the parties are directed to bring copy of the judgment of this Court to the notice of the trial court on their appearance before the trial court on 17th January, 2023. Return candidate be permitted to bring his written statement at least within one week of appearance. Considering that the dispute is an Election dispute, the trial court is also directed to expedite trial of the proceeding and make an attempt to conclude the proceeding as expeditiously as possible preferably within a period of three months from the date of appearance of the parties.

11. The Writ Petition stands dismissed. No order as to costs.

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

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 13th day of January, 2023// Ayaskanta Jena, Senior Stenographer