ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 19200 OF 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Banajosna Barik …… Petitioner -Versus- Smt. Prafulla Biswal and others …… Opp. Parties For Petitioner: M/s. P.K.Sahoo, A.C.Mohapatra & A.K.Panda. For Opp. Parties: M/s. Mahadev Mishra, C.Mallick and Mamata Mishra. (for O.P.No.1). ----------------------- Date of judgment- 02.09.2010 ------------------------ P R E S E N T : THE HONOURABLE SHRI JUSTICE M.M. DAS ----------------------------------------------------------------------------------------------- M. M. DAS, J. The petitioner and the opp. party no. 1 filed their nominations to contest the election to the office of Sarpanch of Chahapara Grama Panchayat. The nomination papers were scrutinized on 16.1.2007. At the time of scrutiny, the opp. party no. 1 challenged the validity of the nomination of the petitioner on the ground that she had more than two children and her two of her children were born after the cut-ff date and, therefore, she was disqualified under section 25 (1) (v) of the Orissa Grama Panchayat Act, 1964 (for short, ‘the Act’) to contest the election to the office of Sarpanch. The petitioner resisted the said objection on the ground that she had no third child and that the alleged third child Priyanka Priyadarshini was the daughter of Saroj and Tilottama, Saroj being the elder brother of the husband of the petitioner. The nomination paper of the petitioner was accepted and in the election held on 17.2.2007, the petitioner was declared elected having polled the highest number of votes. The opp. party no. 1, thereafter, filed an election dispute, being Election Case No. 2 of 2007, to declare the election of the petitioner void and further to declare her to be the elected Sarpanch. The opp. party no. 1 also filed a Civil Suit seeking a relief of declaration that the order dated 8.5.2006 passed in Misc. Case No. 29 of 2006 under section 13 (3) of Births and Deaths Registration Act by the court of the Executive Magistrate, Mahanga as well as the entry at serial no. 573 dated 9.5.2006 of the Register of Birth and Death maintained at U.G., C.H.C. Mahanga based upon the said order as illegal and to declare that Priyanka Priyadarshini is the natural born daughter of the petitioner and her husband Manoj @ Anoj Kumar Barik. The said Civil Suit was numbered as C.S. No. 33 of 2007. 2 2. Both the aforesaid proceedings were filed before the learned Civil Judge (Junior Division), Salepur, Cuttack. The petitioner appeared in both the said cases and filed her written statements denying the allegations made in the election petition as well as in the plaint. The petitioner’s case before the courts below was that she has got only one daughter, namely, Pragyan Pridarshini and one son, namely, Dibyaranjan Barik. Priyanka Priyadarshini is the natural daughter of one Saroj Kumar Barik and his wife Tilottama Barik. Hence, there was no reason to reject the nomination paper of the petitioner. Her nomination paper being valid and she having polled highest number of valid votes, was rightly declared elected as the Sarpanch. The learned Civil Judge (Jr. Division), Salepur-cum-Election Tribunal clubbed the Election Case N. 2 of 2007 and the Civil Suit together recording one set of evidence and disposed of both the said proceedings by a common judgment dated 12.9.2008. Common issues were framed in both the proceedings. The learned Civil Judge came to a finding of fact that Priyanka Priyadarshini is not the daughter of Sarojbandhu and Tillottama and, on the contrary, she is the daughter of the petitioner and her husband Anoja @ Manoj Kumar Barik. He also came to a finding of fact that the petitioner’s second and third child were born after the cut-off date and, hence, the 3 petitioner was disqualified from being elected as Sarpanch as per section 25 (1) (v) of the Act. Accordingly, the learned trial court decreed the Civil Suit declaring that the said daughter Priyanka Priyadarshini, who was the defendant no.5 in the suit to be the natural born daughter of the defendant no.3 (petitioner) and her husband – defendant no. 4 and further declared that the order dated 8.5.2006 passed in Misc. Case No. 29 of 2006 by the Executive Magistrate, Mahanga is void and illegal having no legal sanctity and so also serial no. 573 dated 9.5.2006 in the register maintained at U.G. C.H.C. Mahanga. 3. In the election petition, the learned trial court declared that the election of the present petitioner as Sarpanch is illegal and void and since the election petitioner was the only contesting candidate, declared the election petitioner as the returned candidate. The petitioner preferred two independent appeals against the said common judgment before the learned District Judge, Cuttack, being Election Appeal No. 31 of 2008 and R.F.A. No. 116 of 2008. The learned District Judge though rightly held that the scope of the two proceedings were different and as such, hearing of both the said proceedings together, was contrary to law, but while awaiting hearing of the R.F.A. took up the election appeal for hearing and disposed of the 4 same by judgment dated 18.12.2008. The learned District Judge in appeal came to the conclusion that the Election Tribunal was right in concluding that Priyanka Priyadarshini was the daughter of the appellant and not of Saroj and Tilottama. The third child of the petitioner (appellant before the court below) was born during 2003 and, therefore, she was clearly disqualified from taking part in the Panchayat election. Consequently, the appellate court confirmed the finding of the Election Tribunal declaring the election of the petitioner void. However, with regard to the second limb of the order of the Election Tribunal declaring the opp. party no. 1 to be the elected Sarpanch, the learned appellate court referring to section 40 of the Act, reversed the said finding and directed holding of a fresh election to fill up the vacancy of the office of Sarpanch. Being aggrieved, the petitioner has preferred this writ petition, being W.P. (C) No. 19200 of 2008. The opp. party no. 1, however, has preferred, W.P.(C) No. 585 of 2009 challenging the portion of the order of the learned appellate court by which the order declaring the opp. party no. 1 as the elected Sarpanch of the Grama Panchayat by the Election Tribunal was reversed. 4. It is, therefore, seen that the moot question, which was to be determined in the election petition, was as to whether the said Priyanka Priyadarshini is the daughter of the 5 petitioner and her husband Manoj born after the cut-off date or was the daughter of Saroj, the elder brother of the husband of the petitioner and his wife Tilottama. If it would have been found that the said Priyanka Priyadarshini is not the daughter of the petitioner, then the question as to whether she was born after the cut-off date or not, would have become redundant. 5. Whenever there is a dispute with regard to status of a person and/or his/her relationship with any of the parties in a civil proceeding, such status or relationship can be declared by the competent civil court in a properly constituted suit. The opp. party no. 1 has filed such a suit being Civil Suit No. 33 of 2008, inter alia, making a prayer to declare the order dated 8.5.2006 passed in Misc. Case No. 29 of 2006 under section 13(3) of the Births and death Registration Act by the Executive Magistrate, Mahanga to be illegal and consequently to declare the entry at serial no. 573 dated 9.5.2006 of the Registration of Births and Deaths maintained at U.G., C.H.C. Mahanga is also illegal and further to declare that Priyanka Priyadarshini is the natural born daughter of Manoj @ Anoj and Banajosna Barik (petitioner). 6. In an election dispute raised under section 31 of the Act, the powers and jurisdiction of the Civil Judge (Junior Division) can be exercised as provided under section 37 of the 6 Act. Section 37 of the Act prescribes that the Civil Judge (Jr. Division) shall have the power, which is vested in a court under the Code of Civil Procedure when trying a suit in respect of the matters enumerated thereunder only. Section 38 of the Act provides that after making such enquiry as he deems necessary, the Civil Judge (Jr. Division) if finds that the person whose election is called in question was valid, he shall dismiss the petition as against such person and may award cost at his discretion. If he finds that election of any person was invalid, he shall either declare a casual vacancy to have been created or declare another candidate to have been duly elected which ever course appears in the circumstances of the case to be more appropriate and in either case, may award cost at his discretion. The aforementioned provisions of the Act with regard to trial of an election petition within its four corners do not bestow jurisdiction on the Civil Judge (Jr. Division) for the purpose of the Act as the Election Tribunal, to declare the status of a person or declare the relationship between two persons. The said Civil Judge (Jr. Division) in the capacity of a Civil Judge in a properly constituted suit does have such jurisdiction. 7. The question, therefore, which is to be addressed in the facts of the present case, is as to whether, when there is a 7 dispute with regard to the relationship raised in an election petition under the Act, the Civil Judge (Jr. Division) acting as the Election Tribunal can determine the said issue in order to find out as to whether the person whose election is challenged on the ground of disqualification earned under section 25 (1)(v) of the Act is disqualified. 8. Since such an issue is required to be determined for finding out the eligibility of the returned candidate to contest the election, this Court is of the view that such issue can be decided as an ancillary issue in the election proceeding, but will be subject to the decision in a properly constituted suit if filed. In the instant case, as the election petitioner herself filed a suit with the prayers as stated above, before the self-same Civil Judge, who was trying the election dispute as the Tribunal, it was incumbent upon the Civil Judge to take up the suit for trial first for deciding the issue with regard to the relationship which was under challenge. Simultaneously, the Civil Judge could not have exercised the jurisdiction of an Election Tribunal as well as the jurisdiction of a Civil Judge, as he has done by trying the election petition and the civil suit together. The learned appellate court was, therefore, right in holding that the suit and the election petition could not have been tried together. However, the learned appellate court also fell in to the same 8 error by taking up the appeal in the election dispute first, before deciding the appeal preferred against the judgment and decree passed in the civil suit. 9. Since the judgment in the election petition as well as the decree passed in the suit was passed by the learned Civil Judge (Jr. Division) by a common judgment in both the suit and the election petition, the same is ex facie illegal. The appellate court, therefore, should have immediately remitted the matter back to the Civil Judge (Jr. Division) with the direction to try the suit separately before taking up the election dispute, as it is seen that if the civil suit after trial would have been dismissed, the election petition would have also suffered from the same fate. In the alternative, if the suit would have been decreed, the said judgment would have operated as a res judicata against the opp. party no. 1 and her election could have automatically declared to be void. 10. However, it appears that during pendency of this writ petition, the opp. party no. 1 has filed a petition by way of a Misc. Case for modification of the order dated 10.2.2009 and order dated 14.1.2009 passed in this writ petition, in the interim, directing that any action taken in the meanwhile shall be subject to the final result of the writ petition which was clarified by order dated 10.2.2010 to the extent that no stay 9 order has been granted. In the said Misc. Case, the opp. party no. 1 has stated that during pendency of the writ petition by judgment dated 16.2.2009, the RFA No. 116 of 2008 filed against the portion of the common judgment decreeing the suit, has been disposed of by the learned District Judge . The copy of the judgment passed in the RFA has also been annexed to the Misc. Case from which it is revealed that the opp. party no. 1, who was the plaintiff in the suit, filed a petition before the trial court on 27.8.2007 for withdrawal of the suit. But the said petition was never taken up by the trial court and the suit was disposed of by the common judgment. Considering such petition for withdrawal, the appellate court in the RFA holding that the plaintiff has absolute right to withdraw her suit unless she seeks liberty to file a fresh suit and finding that the plaintiff wanted to withdraw the suit without seeking such liberty held that the trial court was duty bound to allow withdrawal of the suit. Before the trial court, the plaintiff (opp. party no. 1 ) also filed a memo on 21.7.2008 stating that she does not want to adduce any evidence in the suit. A similar memo was filed before the appellate court for which the appellate court holding that there was absolutely no material on record to enable the trial court to give a finding on the subject-matter of controversy, came to the conclusion that the suit was not maintainable and 10 set aside the judgment in the suit recording that the appeal succeeds. In view of the fact that the suit was sought to be withdrawn, the appellate court instead of holding that the appeal succeeds and is allowed, should have held that the suit stands withdrawn. 11. Considering such development, it has become imperative on the part of this Court to only examine the legality of the judgment passed in the election dispute which is confirmed in appeal by modifying the order of the Election Tribunal to the extent that a fresh election is to be held and the opp. party no. 1 cannot be declared as elected. 12. In view of the findings of fact arrived at by both the courts below with regard to the question that the writ petitioner was disqualified to be elected as Sarpanch, this being a writ of certiorari and this Court finding no perversity or illegality in the orders impugned with regard to the above finding desists from interfering with the same. But the judgment of the appellate court in Election Appeal No. 31 of 2008 with regard to the order of reversing the judgment of the Election Tribunal in respect of declaration of the petitioner as the elected Sarpanch, the same will be subject to the judgment in W.P.(C) No. 585 of 2009 which has been filed by the opp. party no.1. 11 13. The writ petition is accordingly disposed of. ………………………. M. M. Das, J. Orissa High Court, Cuttack September 2nd, 2010/Biswal. 12 13