ORISSA HIGH COURT: CUTTACK REVIEW PETITION NO. 102 OF 2009 In the matter of an application under Order 47 Rule 1, C.P.C. for review of the order dated 11.12.2008 passed in W.P.(C). No.920 of 2008. ------------- Smt. Lili Behera @ Mani Ghos … Petitioner. -Versus- Premalata Mallick & others … Opp. Parties. For Petitioner : M/s. P.K. Nanda, P.K.Deo, K.K. Jena & P.K.Dash For Opp. Parties : None ---------------- P R E S E N T: THE HONOURABLE MR. JUSTICE A.S. NAIDU AND THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Heard on 14.05.2010 & Disposed of on 18.05.2010 B.N.MAHAPATRA, J. This Review petition has been filed by the petitioner with a prayer to review the judgment dated 23.03.2009 passed in Writ Appeal No.23 of 2009 and to dispose of the Writ Appeal in the light of Rule 47 of Orissa Grama Panchayat Election Rules, 1965. 2. Mr. Pitambar Acharya, learned Counsel appearing on behalf of the Review Petitioner submitted that the Election Proceedings under challenge are guided by the Orissa Grama Panchayats Act, 1964 and the Orissa Grama Panchayat Election Rules, 1965. This Court disposed of the Writ Appeal considering some of the provisions of the Orissa Panchayat Samiti (Election) Rules, 1991 instead of Rule 47 of the Orissa Grama Panchayats Election Rules, 1965 on the question of rejection of ballot papers. 3 Before going into the submission of Mr.Acharya, it is apt to know the background fact of the case. The Review-petitioner and others were contesting the election for the post of Sarapanch of Serapur Grama Panchayat under Bari block. Election was held on 17.02.2009 and the present review- petitioner was declared elected on 22.07.2000 by a margin of 65 votes. The opposite party-respondent No.1 filed election petition mainly on two grounds; (i) the petitioner-appellant did not belong to Schedule Caste though the seat was reserved for the Scheduled Caste candidate, and (ii) hundred false ballot papers having no seal and signature of the Presiding Officer were used in Booth Nos. 5 and 8. The election petition was contested by the review-petitioner, and on closing of the evidence, an application was filed by respondent No.1 for segregating and accounting one hundred false votes in Booth Nos. 5 and 8 on the ground that one hundred ballot papers did not bear any distinction mark and signature of the Presiding Officer. According to opposite party No.6, this fact was within the knowledge of the Election Officer and the same materially affected the result of the election. The said application was rejected by the Election Tribunal vide order dated 08.01.2008 on the ground that no 2 prima facie case had been made out warranting any order for inspection and recounting of ballot papers in Booth Nos. 5 and 8. The election petition was filed to cause a roving and fishing inquiry through the Court to establish her case, which was not permissible in law. It was not disclosed as to how the use of false ballot papers without seal and signature of the Presiding Officer had materially affected the result of the election and in whose favour those votes had gone. Being dissatisfied with the said order, the election-petitioner (respondent No.1) filed a writ petition in W.P.(C) No. 920 of 2008 before this Court. This Court on 11.12.2008 allowed the said writ petition with directions for segregation, inspection and counting of all the votes of Booth Nos.5 and 8 and, if any ballot papers were found to be invalid as per Rule 47(e) of Orissa Grama Panchayat Election Rules, the same shall be excluded from counting. Against the said judgment/order dated 11.12.2008 of the learned Single Judge, Writ Appeal No.23 of 2009 was filed. 4. When the 1st issue as to whether or not the return candidate is a Scheduled Caste candidate was yet to be decided by the Election Tribunal, this Court only decided the 2nd issue, i.e, regarding recounting of one hundred false votes. While deciding the 2nd issue, this Court exhaustively dealt with the matter taking into consideration the averments made in the election petition dated 20.06.2007, the complaint dated 22.02.2007 filed before the Election Officer, Bari made by O.P. No.1, and the endorsement of the Election Officer on such complaint 3 petition, the evidence of O.P. No.1 given in her examination in chief and cross-examination, the findings of the Election Tribunal and ratio desidendi of large number of decisions of the Hon’ble Supreme Court as well as this Court and some of the provisions contained in Orissa Panchayat Sammittee Rules, 1991 and held that the learned Single Judge ought to have directed inspection and scrutiny of only 100 votes which allegedly did not bear stamp and should not have directed recounting of all the votes of Booth Nos. 5 and 8, as such a course had permitted the election-petitioner to have a fishing inquiry to support his contention in election petition which is not permissible in law. With the above observation, the writ appeal was partly allowed and the judgment of the learned Single Judge was modified to the extent that the Election Tribunal shall segregate the votes of booth No.5 which did not contain the stamp on the backside of the ballot papers and, after excluding them from counting, shall proceed in accordance with law. It was further clarified that if the Tribunal has taken any proceeding during the pendency of the appeal, it would be examined in the light of the observation made in the said judgment. 5. The only ground on which this review petition has been filed is that this Court has wrongly relied upon the provisions of the Orissa Panchayat Sammittee Rules relating to rejection of ballot papers. According to the review petitioner, the issue relating to rejection of ballot 4 papers should have been considered in the light of the provisions of the Rule 47 of the Orissa Grama Panchayats Election Rules, 1995. 6. Perusal of the relevant provision of Orissa Grama Panchayats Election Rules, 1965 and the Orissa Panchayat Samittee (Election) Rules, 1991 dealing with the ground on which the ballot papers can be rejected, this Court does not find any material difference in the provisions of both the Rules. For better appreciation, the relevant provisions of both the rules are reproduced as under: Rule- 47 of Orissa Grama Panchayats Election Rules, 1965 “… Each ballot-paper shall be carefully scrutinized by the Presiding Officer in the course of counting and a ballot-paper shall be liable to rejection on one or more of the following grounds, namely: (a) If it bears any mark or writing by which the voter can be identified; (b) If no vote is recorded thereon; (c) If votes are recorded in favour of more than one candidate; (d) If the mark indicating the votes is placed in such a manner so as to make it doubtful as to which candidate the votes has been given; (e) If the ballot-paper is spurious; (f) If it so damaged or mutilated that its genuineness cannot be established; (g) If it is of a design different from the one authorized for use at the polling station; (h) If it does not bear the seal and signature of the Presiding Officer.” Rule 30 of the Orissa Panchayat Samittee Rules, “Rule 30. Procedure for counting of votes- (1) xxx xxx xxx xxx (2) Each vote cast by the voters shall be scrutinized by the Presiding Officer in the course of counting and 5 a vote shall be invalid for counting on one or more of the following grounds, namely: (i) If it bears any mark or writing by which the voter can be identified; (ii) If it does not bear the mark specified under Rule 18; (iii) If votes are recorded in favour of more than one candidate; (iv) If the mark indicating the vote is placed in such a manner so as to make it doubtful as to the candidates in whose favour the same has cast; (v) If the ballot paper is spurious; (vi) If the ballot paper is so damaged or mutilated that its genuineness cannot be established; (vii) If the ballot paper does not bear the authentication mark of the Presiding officer as specified by Sub-rue (3) OF Rule 15.” A plain reading of the above two rules reveals that both the provisions in essence are pari meteria and there could not have been any material difference if the provisions of the Grama Panchayat Election Rules would have been quoted and examined in the impugned judgment. 7. Moreover, this Court in paragraph 27 of the impugned judgment clarified that the Single Judge ought to have directed scrutiny and inspection of hundred votes which allegedly did not bear the stamp instead of directing recounting of all the votes of booth Nos. 5 and 8. In paragraph 29, it was further held that the appeal is partly allowed and the impugned judgment and order of learned Single Judge is modified to the extent that the Election Tribunal shall segregate votes of booth No. 5 which did not contain the stamp on the backside of the ballot papers. Thus, this Court virtually upheld the finding of the learned Single Judge except modifying the same to the extent that instead of all the votes only 6 hundred votes which allegedly did not bear the stamp shall be segregated for the purpose of inspection. Learned Single Judge had directed for scrutiny, inspection and recounting of all the ballot papers of Booth Nos. 5 and 8 to find out if they were invalid as per Rule 47(e) of the Orissa Grama Panchayat Samittee (Election) Rules. A similar provision is also there in Rule 30 of the Panchayat Samittee Election Rules which has been considered in the judgment sought to be reviewed. Rule 47 (e) of the Orissa Grama Panchayat (Election) Rules, speaks of ballot paper which is spurious is liable to be rejected. Sub-Rule (2)(v) of Rule 30 of the Panchayat Samitee Rules also speaks of ballot which is spurious is liable to be rejected. The phraseology used in Rule 47(e) of the Orissa Grama Panchayat (Election) Rules and Rule 30(2)(v) of the Panchayat Samitee Rules are identical, i.e., “if the ballot paper is spurious”. Hence, quoting of the provisions of the Orissa Panchayat Samittee (Election) Rules at all makes no difference. 8. Even otherwise the Review Petition is not maintainable. In this context, it may be relevant to refer to Section 114 read with Order 47, Rule 1, C.P.C. and some of the decisions of the apex Court. Section 114 read with Order 47, Rule 1, C.P.C. prescribes the limitations for entertaining a review petition. The limitations are that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence, which was 7 not within his knowledge or could not have been produced by him at the time when the decree or order was passed, or on account of some mistake or error apparent on the face of the record, or ‘for any other sufficient reason’. The aforesaid limitations are prescribed in a crystal clear language. The expression ‘any other sufficient reason’ contained in Order 47, Rule 1, means ‘sufficient reason’ which is analogous to those specified immediately to it in the provision of Order 47, Rule 1, C.P.C. In Chhajju Ram Vs. Neki & Ors., AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of a new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground. In Delhi Administration Vs. Gurdip Singh Uban & Ors., AIR 2000 SC 3737, the Hon’ble apex Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bypass the procedure prescribed for hearing a review application. In Subhash Vs. State of Maharashtra & Anr., AIR 2002 SC 2573, the apex Court emphasized that Court should not be misguided and should not lightly entertain the review application unless 8 there are circumstances fallen within the prescribed limits that the Courts and Tribunal should not proceed to reexamine the matter as if it was an original application before it for the reason that it cannot be a scope of review. In the garb of review, a party cannot be permitted to reopen the case and to gain a full-fledged innings for making submissions, nor review lies merely on the ground that may be possible for the Court to take a view contrary to what had been taken earlier. If a case has been decided after full consideration of the arguments made by a counsel, he cannot be permitted even in the garb of doing justice or substantial justice to engage the Court again to decide the controversy already decided. If a party is aggrieved by a judgment, it must approach the higher Court but entertaining a review to reconsider the case would amount to exceeding its jurisdiction conferred under the limited jurisdiction for the purpose of review. The apex Court in Rajender Kumar V. Rambhai, AIR 2003 SC 2095, held that the limitations on exercise of the power of review are well settled. The first and foremost requirement for entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of it and permitting the order to stand will lead to failure of justice. In the absence of any such error, finally attached to the judgment/order cannot be disturbed. 9 The Hon’ble Supreme Court in M/s Jain Studios Ltd. Vs. Shin Satellite Public Co. Ltd., AIR 2006 SC 2686, held that the power of review cannot be confused with appellate powers which enable a superior Court to correct all errors committed by a subordinate Court. It is not rehearing an original matter. A review of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection only in exceptional cases. 9. In the above facts situation, no case for review under Order 47, Rule 1, C.P.C. is made out. The well-known parameters of review, as indicated above, having not been fulfilled, there is no scope for review. The Review petition is accordingly dismissed. ……………………... B.N.Mahapatra, J. A.S. Naidu, J . I agree …....…………….. A.S.Naidu, J. 10 Orissa High Court, Cuttack 18th May, 2010/sss/skj/pcp