The Orissa High Court dismissed a writ petition challenging an appellate judgment that declared the petitioner's election as Sarpanch void. The Court upheld the finding that the petitioner could not discharge Sarpanch duties under the Orissa Grama Panchayat Act, 1964 as she failed to prove the ability to read and write Oriya correctly.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
ORISSA HIGH COURT: CUTTACK
W.P. (C) No.15815 of 2013
In the matter of an application under Articles 226 and 227 of the Constitution of India.
--------------Manorama Sahu …… Petitioner -versusKona Rajeswari Reddy and others …… Opp. parties
For Petitioner : M/s. Jagannath Patnaik, (Senior Advocate), B.Mohanty, T.K.Patnaik & S.Patnaik. For Opposite parties : M/s. Ms. Deepali Mohapatra, Sandeep Parida & P.N.Patra. (for O.P.1) Mr.L.Samantaray (Addl. Standing Counsel)
----------- ------------------------------- Date of Judgment:13.01.2017 ----------- -------------------------------
P R E S E N T:
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
------------------------------------------------------------------------------------- Biswajit Mohanty, J. The petitioner has filed the present writ
application to set aside the impugned judgment dated 6.7.2013
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passed by the learned District Judge, Ganjam-Berhampur in Election Appeal No.01 of 2012 by issuing appropriate writ/writs in the nature of writ of certiorari. She has also prayed for cost.
2. The facts of the case are as follows:
3. The petitioner and opp. party No.1 contested election for the post of Sarpanch of Indrakhi Grama panchayat which was held on 13.02.2012. In the said election, the petitioner was elected as Sarpanch. Challenging the same, opp. party No.1 filed Election Petition No.01 of 2012 before the court of learned Civil Judge (Junior Division), Berhampur on very many grounds. One of the grounds was that the petitioner was unable to read and write Odia as she is required to do under Sub-section (b) of Section 11 of the Orissa Grama Panchayat Act, 1964 (for short, „the Act‟). Opp. party No.1 also took a stand that on the date, nominations were scrutinised, she filed an objection beore the Returning Officer to reject the nomination of petitioner as she was unable to read and write Odia properly and correctly. The Returning Officer dictated a sentence to the petitioner but she could not write the sentence correctly. Inspite of that, the Returning Officer accepted her nomination. In that Election Petition, the petitioner filed counter denying the allegations relating to she being not able to read and write Odia. Further she took a specific stand that she has passed Class-VII in Nilakantheswar Bidyapitha and thus she is an educated lady and she is having the knowledge of reading and writing.
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4. Opp. parties 2 and 3 also filed their counter. In the said counter, opp. parties 2 and 3 took the stand that the Election Officer dictated the Odia sentence to the petitioner, and, accordingly, the petitioner wrote correct dictated sentence. Copy of the written dictated statement along with views of Election Officer dated 13.01.2012 was stated to be enclosed as Annexure-1 to their counter.
5. The learned trial court on the basis of the rival pleadings of the parties framed as many as six issues. The opp. party No.1 examined herself as P.W.1 and one G.Janakiamma Reddy was examined from her side as P.W.2. From the side of opp. party No.1, some documents were exhibited. From the side of the petitioner, she examined herself as D.W.1 and exhibited two certified copies of the judgments passed in an earlier Election Petition and Election Appeal. Opp. parties 2 and 3 despite filing their counter as indicated above, did not examine any witnesses from their side to prove their stand as well as the document dated 13.01.2012 (Annexure-1). A perusal of L.C.R. nowhere shows about filing of Annexure-1 dated 13.01.2012. During crossexamination of petitioner, the opp. party No.1 sought permission to make petitioner read and write Odia. The petitioner without any objection, read a portion (Ext.1/a) of Odia Daily, „the Samaj‟ dated 2.7.2012 (Ext.1). Similarly, as per dictation of counsel for opp. party No.1, the petitioner wrote Odia version of Section 2 (O) of „the Act‟ containing the definition of “@^òÁKe” . While the Odia version of the
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definition has been marked as Ext.2, the writing of the petitioner has been marked as Ext.2/a.
6. On conclusion of trial, the learned trial court came to a finding that the reading and writing ability of the petitioner was not cent percent correct but was manageable. The learned trial court also on analysis of materials on record/evidence, answered the other issues against opp. party No.1, and, accordingly dismissed the Election Petition. Challenging the same, opp.party No.1 filed Election Appeal No.01 of 2012 before the learned District Judge, Ganjam-Berhampur. Before the learned District Judge, the opp. party No.1 as a whole concentrated on the finding of the learned trial Court on Issue No.3 and did not press the other points as regard use of money and muscle power in the election as alleged by her and the activity alleged to be carred out in connivance with Polling Officer. There, the opp. party No.1 mainly relied on the decisions of this Court in the cases of Damburu Majhi v. Tarini Charan Majhi reported in 2006 (II) CLR, 705 and Mrs.Suryakanti Mishra v. State of Orissa and seven others reported in 2005 (Supp.) OLR 906. The petitioner defended the findings of the learned trial court and relied on a decision of this Court in the case of Usha Sahoo v. Ambika Sahoo and another reported in 2011 (II) CLR 80/2011 (I) OLR 499. On considering the submissions of both the opp. party No.1 and petitioner, the learned District Judge vide judgment dated 6.7.2013 allowed the appeal on contest and declared the election of petitioner as Sarpanch of
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Indrakhi Grama Panchayat as null and void and further declared the opp. party No.1 elected as Sarpanch of the said Grama Panchayat mainly on the ground that in the background of available evidence, the learned trial court went wrong in coming to a conclusion that the petitioner was able to write Odia. Challenging the same the presenet writ application has been filed with the earlier indicated prayers.
7. Heard learned counsel for the petitioner, Ms.Deepali Mohapatra, learned counsel for opp. party No.1 and Mr. L.Samantaray, learned Standing Cousnel for the State.
8. Learned counsel for the petitioner attacked the judgment dated 6.7.2013 passed in Election Appeal No.01 of 2012 on the ground that the judgment of the appellate court under Annexure-4 has been passed on a perverse reasoning, particularly when, the opp. party No.1 in her own evidence during cross-examination has admitted that when the petitioner was asked to write in Odia, she complied with the same. Therefore, the finding arrived at by the learned appellate court that the petitioner was not able to write Odia was a perverse one. Secondly, learned counsel for the petitioner submitted that the discussions made and reasoning given by the learned appellate court on the issue of ability to write Odia as prescribed under Sub-section (b) of Section 11 of „the Act‟ runs contrary to well settled principles as per the judgments pronounced by this Court in Kalabati Jena v. Dhaneswar Jena and others reported in 2009 (Supp-2) OLR 344, Labangalata Mallick v. Mandakini Mallick , reported in 2010
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(Supp-1) OLR 73 and Usha Sahoo v. Ambika Sahoo and another as reported in 2011 (I) OLR 499, particlarly when the Act and Rules made thereunder do not specifically prescribed any standard for writing Odia. Therefore, the appellate court went wrong in introducing the minimum standard with regard to writing Odia.
9. Per contra, Ms. Mohapatra, learned counsel for opp. party No.1 defended the impugned judgment of learned District Judge and submitted that in the cross-examination, the opp. party No.1 has also stated that writing of the petitioner, which contained a number of mistakes was underlined and was kept in the custody of Election Officer concerned. This is the reason why opp. party Nos. 2 and 3 though referred to such writing in their counter never took steps to prove their stand nor did they produce and prove the said piece of writing supported to be enclosed as Annexure-1. On account of this adverse inference ought to be drawn. She also submitted that before the learned trial court, the petitioner never took a positive stand either in the pleading or in her evidence that she knew writing Odia. She further submitted that the decisions cited by the petitioner are distinguishable and further those are Single Judge decisions have not taken into account the earlier Division Bench decision in the case of Damburu Majhi (supra). Thus, the said decisions are per incuriam judgments. She also relied on Division Bench decision in the case of Mrs.Suryakanti Mishra (supra) and also on a decision in the case of ( Smt.) Binata Samal v. (Smt.) Chanchala Samala and another
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reported in 2016 (1) CLR 1070. She further submitted that though the petitioner took a stand that she has passed Class-VII from Nilakantheswar Bidyapitha, however, she could not produce any documentary evidence in support of the same and the same has been admitted by the petitioner in her cross-examination. Ms. Mohapatra also submitted that the petitioner never objected to the dictation she took under Ext.2/a and her writing does not show any punctuation mark in appropriate places in the background of definition which was dictated from Ext.2 and a perusal of Ext.2/a would show that the petitioner has written words like “ ùK÷Yiò”, “aòfù_û”, “@«bêq”, “Rùgâ^òA¦òâd”, “LâûùY¦òâd” which do not convey any meaning in Odia. She also submitted that the learned District Judge was right in making an observation that the writing under Ext.2/a has been done with difficulty. She also argued that a Sarpanch has to perform various duties as required under Section 19 of „the Act‟. Such duties/functions include a duty to execute the documents relating to contracts on behalf of the Grama Sasan and to cause to be prepared all statements and reports required by or under „the Act‟ and in such background, the way the petitioner wrote, it cannot be said that the petitioner was able to write Odia correctly and properly as in the minimum „to write‟ means to write properly/correctly. Ms. Mohapatra submitted that the petitioner herself had admitted at Para-9 of her cross-examination that it is a fact that on the date of filing of nomination and scrutiny, she was not able to read and write Odia.
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Thus, she submitted that the learned District Judge has correctly observed that the ability to write Odia means ability to write correctly so that writing gives out meaning. Here, since many words written by the petitioner do not convey any meaning, it cannot be said that the impugned judgment is perverse.
10. Before discussing the rival contentions of the parties, this Court would like to remind everybody about the scope of writ of certiorari in the background of the prayer made in the writ petition. It is settled that the writ of certiorari is supervisory in nature and certiorari court cannot act as an appellate forum. Therefore, ordinarily a certiorari court does not review finding of facts reached by an inferior court or tribunal. It is equally well settled that even while exercising its jurisdiction under Article 227 of the Constituiton of India, the High Court can interfere with the matter only when the finding is perverse and if no reasonable person can come to the conclusion which has been reached by the learned court below. It is also well settled that the jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact unless there is no evidence to support such finding or the finding is perverse.
Secondly, we must also refer to the nature of duties of a Sarpanch, as delineated under „the Act‟. For this, we can profitably refer to Section 19 of „the Act‟. The same is quoted hereunder:
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“ 19. Powers, duties and functions of Sarpanch- (1) Save as otherwise expressly provided by or under this Act, the executive powers of the Grama Panchayat for the purpose of carrying out the provisions of this Act, shall be exercised by the Sarpanch, who shall act under the authority of the said Grama Panchayat.
(2) Without prejudice to the generality of the provisions of Sub-section (1) the Sarpanch shall, save as otherwise provided in this Act, or the rules made thereunder and subject to such general or special orders as may be issued from time to time by the State Government in that behalf-
(a) convene and preside over the meetings of the Grama Panchayat and conduct, regulate and be responsible for the proper maintenance of the records of the proceeding of the said meetings; (b) execute documents relating to contracts on behalf of the Grama Sasan;
(c) be responsible for the proper custody of all records and documents, all valuable securities and all properties and assets belonging to or vested in or under the direction, management or control of the Grama Sasan;
(d) be responsible for the proper working of Grama Panchayat as required by or under this Act;
(e) cause to be preapared all statements and reports required by or under this Act;
(f) exercise supervision and control over the acts and proceedings of all officers and employees of the Grama Panchayat; (g) be the authority to enter into correspondence on behalf of the Grama Panchayat; and
(h) exercise such other powers, discharge such other duties and perform such other functions as may be conferred or imposed on or assigned to him by or under this Act.”
The dispute in the present case mainly pertains to ability of the
petitioner to write Odia as required under Sub-section (b) of Section
11 of „the Act‟. The same is quoted hereunder:
11. Qualification for membership in the Grama Panchayat:- Notwithstandig anything in Section 10 no member of a Grama Sasan shall be eligible to stand for election-
(b) as a Sarpanch or Naib-Sarpanch, if he has not attained the age of tweny-one years or is unable to read and write Oriya;
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The writing of the petitioner is there at Ext.2/a, which has been quoted by the learned District Judge at para-9 of the impugned judgment. A perusal of the same shows that atleast five words as submitted by Ms.Mohapatra which have been quoted earlier, convey no meaning at all in Odia. Thus, even the ordinary words have been wrongly written and this clearly reflects on the ability of the petitioner to write Oriya. The learned District Judge has correctly observed that the ability to write means the ability to write correctly so that the writing gives out a meaning and the same is conspicuously absent in this case. Further, a perusal of writing of the petitioner under Ext.2/a also makes it clear that such writing has been done with difficulty.
It is interesting to note here that in the counter filed before the learned trial court that though the petitioner denied the allegations relating to inability to write Odia, however, she never took a positive stand that she knew to write Odia. Only in her counter she has stated that she has the knowledge/ability of reading and writing. In her deposition also, she stated that “I am having the knowledge of reading and writing” but not that she knew reading and writing Odia. In such background, it cannot be said that the learned District Judge has committed any wrong or has returned a perverse finding while coming to a conclusion that the petitioner is not able to write Odia. Such a finding appears to be reasonable in the background of duties and functions which a Sarpanch is supposed to discharge under Section 19 of „the Act‟.
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11. Now, coming to submissions of learned counsel for the petitioner that when opp. party No.1 in her cross-examination has herself admitted that when the petitioner was asked to write in Odia and the petitioner complied with the same, therefore, the finding of the learned District Judge is perverse. Such a plea cannot be accepted because in her cross-examination, the opp. party No.1 at para-12 has also made it clear that in the writing of petitioner in Odia, which has been kept in the custody of the Election Officer, the mistakes committed by her (petitioner) were underlined by the Election Officer concerned. Therefore, merely because the petitioner wrote in Odia in whatever manner, it would not ipso facto show her ability to write Odia as required under Sub-section (b) of Section 11 of „the Act‟. Further, this piece of writing not having been produced/proved, one can reasonably infer that the officials of opp.party who had custody of such piece of writing suppressed the best piece of evidence, which would have enabled the court to apply its mind to the same. In any case the writing of the petitioner was before the appellate court by way of Ext.2/a and as indicated earlier since many words have been wrongly written and do not convey any sense and further since these writings appear to be a laboured one, the judgment of the learned District Judge cannot be termed as perverse.
With regard to three jugements cited by learned counsel for the petitioner, it remains a fact that these are all Single Bench cases and
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none of these cases refers to Damburu Majhi case (supra), a Division Bench case. There the petitioner had written down a paragraph in Court with difficulty committing several mistakes. The writing also carried no meaning. Accordingly, both the trial court and appellate court had held that the petitioner was not able to write Odia. This was upheld by this Court in Damburu Majhi case (supra).This decision has not been referred in the decisions of Kalabati Jena (supra) , Labangalata Mallick (supra) and Usha Sahoo (supra) which were all decided by a learned Single Judge of this Court. These judgments also do not refer to the nature of duties of a Sarpanch is required to be performed under Section 19 of „the Act‟.
To elaborate it, in Kalabati Jena case (supra), there has been no reference to two earlier Division Bench decisions of the Court as rendered in Mrs. Suryakanti Mishra case (supra) and Damburu Majhi case (supra). Kalabati Jena case (supra) lays down that only interpretation of the phrase “read and write Odia” can be that a candidate should not be illiterate and should at least know how to read and how to write Odia to a standard as would be required for a person to function as a Sarpanch. However, such an interpretation has been given without reference to the Division Bench decision of this Court in Mrs. Suryakanti Mishra case (supra) wherein the phrase “read and write Odia” has been interpreted to mean that the person/candidate must have the capacity to read and write Odia alphabets as well as “Yuktakhyaras”, i.e., the alphabets made on
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combination of vowels and consonants and without reference to Section 19 of „the Act‟. This being the position, this Court feels itself pursuaded to follow the dictum of the decision rendered by the Division Bench in Mrs. Suryakanti Mishra case (supra) and holds that in the background of requirement of Section 19 of „the Act‟, “read and write Odia” must mean something more in tune with the dictum of Mrs. Suryakanti Mishra (supra) so as to enable a Sarpanch to discharge his/her duties properly under Section 19 of „the Act‟. In such background, where the petitioner wrote without any objection and where such writing is a laboured one with a number of mistakes, conveying no meaning, the learned appellate court has committed no wrong in passing the impugned judgment. After all, very purpose of writing is to communicate certain things. If the writing fails to communicate the intention of the writer, it is rendered useless.
So far as Labangalata case (supra) is concerned, which is a Single Judge case, it neither refers to the Dambaru Majhi case (supra) or to Section 19 of „the Act‟. Though it refers to Mrs. Suryakanti Mishra case (supra), but while distinguishing the same, it has forgotten the dictum of Mr.Suryakanti Mishra case (supra) that a person/candidate must have the capacity to read and write Odia alphabets as well as “Yuktakhyaras”. Further though Labangalata case (supra), quotes extensively from Kalabati Jena case (supra), however, there exists no discussion on Section 19 of „the Act‟. This being the position, this Court feels pursuaded to follow the dictum of
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decisions as rendered by two Division Benchs of this Court in Mrs. Suryakanti Mishra case (supra) and Damburu Majhi case (supra) in the background of requirement of Section 19 of „the Act‟ in preference to Single Bench decision as rendered in Labangalata Case (supra).
With regard to Usha Sahoo case (supra), it would be suffice to say that the said case is factually distinguishable as this Court at Para-8 of the judgment has indicated that the petitioner therein had written correct sentence in Odia that too in a good handwriting. But here that is not the case. Further in the said case, there is also no discussion on Section 19 of „the Act‟.
12. So, the three decisions cited by the learned counsel for the petitioner are of no help in the present case. Rather, the latest decision of this Court reported in (Smt.) Binata Samal (supra) also goes against the stand of the petitioner wherein it has been laid down that to be able to read and write a language, a person must have elementary ordinary knowledge of letters, orthography, syntax and punctuation. In that case, the learned Single Judge has also pointed out that we come across many people who are able to read, but they are not able to write. Writing is difficult because the same involves reproduction of letters, words which make a sense/demonstrate the sense. In that case, on facts, this Court came to a conclusion that neither the words nor the sentences written by the petitioner made any sense. In such background, the prayer of the petitioner was dismissed. Here, as indicated earlier, many words written by the
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petitioner at Ext.2/a do not make any sense and a Sarpanch who is supposed to discharge multifarious duties under Section 19 of „the Act‟, in the background of such writing cannot be said to have the ability to write Odia.
13. In such background, this Court does not find any error apparent on the face of the impugned judgment, and, accordingly, the writ application is without any merit and the same stands dismissed. No cost.
…………………………… Biswajit Mohanty, J.
Orissa High Court, Cuttack The 13th January, 2017/bns
3 issues framed by the court
Whether the petitioner satisfies the requirement of being able to read and write Oriya under Section 11(b) of the Orissa Grama Panchayat Act, 1964 to contest election for Sarpanch.
Whether the finding of the District Judge that the petitioner could not write Oriya correctly given the duties of a Sarpanch under Section 19 is perverse.
Whether Single Judge decisions cited by the petitioner correctly interpret the 'read and write' requirement compared to Division Bench precedents.
Colour shows how this judgement treated each authority
Damburu Majhi v. Tarini Charan MajhiFollowed¶54
Damburu Majhi v. Tarini Charan Majhi
Usha Sahoo v. Ambika SahooDistinguished¶62
Usha Sahoo v. Ambika Sahoo
Kalabati Jena v. Dhaneswar JenaDistinguished¶55
Kalabati Jena v. Dhaneswar Jena
Mrs. Suryakanti Mishra v. State of OrissaRelied on¶56
Mrs. Suryakanti Mishra v. State of Orissa
Labangalata Mallick v. Mandakini MallickDistinguished¶55
Labangalata Mallick v. Mandakini Mallick
(Smt.) Binata Samal v. (Smt.) Chanchala SamalaRelied on¶63
(Smt.) Binata Samal v. (Smt.) Chanchala Samala
2 provisions across 1 enactments
Manorama Sahu
Kona Rajeswari Reddy
Biswajit Mohanty
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
