Dismissed

Bapuji Sahoo v. Sunanda Sahoo

Orissa HC14 Oct 2019WP(C)/19912/2018

Case brief

AI extract

What is this about?

The Supreme Court dismissed a writ petition challenging an election tribunal's order rejecting an election petition filed five months after the election result. The Court held that the delay was inordinate and not explained by the wrong advice provided by the advocate, making the condonation of delay untenable to maintain the sanctity of the election process.

What did the court decide?

Writ petition dismissed for no infirmity in the impugned order. Election petition not maintainable due to inordinate unexplained delay.

Bapuji Sahoo Vs Sunanda Sahoo — Election Law | Orissa HC (2019)

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W.P.(C) NO. 19912 OF 2018

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4 14.10.2019

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Heard Sri K.K.Jena, learned counsel for the

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petitioner.

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2. This writ petition involves a challenge to the order dated 10.10.2018 at Annexure-8 passed by the Senior Civil Judge, Nayagarh in Election Petition No.7 of 2017 thereby rejecting the application for condonation of delay accompanied the Election Petition.

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3. Short background involving the case is that the petitioner is the elected Panchayat Samiti Member from Tendabadi Grama Panchayat. O.P.1 is the elected Panchayat Samiti Member from Similisahi Grama Panchayat under Daspalla Panchayat Samiti. After election of the Membership is over, Notification was issued for direct election for the post of Chairman of the Panchayat Samiti, Daspalla to be held on 11.3.2017. The petitioner as well as O.P.1 both filed their respective nominations being the candidates for the post of Chairman, Daspalla Panchayat Samiti. Election was held on 11.3.2017. Counting being conducted, O.P.1 was declared elected on 11.3.2017 itself. On 20.3.2017 a petition was filed by the petitioner praying therein for re-counting of ballot papers before the Chief Election Commissioner, Odisha. The Chief Election Commissioner forwarded the said application to the Collector, Nayagarh to enquire into the matter and take needful action. The Collector similarly forwarded the matter to the D.P.O., Nayagarh for taking necessary action. No action being taken by the Collector as well as the D.P.O., Nayagarh for about four months, the petitioner approached this Court in W.P.(C) No.14299 of 2017 following an advice of Sri Birendra Nath Nayak, Advocate. Considering that the

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result involving election was declared long since and the dispute could not be resolved through writ petition, this writ petition was disposed of on 24.7.2017 thereby observing that the petitioner had the only scope to remedy out his dispute through an election dispute. As a consequence and depending upon the observation of this Court, the petitioner claimed to raise an election dispute under Section 44(B) of the Orissa Panchayat Samiti Act, 1959 bearing Election Petition No.7 of 2017 in the Court of Senior Civil Judge, Nayagarh, ten days after receipt of copy of the order involving W.P.(C) No.14299 of 2017. For delay in filing the election dispute attributed on account of the petitioner’s wrongly proceeding in a writ petition, the petitioner also filed an application for condonation of delay, which application was heard after appearance of the opposite parties and entering into hearing by final order and entering into the evidence by order dated 10.10.2018, the Civil Judge (Sr.Divn.), Nayagarh rejected the delay condonation application thereby also rejected Election Petition No.7 of 2017 resulting the present writ petition.

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4. Sri K.K.Jena, learned counsel for the petitioner taking this Court to the sequences involved including the petitioner’s complaining in the matter of re-counting to the Chief Election Commissioner referring the matter to the Collector for taking appropriate decision and the Collector again referring the matter to the D.P.O., Nayagarh for taking appropriate action at his end and subsequently for the inaction of the Chief Election Commissioner, the Collector and the D.P.O., Nayagarh, the petitioner on wrong advice of Sri Birendra Nath Nayak, Advocate moving a writ petition to

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this Court and the date of disposal of the writ petition being 24.7.2017, contended that Election Petition No.7 of 2017 having been filed on 19.8.2017, the delay, if any, filing the election dispute was not only for the wrong advice of the Advocate but occasion for filing election dispute arose only after the observation of this Court in disposal of W.P.(C) No.14299 of 2017. Sri Jena further taking this Court to the evidence of the Advocate and the evidence of the petitioner involving the limitation petition contended that the allegation of the petitioner that the delay in filing the election dispute reasoned for the wrong advice of the Advocate has not only been substantiated by his own evidence but also being substantiated for the evidence of the Advocate itself. Sri Jena, learned counsel for the petitioner further taking this Court to the decisions in State of Orissa & another vrs. Govind Chaudhury : AIR 1972 ORISSA 76, Manoharan vrs. Sivarajan & others : (2014) SCC 163, Collector, Land Acquisition, Anantnag & another vrs. Mst. Katiji & others : AIR 1987 SC 1353, Mohinder Singh (dead) through legal representatives vrs. Paramjit Singh & others : 2018(5) SCC 698 & Smt. Aditi Das vrs. Sri Seshadev Das : 2019(I) OLR-476 contended that for the law of the land supporting the case of the petitioner with sufficient evidence, there appears, there is wrong consideration of the application for condonation of delay by the court requiring interference by this Court in the same. 5. Involvement of an election dispute at hand, the reason of delay appearing from the application, advanced with argument and for the rejection of the limitation petition by the Election Tribunal, this Court taking up the hearing on

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the question of admission finds, when the case involves an election dispute under the provision of the Orissa Panchayat Samiti Act, 1959, the provision at Section 44-B reads as follows :-

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“44-B. Presentation of petitions -(1) The petition shall be presented on one or more of the grounds specified in Section 44-L before the [Civil Judge (Senior Division)] having jurisdiction over the place at which the office of the Samiti is situated] together with a deposit of [two hundred rupees] as security for costs within fifteen days after the day on which the result of the election was announced.

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Provided that if the office of the [Civil Judge (Senior Division)] is closed on the last day of the period of limitation as aforesaid the petition may be presented on the next day on which such office is open;

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Provided further that if the petitioner satisfies the [Civil Judge (Senior Division)] that sufficient cause existed for the failure to present the petition within the period aforesaid the [Civil Judge (Senior Division)] may in his discretion condone such failure :

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Provided also that in cases where the result of the election was announced prior to the 26^th day of January 1961, the aforesaid period of limitation shall be computed from the said date.”

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The provision reflected herein above makes it clear that the election petition under the Orissa Panchayat Samiti Act, 1959 is required to be filed within fifteen days, after the date of which the result of election was announced but however with a rider permitting the election petition to be filed even after fifteen days but however with sufficient cause for failure to present such petition within the aforesaid period. Therefore, there is no doubt that the application for

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condonation can be entertained but however a party is required to satisfy that there exists sufficient cause. This Court again makes it clear that though the provision provides a discretion with the Election Tribunal to condone the delay but however such discretion has to be exercised subject to the election petitioner satisfying that there existed sufficient cause. Admittedly, the result of the election involved herein was declared on 11.3.2017 and the election dispute was filed on 19.8.2017. Therefore, there appears, there is almost more than five months delay in filing the election case. 6. This Court now requires to find as to whether there was sufficient reason to file the election dispute with five months delay ? and whether the decisions cited by the petitioner has any application to the case at hand resultantly requiring a decision on the impugned order ?

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Coming to record the factual aspect involving the case involved the election was declared on 11.3.2017 and on the advice of Sri Birendra Nath Nayak, Advocate, on 20.3.2017 the grievance petition was filed before the Chief Election Commission requesting therein for re-counting, which petition was forwarded to the Collector of the District on 21.3.2017. On the very same day, the Collector forwarded the petition to the D.P.O., Nayagarh. The party after waiting for almost four months approached this Court in W.P.(C) No.14299 of 2017 seeking direction to the competent authority to dispose of the grievance petition of the petitioner. This writ petition was dismissed with observation that for the election involving grievance petition and the result of the election having been declared, the petitioner had only option to raise election dispute. It is trite to indicate here that this

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Court in disposal of W.P.(C) No.14299 of 2017 passed the following :-

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“Heard learned counsel for the parties.

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Since the petitioner has a statutory remedy of Election Dispute, this writ petition cannot be entertained at this stage.

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Accordingly, this writ petition stands dismissed.”

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From the above order of this Court, it is found that the writ petition was not entertained for the petitioner having a remedy of election dispute. Reading the direction coupled with the prayer involving the writ petition, this Court again observes, the prayer in the writ petition was for a direction to the competent authority for a decision on the grievance petition at his instance. But however, there is direction permitting to file the election dispute on condonation of delay, if any.

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7. Now at this stage, taking into consideration the plea of the petitioner involving the delay in filing of the election dispute on 19.11.2017, this Court finds, the petitioner’s sole plea is that he was moving under different forums under wrong advice of the Advocate. The petitioner also deposed on the same premises claiming as foundation to condone the delay. The Advocate named herein above also appeared in the matter and deposed, in paragraphs-2 to 5 as follows :-

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“2. That, I had advised to Sr Bapuji Sahoo, Son of Late Haribandhu Sahoo of Village: Sakni, P.O,-Poibadi, P.S.-Daspalla, Dist: Nayagarh regarding the matter of Election of Chairman, Daspala Panchayat Samiti.

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That, it is understood from the briefing

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that the facts of this matter involves wrongful consideration of invalid votes to valid votes and declaring a tie by the Election Officer for which he has not been elected as Chairman.

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That, in the above context I had advised him to submit an application stating the above grievance to the Chief Election Officer, Bhubaneswar requesting to direct the Election Officer to recount the votes and declare him as the elected Chairman, if no action will be taken by the authorities.

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That, he should file writ petition before the honourable High Court praying for a direction to the authorities to dispose the matter within a stipulated time, accordingly I had drafted the application to submit the Chief Election Commissioner, Bhubaneswar and the Collector, District Magistrate, Nayagarh, i.e., on 20.03.2017.”

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From the above, it surfaces that the Advocate involved had advised the petitioner to lodge a grievance petition and also to file a writ petition seeking direction to dispose of the grievance petition within stipulated time. The evidence of the Advocate does not disclose any admission by him for giving wrong advice or no advice for filing of election dispute. Therefore, the allegation of the petitioner that he was wrongly advised by the Advocate, which delayed in filing the election dispute, could not be corroborated. Further looking to the legal provision involving filing of the election dispute under Section 44(B) of the Orissa Panchayat Samiti Act to avoid delay in undertaking the election dispute exercise the Legislature consciously prescribed fifteen days time for filing the election dispute, however with a rider to condone the delay in filing the election dispute beyond fifteen days does not mean that an election dispute can be filed beyond

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unreasonable delay. This being an election dispute and for there being no reasonable explanation, as explained herein above, and further as discussed by the trial court, this Court being satisfied that there being no reasonable explanation in filing the election dispute with such delay confirms the view of the Election tribunal in rejecting the limitation petition.

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8. The petitioner submitted a grievance petition. The grievance petition was kept pending before some authority resultantly the petitioner moved this Court in filing a writ petition. This Court dismissing the writ petition, as not maintainable, for the petitioner having scope of an election dispute, remedy does not permit the petitioner to file election dispute thereafter. Election dispute filed thereafter, however, subject to law of limitation and merit. For the statutory restriction, this Court finds, there is no reasonable explanation involving delay in filing the election dispute requiring the election dispute not entertainable.

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9. All the decisions referred to herein above were placed during hearing of the matter by the learned counsel for the petitioner and from the facts involving all the decisions referred to above, it appears, none of the decisions involves election dispute where the mandate of law is that there cannot be casual approach in the matter of condonation of delay involving the election dispute, as there should not be any attempt to interfere in the election dispute. This Court finds, in the meantime, more than two years and seven months have already passed after the election is over. 10. This Court here takes note of the decision of this Court in Maharagu Naik vrs. Civil Judge (Sr.Divn.)-cumElection Commissioner, Boudh & others : 2006(Supp.-I)

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OLR 908 where this Court has observed that gravity of the allegation on merit of the case is not relevant to constitute sufficient cause to condone delay. The delay can only be condoned subject to reasonable explanation of delay. Further law is well settled holding there cannot be casual approach to election disputes.

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So far as the election dispute is concerned, five months delay in filing the election to the opinion of this Court is involving inordinate delay, further in the meantime also more than two years of the term meant for the post already lapsed. Condonation of delay after half of the period involved will be amounting to no sanctity involving Section 44(B) of the Orissa Panchayat Samiti Act, 1959 and further affecting a settled situation for over two years and again involving an election dispute.

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11. In the circumstance, this Court while finding no infirmity in the impugned order dismisses the writ petition for having no substance.

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………………………… Biswanath Rath, J.

Bapuji Sahoo v. Sunanda Sahoo

Case brief

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Bapuji Sahoo v. Sunanda Sahoo

Case brief

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