Allowed

Kuntala Mallik v. Bharati Behera

Orissa HC14 Aug 2024WP(C)/7580/2024

Case brief

AI extract

What is this about?

The High Court of Orissa allowed the petition challenging the disqualification of an elected Sarpanch under the Odisha Gram Panchayat Act. The Court held that the standard used by lower courts to test reading and writing ability was erroneous and set aside the impugned orders, restoring the petitioner to office.

What did the court decide?

The impugned orders of the trial and appellate courts were set aside, and the Petitioner was restored to the Office of Sarpanch.

Kuntala Mallik Vs Bharati Behera — Election Law | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 16-Aug-2024 16:40:27

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.7580 of 2024

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(In the matter of an application under Articles 226 and 227 of the Constitution of India)

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Kuntala Mallik …. Petitioner

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-versus-

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Smt. Bharati Behera …. Opposite Party

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Advocate(s) appeared in this case:-

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For Petitioner : Mr. A.P. Bose, Advocate For Opposite Parties : Mr. S.K. Mishra, Senior Advocate

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CORAM: JUSTICE B.P. ROUTRAY

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JUDGMENT 14^th August 2024

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B.P. Routray, J.

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1. Heard Mr. A.P. Bose on behalf of Mr. P.K. Satapathy, learned Advocate for the Petitioner and Mr. S.K. Mishra, learned Senior Advocate for the Opposite Party.

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2. Present Petitioner is the elected candidate for the Office of Sarpanch of Bayangdihi Gram Panchayat under Dhamnagar Block in the district of Bhadrak. She won the election with a huge margin of votes, securing 2281 votes.

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3. The defeated candidate, who is the present Opposite Party, filed Election Misc. Case No.01 of 2022 in the court of learned Civil Judge (Jr. Divn.), Dhamnagar challenging the election of the Petitioner on the

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W.P.(C) No.7580 of 2024

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Page 1 of 5

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 16-Aug-2024 16:40:27

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ground that, she does not know how to read and write Odia. Learned trial judge upon adjudication allowed the election petition by declaring the election of the Petitioner as void and disqualified the Petitioner for not able to read and write Odia as required under Section 11(b) of the Odisha Gram Panchayat Act, 1964 (in short, “the OGP Act”). The Petitioner challenged said judgment of learned Civil Judge (Jr. Divn.), Dhamnagar in appeal, i.e. FAO No.87 of 2023 before the learned District Judge, Bhadrak. Learned District Judge, Bhadrak in the impugned judgment dated 13.03.2024 has confirmed the order of learned Civil Judge disqualifying the Petitioner from the Office of Sarpanch. Both the orders of the learned trial judge as well as the appellate court are questioned by the Petitioner in the present writ petition.

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4. The short point falls for determination in the present writ petition that, whether the Petitioner is able to read and write Odia as per the prescription under Section 11(b) of the OGP Act ?

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5. Section 11(b) of the OGP Act stipulates that, no member of Grama Sasan shall be eligible to stand for election if he is unable to read and write Odia. At the same time, neither OGP Act, 1964 nor Odisha Gram Panchayat Election Rules, 1965 do prescribe any standard or modality for testing the ability for reading and writing.

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6. This Court in Usha Sahoo vs. Ambika Sahoo and another, 2011 (1) OLR – 499 have held as follows:-

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“6. This Court in the case of Labangalata Mallick -v-Mandakini Mallick and others, 2010 (Supp.-I) OLR 73 dealing with a similar question relied upon the decision in the case of Kalabati Jena –v-

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W.P.(C) No.7580 of 2024 Page 2 of 5

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 16-Aug-2024 16:40:27

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Dhaneswar Jena, 2009 (Supp.–II) OLR 334 distinguishing the judgment passed by the Division Bench in the case of M/s. Mrs. Suryakanti Mishra –v- State of Orissa and seven others, 2005 (Supp.) OLR 906 and laid down that no hard and fast rule can be prescribed for finding out as to whether a person who was a contestant in the Grama Panchayat election knows how to read and write Oriya or not. Such conclusion should be drawn from the analysis of facts of each case. No doubt, this Court while exercising jurisdiction under Article 226 of the Constitution for issuing a writ of certiorari is not to reappreciate the evidence on records, but, however, if it is found that the conclusion drawn by the authorities/courts below is based on surmises and conjectures, it can quash such order or orders.

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In the case of Kalabati Jena (supra) , this Court dealing with the phrase “Read and Write Oriya” held that the said phrase has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed thereunder. Keeping the legislative intent in view for introducing such a disqualification clause in case of Sarpanch and Naib Sarpanch inasmuch as to find out the object to be achieved by such introduction of the disqualification clause, this Court concluded that a person, who can to some extent, read and write Oriya, cannot be said to be unable to read and write Oriya. The standard of reading and writing Oriya having not been specifically provided in the Act and the Rules, the Court is precluded from introducing a minimum standard of a candidate with regard to reading and writing Oriya. In the circumstances of the present case, it can further be added that nowhere within the four corners of the Act or the Election Rules framed thereunder, it has been prescribed that in order to ascertain as to whether a person is able to write Oriya, such person, who has been elected by the majority of the voters, should be given dictation in court for writing it down and such writing to the dictation given should be taken as a test as to whether the said person knows how to write Oriya.

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In the instant case, this Court on perusing Ext.3 finds that the petitioner has written down a corrected sentence in Oriya and that 6 too in a good handwriting. As judicial notice can be taken that Oriya language contains various complicated conjoint letters in various words which even a qualified person may commit mistake in writing such type of words which are commonly known as “Yuktakhyaras”, dictating such words to a witness in court would definitely make the person skippy and unstable in the atmosphere of the court, to write it down such words correctly. This Court, therefore, finds that the approach of the learned lower appellate court was absolutely technical without keeping in view the above

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W.P.(C) No.7580 of 2024 Page 3 of 5

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 16-Aug-2024 16:40:27

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facts and without also keeping in mind that by his conclusion, a person elected by majority will be thrown out of his office, to which fact a court trying an election dispute, should not only be cautious but also have the acumen of showing its restraint.”

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7. In the instant case, learned trial court as well as the appellate court have relied on the test papers of the Petitioner under Exts.2, 3 and C-I to conclude that she is unable to read and write Odia properly. The Petitioner was brought to the witness box upon direction of the learned trial court to testify her ability to read and write Odia. She was asked to write “Mananiya Srijukta Gosthi Unnayana” on a paper (Ext.2), “Mu Bayangdihi Grama Panchayata ra Sarapanch Ate” (Ext.C-I). She was also asked to read from the book “Panchayat Sahayika Pustika” (Ext.5). According to the opinion of the learned trial court as well as the appellate court, the Petitioner was unable to write the sentences given to her during her cross-examination and she was even unable to read from the book under Ext.5. Thus both the courts concluded regarding inability of the Petitioner to read and write Odia.

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8. It is true that, this Court while exercising jurisdiction under Articles 226 & 227 of the Constitution of India cannot re-appreciate the evidences brought on record. But the question that falls here for determination is about fixation of standard of ability or parameter by the courts below in testing the capability of an elected Sarpanch to read and write Odia. As stated earlier, neither the Act nor the Rule does prescribe any specific standard for the same. The copies of Exts.2, 3, 5 and C-I have been produced in Court by Mr. Mishra in course of hearing. Perusal of the same reveals that, the Petitioner has ability to write her name in Odia and she is also able to write the word

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W.P.(C) No.7580 of 2024

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Page 4 of 5

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 16-Aug-2024 16:40:27

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‘Sarpanch’. Though this Court is not re-appreciating the evidence, but is of the opinion that the standard/parameter fixed by the trial court to write such sentences containing complicated Yuktakhyaras and punctuations cannot be the prescribed standard within the meaning of Section 11(b) of the OGP Act to conduct the test regarding ability to read and write Odia. The words and sentences written in the ‘Panchayat Sahayika Pustika’ under Ext.5 cannot be stated to be the basis for testing the reading ability of the candidate. The Petitioner is the elected candidate, who won the election by the support of the people with good margin over the Election Petitioner. Throwing out the elected candidate by such process in fixing the test standards regarding ability to read and write Odia as per the exhibits prepared by the learned trial court is not felt appropriate in the opinion of this Court. Thus this Court comes to the conclusion that, both the courts below have committed error apparent on record by fixing such specific standard of the elected candidate to test her ability to read and write Odia.

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9. Accordingly, the impugned order and judgment of the learned trial court and the appellate court under Annexures-2 & 1 are set aside and the Petitioner is restored to the Office of the Sarpanch, Bayangdihi Gram Panchayat.

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10. T he writ petition is disposed of as allowed.

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B.K. Barik/Secretary

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W.P.(C) No.7580 of 2024

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Kuntala Mallik v. Bharati Behera

Case brief

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Kuntala Mallik v. Bharati Behera

Case brief

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