ORISSA HIGH COURT : CUTTACK R.S.A. No.162 OF 201.From a judgment and decree dated 31.3.2011 passed by Shri A.K. Acharya, learned District Judge, Kalahandi-Nuapada at Bhawanipatna in RFA No.47 of 2010 (Election) confirming the judgment and decree dated 8.11.2010 passed by Shri Harihara Biswal, learned Civil Judge (Senior Division), Bhawanipatna in C.S. No.13 of 2010. -----------Ram Kumar Jain …… Appellant -versusRamakanta Gouda and another For Appellant : For Respondents : …… Respondents M/s. M.Mishra, Mrs. M.Mishra, B.K.Mishra, S.B. Mohanty, G.C. Bhuyan & J.Panda. M/s. U.K.Samal, C.D. Sahu, M.R.Mohapatra, S.P. Patra & S.Naik. (For respondent no.1) M/s. B.B.Mohanty and B. P. Acharya. (For respondent no.2) -----------------Decided on 12 .07.2013 ------------------PRESENT: THE HONOURABLE MR. JUSTICE M. M. DAS -------------------------------------------------------------------------------------M.M. DAS, J.This Second Appeal has been preferred against the judgment dated 31.3.2011 passed in RFA No.47 of 2010 (Election) by the learned District Judge, Kalahandi-Nuapada at Bhawanipatna 2 confirming the judgment and decree passed in Civil Suit No.13 of 2010 by the learned Civil Judge (Senior Division), Bhawanipatna .
2. The appellant was the defendant No.1 in the aforesaid suit. He got elected as a Councillor from a general seat to the Kesinga NAC. Similarly, the respondent No.1 also got elected as a Councillor from another Ward of the said NAC. The election for the post of Chairperson of Kesinga NAC was scheduled to be held on 30.9.2008. The appellant and the respondent No.1 filed their nominations to contest for the post of Chairperson which was reserved for SEBC/OBC community candidate. The appellant filed a caste certificate to show that he belongs to such community/category. Admittedly, the respondent No.1 belongs to such category. The election was held on the scheduled date and both the candidates got equal number of votes, i.e., six each for which there was drawal of lottery and the appellant was declared as elected to the post of Chairperson of the Kesinga NAC.
3. The respondent No.1 filed an election dispute purportedly under section 18 read with section 21 of the Orissa Municipal Act, 1950 (for short, the Act’) before the learned District Judge, Kalahandi, who is the designated Tribunal to decide the election dispute under section 18 of the Act. The appellant filed an application before the learned District Judge /Tribunal challenging the jurisdiction of the said Tribunal to try the election dispute. The 3 said application being rejected, the appellant approached this Court in W.P. (C) No.11555 of 2009. This Court exhaustively dealing with the question in detail with reference to Article 243-ZG of the Constitution of India, sections 18 and 21 as well as section 57 of the Act, held that the election petition was No.maintainable before the learned District Judge/Tribunal under section 18 of the Act. While holding thus and allowing the writ petition, this Court in its judgment dated 20.10.2009 came to the following conclusions:“8. The fact situation that arises for consideration in the present case is distinctly different while Sections 18 and 21 of the Act does provide the forum for challenge of an election of a ‘Councillor”. to a Municipal Body, these provisions do No.cover a challenge to the election of ‘ a Chairperson’ of such Municipal Body, and, therefore, the same is covered by Section 57 of the Act. Therefore, for challenge to the election of ‘Chairperson’, an aggrieved party may move the Civil Court. Since both sections 18 and 57 of the Act have been provided for by the State Legislature in the Municipal Act itself, the constitutional embargo imposed by Article 243-ZG, has been duly complied by the Legislature.
9. On consideration of the submissions made as noted hereinabove, we are of the clear view that it is well settled proposition of law that no person can be left remedy-less. Therefore, while the State Legislature by enacting Sections 18 and 21 of the Orissa Municipal Act, 1950 as provided for the Forum to challenge of the election of a Councillor, i.e., District Judge/Election Tribunal, yet, though no specific forum has been provided for under the Act, challenge to the election of a ‘Chairperson’ may take place under Section 57 of the Act by initiating civil suits, questioning the election of office bearer of a Municipality including that of a Chairperson, even while the selfsame statute, i.e., the Municipal Act restricts the jurisdiction of such Civil Court from passing temporary injunction or interim orders restraining such elected persons from exercising the powers or performing functions or duties as Chairperson or Officer of such Municipality.
10. In the light of what has been noted hereinabove, while giving a purposive interpretation to the provisions of 4 the Act vis-à-vis the constitutional embargo provided under Article 243-ZG, we are of the considered view that the Election Petition filed by the opposite party no.1 seeking to challenge the writ petitioner’s election as ‘Chairperson’ to Kesinga N.A.C., by way of filing the election petition under Section 18 of the Act, is No.maintainable and beyond the jurisdiction of the Election Tribunal. Accordingly, we set aside the order of the learned District Judge, KalahandiNuapada at Bhawanipatna dated 29.7.2009 and hold that Election Petition No.13 of 2008 pending before the District Judge, Kalahandi-Nuapada at Bhawanipatna is No.maintainable and beyond its jurisdiction. Before parting, we may observe that it shall be open for the opposite Party No.1 (Election Petitioner), if so advised, to file an appropriate declaratory suit before the competent Civil Court having jurisdiction over the matter and if the opposite party files such a suit before a Civil Court of competent jurisdiction, such court shall do well to deal with the matter expeditiously and take steps to dispose of the matter within a period of six months from the date of filing of such civil suit in accordance with law and without being influenced in any manner by any of the observations made herein”.. About three months thereafter, the respondent No.1 filed the Civil Suit, being C.S. No.13 of 2010 before the learned Civil Judge (Senior Division), Bhawanipatna in the nature of a declaratory suit, inter alia, alleging that the appellant-defendant No.1 in the suit does No.belong to SEBC/OBC community and the caste certificate produced by him is a fraudulent one and, thus, he could No.have contested the election for the post of Chairperson of the NAC, which was reserved for SEBC/OBC community.
4. Written statement was filed by the appellant - defendant No.1 traversing the allegations made in the plaint and on the pleadings of the parties, the learned trial court tried the suit by framing seven issues. The appellant while defending the suit pleaded 5 that he belongs to SEBC/OBC community and thus, he is legally elected Chairperson of the NAC. The vital defence taken by him is that the suit was barred by limitation in respect of which issue No.3 was settled by the learned trial court. Answering the said issue, the learned trial court came to the conclusion that the limitation prescribed for filing an election dispute under section 18 of the Act will No.be applicable to a suit for declaration for which the Limitation Act prescribes the period of three years. Therefore, the learned trial court held that the suit is No.barred by law of limitation. On considering the pleadings and submissions along with the evidence adduced, the learned trial court came to a finding of fact that proper procedure was No.followed while granting the Caste certificate to the appellant and the appellant, who was defendant No.1 did No.approach the Tahasildar with clean hands for obtaining the impugned Caste certificate. He further held that such Caste certificate has been issued by the Tahasildar by a casual approach without ascertaining the real position as to whether the appellant belongs to SEBC/OBC community or not. No-doubt, while discussing the material produced before it, the learned trial court has also concluded that the income of the appellant was more than Rs. 2.50 lakhs per annum for which even if accepted that he belongs to SEBC/OBC community, it can be safely held that he belongs to “creamy layer”.. However, from the materials produced, the learned 6 trial court categorically came to the finding that the appellantdefendant No.1 substantially failed to prove before the authority granting the Caste certificate as well as before the learned trial court that he actually belongs to SEBC/OBC community being a person belonging to caste “Jain Trapans”..
5. The learned lower appellate court again discussing the issue as to whether the appellant belongs to SEBC/OBC community, in detail, confirmed the findings of the learned trial court and dismissed the appeal preferred by the appellant.
6. Though this Second Appeal was admitted on several questions, but after hearing the learned counsel for the respective parties, this Court finds that the questions that arise to be determined as substantial questions of law are as to whether the limitation prescribed under section 19 of the Act, i.e., 15 days for filing an election dispute under section 18 of the Act, would be applicable to a civil suit of the nature filed by the respondent no.1 from which this appeal arises to declare the Caste certificate obtained by the appellant to be invalid and inoperative in law along with a declaration that the election of the appellant on the basis of such Caste certificate is also illegal. The other question which has been raised is as to whether the learned court below was correct in decreeing the suit filed by the respondent No.1 on the ground that the appellant belongs to the “Creamy layer”.”
7. It is an admitted position that the seat of Chairperson in Kesinga NAC was reserved for candidates belonging to SEBC/OBC community. The findings of the learned courts below that the appellant does No.belong to such community/category being a finding of fact on proper appreciation of evidence and no error of record in that regard having been shown to have been committed by the learned courts below, such finding of fact canNo.be interfered with in a Second Appeal filed under section 100 C.P.C.
8. In view of the above position, though the question with regard to limitation becomes academic, but, however, this Court finds that the limitation prescribed under section 19 of the Act, i.e., 15 days to file an election dispute under section 18 of the Act from the date the result of the election was declared, canNo.be made applicable to a civil suit claiming declaratory relief as the said period of 15 days prescribed in section 19 of the Act is strictly with reference to an election dispute to be filed under section 18 of the Act challenging the election of a Councillor. It has been already held by this Court in the writ petition filed by the appellant that the election to the post of Chairperson canNo.be disputed in an election dispute filed under section 18 of the Act and liberty was granted to the respondent No.1 to file a properly constituted Civil Suit (see the order passed in the writ petition quoted above)”
9. In view of the above, this Court also finds that both the learned courts below were right in holding that the suit was No.barred by law of limitation as it is a suit for declaration which is to be filed within three years from the date of cause of action as per the Limitation Act.
10. In the result, therefore, this Court finds no merit in the Second Appeal, which is accordingly dismissed, but, in the circumstances, there shall be no order as to cost of this appeal. ……………………… M. M. DAS, J.Orissa High Court, Cuttack. July 12th ,2013/Biswal. 9