P.K. Tripathy, J.
1. Both the writ petitions were heard for their disposal at the stage of admission because of availability of the L.C.R. (being called for). Though the election petitioners in each of the cases is different but on verbal request of the counsel for the petitioners and consent of the opposite party, argument was heard combinedly and this judgment shall abide the result in both the writ petitions, though dealt with separately.
2. Tara @ Rita Behera, wife of Dingar Behera was elected as a Member of Boudh Panchayat Samiti from Mundipadar Grama Panchayat Constituency. For the sake of convenience, hereinafter she is described as opposite party No. 1. Maharagu Naik was one of the contesting candidates from the said Grama Panchayat Constituency. After being defeated in the election he filed M.J.C. No. 13 of 2002 in the Court of Civil Judge (Sr. Division), Boudh under Section 45-A read with Section 45-B of the Orissa Panchayat Samiti Act, 1959 (in short 'the Act'). Opposite party No. 1 contested that case. Learned Civil Judge on 3.2.2003 delivered the judgment and decided that opposite party No. 1 was disqualified to contest and accordingly set aside her election as a Member of the Panchayat Samiti and directed for fresh election. As against that judgment, opposite party No. 1 preferred Election Appeal No. 3 of 2002. Learned Addl. District Judge, Boudh disposed of that appeal on 28.5.2003. The Appellate Court set aside the order of the Civil Judge and accordingly allowed the appeal. As against that, Maharagu Naik, petitioner in the first case, has filed W.P.(C) No. 6400 of 2003 challenging to the judgment of Learned Addl. District Judge, Boudh in Election Appeal No. 3 of 2002.
3. After being elected as Panchayat Samiti Member, opposite party No. 1 contested for the post of Chairman of Boudh Panchayat Samiti. Sumitra Mahanandia, another elected Panchayat Samiti Member from Padmanpur Samiti contested for the said post. There was no other candidate contesting for the post of Chairman. In that election opposite party No. 1 was declared elected having secured majority of the votes, thus, said Sumitra (petitioner in the second case), filed M.J.C. No. 14 of 2002 under Section 45-A read with Section 45-B of the Act. Learned Civil Judge (Sr. Division), Boudh, as per the judgment delivered on 3.2.2003, recorded finding that opposite party No. 1 was disqualified to be a Member of the Panchayat Samiti and, therefore, she was disqualified to contest for Chairman and accordingly set aside the election of opposite party No. 1. At the same time, Learned Civil Judge rejected the prayer of the petitioner in the second case to declare her elected on the ground that if opposite party No. 1 would have been debarred to contest, somebody else could have contested and apart from that the petitioner in the second case had secured only 4 out of 21 votes. Accordingly Learned Civil Judge directed for fresh election to the post of Chairman. Opposite party No. 1 challenged that judgment in Election Appeal No. 2 of 2003. Learned Addl. District Judge, Boudh on 28.5.2003 disposed of that appeal by setting aside the aforesaid judgment of Learned Civil Judge. Thus, petitioner in the second case has filed W.P.(C) No. 6399 of 2003.
4. It appears from the allegation in the election petition in both the Election Misc. Cases that almost similar grounds were taken against opposite party No. 1 while challenging to her election. One of such grounds is that by the date of nomination for the post of Member of the Panchayat Samiti, opposite party No. 1 was below 21 years of age inasmuch her date of birth in the school record is mentioned as 25.1.1982 and nomination paper was filed on 21.1.2002, scrutiny was made on 22.1.2002, election was held on 23.2.2002 and result was declared by the Collector on 2.3.2002. The second ground is that opposite party No. 1 was married to Dingar Behera on 11.3.2001 and therefore, by the date of filing of nomination paper she was not a voter under Mundhipadar Grama Panchayat Constituency or under Boudh Panchayat Samiti and to overcome that disqualification she impersonated as 'Rita', the wife of her husband's cousin. Those were the two principal grounds on which election of opposite party No. 1 was challenged both in M.J.C. Nos. 13 of 2002 and 14 of 2002. The first Misc. Case was suffering from delay of 18 days and second case was suffering from a delay of 13 days. In each of the cases election petitioners sought for condonation of delay.
5. Opposite party No. 1 filed her counter separately in both the cases but took similar pleas. She demitted that in the school records her date of birth has been recorded as 25.1.1982, but she explained that at the time of her admission in school the age was reduced by two years by her father and her real date of birth is 11.1.1980 and therefore she was above 21 years of age by the date of filing of nomination and election. She also demitted that her date of marriage was 11.3.2001 and explained that her real name is Rita as per the horoscope, but out of affection she was addressed in her paternal house as Tara. After her marriage she was called as Rita in her in-laws house and the entry in the voter list showing Rita is relating to her and not the wife of her husband's cousin Fakira and that the wife's name of said Fakira is Purnabasi and they are living in another village. In other words, she denied to the allegations of impersonating Rita, wife of Fakira and explained that her description as wife of Fakira (Rita, wife of Fakira) was a mis-description/wrong description of the husband's name of opposite party No. 1. She also challenged to maintainability of the Misc. Cases on the ground of limitation and opposed to the prayer for condonation of delay.
6. To prove her case, petitioner in the first case examined five witnesses including herself as P.W. No. 1 and relied on five documents out of which Exts. 1 to 3 are the certified copies of voter lists of Routabahal village respectively of the years 1996, 1999 and 2002, Ext. 4 is the voter list - part 121 for several villages including village Routabahal and Ext. 5 is copy of voter list of Mundipadar Grama Panchayat under Boudh Assembly Constituency for the year 2001. Opposite party No. 1 examined eight witnesses including herself as O.P.W. No. 1, Fakira Behera and Purnabasi as O.P.Ws. 2 and 3, her father as O.P.W. No. 6 and the Astrologer as O.P.W. No. 7 besides her husband's brother as O.P.W. No. 4. She also relied on six documents out of which Exts. D and E are the certified copy of voter lists for the year 2001 and 1995 for Bhaga No. 96. Exts. A and B are the Voter Identity Cards of O.P.Ws. 2 and 3 respectively. Ext. F is the horoscope prepared by O.P.W. No. 7 and Ext. C is the Caste certificate granted in the name of Rita Behera in R.M.C. No. 332 of 2002.
7. On analysis of evidence on record and examining the position of law, Learned Civil Judge found that the ground explained relating to illness is sufficient to condone the delay in filing the election petition. He found that the allegations made by the petitioner in the first case regarding age of opposite party No. 1 being below 21 years is proved because of contradictory and unreliable evidence adduced by the O.P.Ws. 1, 6 and 7. Learned Civil Judge also doubted genuineness of the horoscope on the ground that sketch-pen and dot-pen (ball pen) and thick papers were not used, in Eighties, for writing of horoscope. Learned Civil Judge examined the oral and documentary evidence on the issue as to whether opposite party No. 1's name was there in the voter list of 2001 and on making a comparative study of such documents he recorded the conclusion that opposite party No. 1 could not have been the Rita Behera which has been described in the voter list of 2001 inasmuch as the house number of her husband is different and apart from that the same Rita Behera was described consistently as wife of Fakira in the voter lists of 1995, 1996 and 1999. On recording such findings Learned Civil Judge found opposite party No. 1 disqualified to contest for the post of Member of Panchayat Samiti and accordingly declared her election illegal and directed for fresh election.
8. In M.J.C. No. 14 of 2002 petitioner examined six witnesses including herself as P.W. No. 1 and her husband as P.W. No. 2 and the Doctor as P.W. No. 6. She also relied on five documents. Out of them Exts. 1, 2, 3 and 5 are the certified copies of voters' lists respectively of the year 1995, 1999, 2002 and 1996, and Ext. 4 was the medical certificate dated 6.4.2002 issued by P.W. No. 6. Opposite party No. 1 examined six witnesses including herself as O.P.W. No. 1, Fakira and Purnabasi as O.P.W. Nos. 3 and 4 and her father as O.P.W. No. 5. She relied on three documents and out of that Exts. A and B are the certified copy of Voter's Identity Card of P.Ws. 4 and 3 respectively and Ext. C is the certified copy of the Caste Certificate No. 332 of 2002 relating to opposite party No. 1. On assessment of the evidence, Learned Civil Judge recorded similar finding of disqualification as in M.J.C. No. 13 of 2002.
9. In both the appeals, though separately disposed of, Learned Addl. District Judge perused the evidence and set aside the findings of Learned Civil Judge in respect of condonation of delay on the grounds that plea of illness assigned by the petitioners in each of the cases was not substantiated by cogent and acceptable evidence. The election dispute being a dispute of the nature of a suit, the delay is to be condoned on strict proof of sufficient cause and in that respect petitioners in each of the cases failed to prove sufficient cause and the Trial Court on wrong appreciation of evidence and making a liberal approach, wrongly condoned the delay. So far as the age of opposite party No. 1 is concerned, Learned Addl. District Judge set aside the findings of Learned Civil Judge on the ground that the horoscope, evidence of astrologer and father of the opposite party No. 1 are sufficient to hold that the year of birth of opposite party No. 1 was 1980 and not 1982 as in the school record. Learned Addl. District Judge similarly referred to the voters' list exhibited from both the sides and recorded the finding that opposite party No. 1 was wrongly described as wife of Fakir so far as voter list of the year 2001 is concerned and in that respect the findings recorded by Learned Civil Judge is based on surmises and conjecture. On recording such finding Learned Addl. District Judge upheld the election of opposite party No. 1 both as the Member of the Panchayat Samiti and also as Chairman and accordingly allowed the appeals.
10. As already noted, the first petitioner in the first Misc. Case has filed W.P.(C) No. 6400 of 2002 and the petitioner in the second Misc. Case has filed W.P.(C) No. 6399 of 2002 challenging to such findings and decisions of Learned Addl. District Judge respectively in Election Appeal Nos. 3 and 2 of 2003. In substance, contention of the petitioners in each of the cases is that the plea taken by them was substantiated through proper evidence that was properly and correctly assessed by Learned Civil Judge, but Learned Addl. District Judge rejected the same by wrongly noting absence of evidence and finding of Learned Civil Judge being suffering from surmiss and conjecture and that such findings of Learned Addl. District Judge is not only perverse but also suffers from illegality. Petitioners in each of the cases further contended that the ground of illness taken by the petitioners was not proved to be untrue or false by any rebuttal evidence and minor contradiction was much highlighted by Learned Addl. District Judge to disbelieve the plea of illness and that when the ground of impersonation and non-eligibility of opposite party No. 1 is under consideration, a liberal approach and not technical approach is just and proper in respect of condonation of delay. Accordingly they argued to set aside the judgments in both the appeals and to restore the order in the M.J.Cs. In addition to that, petitioner in the second case also prayed that since she was the lone contesting candidate against opposite party No. 1 for the post of Chairman, therefore, on setting aside the election of opposite party No. 1 she be declared as elected instead of declaring casual vacancy and fresh election.
11. M.J.C. No. 13 of 2002 was filed challenging to election of the opposite party No. 1 as the member of Panchayat Samiti from Mundipadar Grama Panchayat Constituency. Fact involved in that case admittedly indicates that nomination was filed on 21.1.2002, scrutiny was made on 22.1.2002, election was held on 23.2.2002 and the result was declared on 2.3.2002. According to the language employed in Section 44-B, Election petition is to be presented within 15 days after the date on which the result of the election was announced. Therefore, the last date of filing the Election Petition was 17.3.2002. Election Petition was filed on 4.4.2002. Though application for condonation of delay was filed by the petitioner but the same was taken up into consideration at the time of hearing of the Misc. case on merit. Accepting the assertion in the application for condonation of delay, petitioner Maharagu Naik did not state anything in his evidence explaining the cause of the delay so as to permit the Court to examine if such cause constitutes sufficient cause for condonation of delay. In the case of Satyanarayan Samant v. State of Orissa and Ors. 1994 (I) OLR 363, this Court held that:
5. Chapter Vl-A of the Act deals with election disputes. Section 44-A provides no election of a person as a member of a Samiti held under the Act shall be called in question except by an election petition presented in accordance with the provisions of the Chapter. The petition is to be presented within fifteen days after the days on which the result of the election was announced, as prescribed under Section 44-B. However, second proviso to Sub-section (1) of Section 44-B authorizes condonation of failure to do so within stipulated time on the petitioner satisfying the Election Commissioner about existence of sufficient cause for the same.
The expression 'sufficient cause' has not been defined either in the Act or the Limitation Act, 1963. It means a cause, which is beyond the control of the party invoking the aid of the provision authroising condonation. The test, whether or not a cause is sufficient, is to see whether it is a bona fide cause inasmuch as nothing shall be taken to be done bona fide or in good faith which is not done with due care and attention. Subject to the above test, the words 'sufficient cause' should receive liberal construction so as to advance substantial justice. The words 'sufficient cause' are very wide and comprehensive in their meaning and so no attempt should be made to define precisely or rigidly their scope. The Legislature has in its wisdom left unfettered discretion on the facts of each case with object of furthering substantial justice. As was observed in the Full Bench decision in Krishna v. Chathapoan ILR 18 Madras 269, in a passage, which has become classic, the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the applicant. But the descretion of the Court has to be exercised judicially. Any fanciful or apparently false explanation should not be the basis for condonation. The fundament principle relating to prescription of period of limitation is to induce claimants to be prompt in claiming relief. Unexplained delay or latches can hardly be encouraged or countenanced. The passage was quoted with approval in Dinabandhu Sahu v. Jadumani Mangaraj and Ors. AIR 1964 SC 411. Normally speaking this Court would be slow to substitute its own exercise of discretion for that of the Court below, but when it is shown that the said Court had, in exercising its discretion, acted unreasonably or capriciously or had ignored relevant facts and adopted an unjudicial approach, then this Court would be entitled and perhaps also bound to interfere with the Lower Courts' discretion. If the Court below does not exercise its discretion at all or exercises its discretion capriciously, whimsically and arbitrarily or without proper legal material to support its decision, this Court can interfere.
6. Though it cannot be gainsaid that while dealing with applications for condonation of delay, too much insistence on technicalities would be counter-productive, at the same time, where statute prescribed a short period and the election of a person elected under any statute is questioned, the party seeking condonation of delay has to present a plausible and acceptable case, in support of the plea. XXX XXX XXX XXX XXX XXX.
12. In this case petitioner has led no evidence in support of the plea of illness. Under such circumstance decision in that respect of Learned Addl. District Judge cannot be faulted with. While in seisin of the matter under Article 227 of the constitution, we do not interfere with that finding of the Learned Addl. District Judge. Once the Election Petition was not in time and the delay is not explained by proper evidence, such delay cannot be condoned oh the basis of application for condonation of delay when that is opposed by the opposite party. Thus, in such a case gravity of the allegation on merit of the case is not relevant to constitute sufficient cause to condone the delay. In fact, Learned Civil Judge should have taken up the application for condonation of delay for consideration and should have taken up hearing of the case on merit only if the delay is condoned. Be that as it may because of the delay in filing the Election Petition and not establishing sufficient cause in support of the prayer for condonation of delay, M.J.C. No. 13 of 2002 was rightly held to be barred by time as per the impugned judgment of Learned Addl. District Judge. Once that be so, there is no need to consider the grounds on merit challenging to the election of the opposite party No. 1 as member of the Panchayat Samiti. Accordingly W.P.(C) No. 6400 of 2003 is dismissed, but parties are directed to bear their respective cost of litigation.
13. So far as M.J.C. No. 14 of 2002 is concerned, that application was also found barred by time by 13 days inasmuch as election to the post of chairman was held and result declared on 11.3.2002 and the Election Petition was filed on 8.4.2002, when the last date of filing the Election Petition was 26.3.2002. In this case also application for condonation of delay was filed. In he depositions of petitioner as P.W. No. 1 and her husband as P.W. No. 2, evidence was brought on record that petitioner in the second case was admitted as an indoor patient from 23.3.2002 to 30.3.2002 and was also under treatment on 6.4.2002 and accordingly Medical Certificate (Ext. 4) was granted by P.W. 6. In that respect, the Doctor, P.W. 6 also proved the Medical Certificate and the aforesaid fact of ailment, which is consistent with the plea of illness stated by P.Ws. 1 and 2. Learned Civil Judge while found that explanation to be sufficient to condone the delay, Learned Addl. District Judge found that there was some contradiction in the evidence of P.Ws. 1 and 2 inter se so also evidence of P.W. No. 6 giving rise to doubt about bona fide in the plea of illness. The contradictions are relating to the date on which she was admitted the disease she suffered from and the activities in the meantime undertaken by her husband. In the case of Satyanarayan Samant (supra), as has been quoted above, this Court explained the expression 'sufficient cause' and at the same time observed that 'sufficient cause'' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to the applicant. In the present case except advancing the plea that the plea of illness is false, Opp. Party No. 1 did not tender any evidence from her side. In her deposition or in the deposition of any other witnesses examined from her side, she did not whisper if the petitioner was not ill or that she was well and the plea of illness is false. Under such circumstances, approach of Learned Civil Judge in assessment of evidence is found to be correct as against the hair-splitting interpretation of the evidence in the context of illness adopted by the Learned Addl. District Judge. Therefore, the reasoning assigned and the conclusion arrived at by the Learned Addl. District Judge in not condoning the delay (in M.J.C. No. 14 of 2002) is illegal and accordingly set aside. In that respect the order of Learned Civil Judge is upheld relating to condonation of delay.
14. In view of the preceding finding, the other findings recorded by the Courts below on the material issues need consideration. As in several cases, here also we reiterate that while exercising the supervisory jurisdiction under Article 227 of the Constitution, we do not propose to act as Appellate Authority as against the impugned judgment and we scrutinize the evidence and findings recorded by the Courts below to find out if the impugned judgment suffers from illegality or perversity.
15. According to Rule 3 of the Orissa Panchayat Samiti Election Rules, 1991, no person shall be eligible to stand for election as a Member Samiti unless his name finds place in the electoral roll of the Samiti Constituencies within the Samiti. In Rule 6 the term 'Electoral Roll' has been defined by stating that final electoral roll of every Grama, prepared under the Panchayat Election Rules comprised within the Samiti Constituencies including the revision, addition or alteration, if any, together from the final electoral roll of that Samiti Constituency. That position of law and its applicability to this case is not in dispute between the parties.
16. Petitioner in M.J.C. No. 14 of 2002 claimed that by 2001, i.e., on the date of nomination for the post of Member on 21.1.2002 petitioner's name was not there in the Electoral Roll and that she utilized serial entry No. 551 of House No. 360 by describing herself as Rita Behera so as to contest the post of Member of the Panchayat Samiti. Opp. party No. 1 without disputing to that allegation, however, contended that she is Rita Behera, but her husband's name was wrongly recorded as Fakira Behera in the said Voters' List. Beyond that she did not plead for any further clarification so far as the description in the Voters' List is concerned. Therefore, if it is established on record that said Rita Behera is somebody else that the Opp. party No. 1, then she is required to prove that her name was there in the Electoral Roll on the date of filing of the nomination for the post of member of Panchayat Samiti constituency. In that respect, oral evidence of the parties are of little consequence and the documentary evidence together with the explanation from the witnesses determines the issue.
17. It may be noted here that Ext. 1-Voter's List of 1995, Ext.-5-Voters' List of 1996, Ext. 2-Voters' List of 1999 and Ext. 3-Voters' List of 2001 consistently describe that Dinger Behera, son of Gokuli Behera has a separate house together with his parents, brother and brother's wife vide separate 'Ghara' number (House number) and Fakira Behera (O.P. No. 3) together with his wife, widow mother and brother have been described in a separate 'Ghara' number (House number). Description of Rita Behera is consistently made as the wife of Fakira Behera in all the Voter's Lists. Therefore, even if the O.P.Ws. 3 and 4, i.e., Fakira and his wife describing herself as Purnabasi deposed that they are living in another district and have been issued Voter Identity Card since 1995, that does not exclude even possibility of their names being in the voter's list of the native village of Fakira Behera. In other words, there is no evidence to indicate that their names were not entered in the aforesaid voter's lists or that such entries do not relate to or with reference to them such a presumption does not automatically flow from the voters' identity card issued to them in some other constituency. When Learned Civil Judge remained alive to such fact situation and also took note of the fact that description 'Rita Behera, wife of Fakira Behera' is all along in the Voters' List in the same manner from the year 1995 whereas opp. party No. 1 because of her marriage in March, 2001 came to Village Routabahal and, therefore, she could not have been described as Rita Behera, wife of Fakira Behera by showing her husband's name wrongly as against SI. No. 545 of Ext. 3, because in that document she has been described as Tara Behera, wife of Dingar Behera. For the sake of discussion, if it is held that she bears as alias name and was being address at Rita Behera, then for that Entry No. 547 of Ext. 3 should have been corrected and not 551 should have been counted in favour of opp. party No. 1. Learned Addl. District Judge without assessing the said evidence in proper manner committed illegality of eliminating that evidence only because of oral evidence of the witness from the side of the opp. party No. 1 and particularly evidence of O.P.Ws. 3 and 4. At the cost of repetition, it is stated that evidence of O.P.Ws. 3 and 4 at best goes to indicate that they have been described as voters in another district. Beyond that their evidence cannot be read so far the relevant entries in Ext. 3 are concerned. Opp. party No. 1 stated that she filed an affidavit for accepting her as Rita Behera vide SI. No. 551 of Ext. 3 and, therefore, she is a voter of Routabahal by the date of filing of nomination. That affidavit obviously is wrong and borne on false fact. Apart from that opp. party No. 1 did not produce a scrap of paper to rebut the presumption arising from Exts. 1 to 5 that in fact her name had been entered in the Electoral Roll. If her contention in that respect is correct, then she could have filed the copy of that Electoral Roll which was valid and operative on 21.1.2002. She did not produce any such evidence. Therefore, opp. party No. 1 was not eligible to contest as a Member of Panchayat Samiti and, therefore, she was not qualified to contest for the post of Chairman. In the above context, the caste certificate (Ext. C) in her favour in RMC No. 332 of 2002 is of no evidentiary value of build up a presumption that she was in Electoral Roll by the relevant date.
18. So far as the issue of under-age of the opp. party No. 1 is concerned, petitioner in M.J.C. No. 14 of 2002 prima facie proved the same because of admission from the side of the opp. party No. 1 regarding entry in the School Register about her date of birth. Thus, onus was on opposite party No. 1 to prove that her date of birth was in the year 1980 and the entry in the School Record is not her actual date of birth. In that respect, she depended on her own evidence as O.P.W. No. 1 and the evidence of her father as O.P.W. No. 5. Though they referred to a horoscope, but such document was not brought on evidence nor the person, who prepared that horoscope, was examined as a witness. Be that as it may, approach of both the Courts below, so far as assessment of evidence is concerned, does not suffer from illegality or perversity. They have taken two probable views on the age of the opp. party No. 1 with respect to his (sic. her) date of birth. When view of the Addl. District Judge in that respect is one of the probable views and that finding does not suffer from illegality or perversity, we are not inclined to interfere with the same. Under such circumstance, we do not find it necessary to make a further discussion on the basis of the ratio in the case of Braja Mohan Singh v. Priya Brat Narain Sinha and Ors. : [1965]3SCR861 and Birad Mal Singhvi v. Anand Purohit : AIR1988SC1796 , which were referred to by the Courts below as well as in course of argument before us.
19. In view of the forgoing reasons, we find that so far as the M.J.C. No. 14 of 2002 is concerned opp. party No. 1 was found disqualified to contest the election as a Member of the Panchayat Samiti in view of her non-eligibility being not in the Electoral Roll of the Samiti Constituency by the date of filing of nomination. Under such circumstance, her election as the Member of Boudh Panchayat Samiti Constituency from Mundipadar Grama Panchayat Constituency is set aside and a casual vacancy is created as per the decision of Learned Civil Judge and consequentially opp. party No. 1 was not eligible to contest for the post of Chairman of the Panchayat Samiti and, therefore, her election to that post is declared void. Contention of the petitioner to declare her elected is not considered, because out of 21 votes she had secured only 4 votes whereas the opp. party No. 1 had secured 17 votes. Under such circumstance, we approve the direction issued by Learned Civil Judge with respect to fresh election to the post of Chairman of Boudh Panchayat Samiti. Accordingly the order of Learned District Judge in Election Appeal No. 2 of 2003 is set aside and consequentially order passed by Learned Civil Judge in M.J.C. No. 14 of 2002 is restored.
20. W.P.(C) No. 6399 of 2003 is accordingly allowed. We direct the parties to bear their respective cost of litigations.
21. To sum up, we hold that W.P.(C) No. 6399 of 2003 is allowed in terms of the findings and orders recorded above and W.P.(C) No. 6400 of 2003 is dismissed.
A.K. Parichha, J.
22. I agree.