Dibakar Jena Vs. Prafulla Kumar Mohapatra and anr. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1 contested the petitioner in the said election and he was defeated by a margin of 6 votes. the plenary powers of the commission under article 324(1) are well recognised and the powers granted to the commission under article 324(1) and exercised by it for a specific purpose may be liberally construed to effectuate the purpose, i. it is argued that primacy of the state election commission as provided in section 27 (1) and (2) of the act is for good reason. abdul ganilone) provides that mandatory requirement of rule is to be tested on the basis that whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to hold that the requirement is not mandatory. 16. with greater force it is argued that the full bench decision of this court in 1995 (i) olr 36 (supra) interpreting the provisions of rule 43 of the orissa panchayat samiti election rules like rule 47 of orissa grama panchayat election rules and the language 'a vote shall be liable for rejection' held to be mandatory. if the election rules provide clearly rejection of a ballot paper in the absence of compliance with the statutory formalities, there cannot be any new vista to hold otherwise in a purported pragmatic way as contended by the learned counsel for the petitioner.susanta chatterji, actg. c.j.1. the present writ petition at the instance of dibakar jena challenges the order of the learned district judge-cum-election appellate tribunal, puri passed in election misc. appeal no. 120 of 1997 confirming the judgment dated 16.12.1997 made by the civil judge, junior division, nimapara, in election misc. case no. 10 of 1997. the election of the petitioner as sarpanch has been held void.2. it is contended by the petitioner that he was duly elected as sarpanch of kurujanga gram panchayat of kakatpur in the district of puri in gramapanchayat election held on 21.1.1997 polliing 2380 votes.3. opp. party no. 1 contested the petitioner in the said election and he was defeated by a margin of 6 votes. opp. party no. 1 filed election dispute being registered as election misc. case no. 10 of 1997 before the civil judge (junior division)-cum-election tribunal, nimapara challenging the election of the petitioner.4. the following issues were framed by the election tribunal :(1) is the case legally maintainable ?(2) has the petitioner any cause of action to file the case ?(3) is the election of opp. party no. 1 to the post of sarpanch valid and legal ?(4) whether any material irregularity has been caused during election affecting the result of the candidate in general ?(5) whether serious material irregularities were committed in the report of conducting election in booth no. 12 affecting the results of the election of the candidates in particular ?(6) whether all the ballot papers supplied to the presiding officer of booth no. 12 were utilised and distributed to the voters to cast their votes on the said ballot papers without bearing signatures and seal of the presiding officer and the distinguished booth seal mark ?(7) whether opp. party no. 1 in collusion with opp. party no. 2 has caused any material irregularity in utilising the ballot papers without bearing the signature and seal of the presiding officer for his own gain to be elected as sarpanch in kurujanga grampanchayat at the election ?(8) whether the petitioner is entitled to the reliefs claimed by him ?(9) to what other relief ?5. evidences were adduced. the learned civil judge held that the result of the case turned around the interpretation of rules 17 and 47 of the gramapanchayat election rules, 1985 and the election case was vitiated for want of compliance with the requirement of the rules as aforesaid.6. an appeal was preferred by the petitioner and the appellate authority has since confirmed the judgment of the civil judge (junior division)- cum-election tribunal, nimapara.7. being aggrieved by and dissatisfied with the judgment of the courts below the petitioner has filed the present writ petition seeking the following reliefs :'........to admit the writ petition, call for the lower courts records and upon hearing quash the orders dated 16.12.1997 of the learned civil judge (junior division), nimapara in election misc. case no. 10 of 1997 and dated 20.4.1998 of the learned district judge, puri in election misc. appeal no. 120 of 1997 and upon allowing the said appeal declare that the petitioner is validly elected sarpanch of kurujanga gram panchayat;and pass such other order in the facts and circumstances of the case and as such allow the election misc. appeal.......'8. mr. behura, learned counsel for the petitioner has strongly argued with regard to scope and jurisdiction of the election commission of india as found in article 324 read with articles 327 and 328 of the constitution of india. he has relied on a decision of the supreme court dealing with the scope and jurisdiction of the election commission of india reported in air 1972 sc 187 (sadiq ali v. the election commission of india). he has also relied on a decision reported in air 1978 supreme court 851 (m.s.gill v. the chief election commissioner, new delhi). he has highlighted an observation as to package of election law as observed by v.r.krishna iyer, j. (as his lordship then was) in paragraph-12 at page 859 of the judgment reported in air 1978 sc 851 (supra). in this decision it has been highlighted as to the provisions of the constitution- the two representation of peoples act and the rules framed thereunder- instructions issued and exercises prescribed constitute the package of electoral law governing the parliamentary and assembly elections in the country.9. mr. behura has laid emphasis upon the observation of the supreme court reported in air 1985 sc 1233 (lakshmi charan sen and ors. v. a.k.m. hassan vezzaman and ors.). he has also drawn attention of the court to certain observations made by the apex court in air 1986 sc 111 (kanhiya lal omar v. r.k. trivedi and ors.). it is argued that the representation of peoples acts, 1950 and 1951, the registration of elector rules and the conduct of election rules, etc. are a complete code in themselves in the matter of elections to parliament and state legislatures. where the commission issues any instruction or direction under such act or rules, it cannot have greater or higher status than the act or the rules, under which they were so issued. in other words, such instructions or directions cannot have the status of law and may be tested with reference to statutory provisions. the plenary powers of the commission under article 324(1) are well recognised and the powers granted to the commission under article 324(1) and exercised by it for a specific purpose may be liberally construed to effectuate the purpose, i.e. to ensure free and fair elections. the powers of the state election commission with regard to panchayat elections may be found in article 243k (l) and (4) of the constitution of india. article 243k(1) is akin to article 324(1) and article 243k(4) is akin to articles 327 and 328. the analogy of the powers and functions of the election commission of india and the state election commission should be looked into. it is argued that primacy of the state election commission as provided in section 27 (1) and (2) of the act is for good reason. the state legislature was aware that complete code of election did not exist as is evident from section 27 (3) of the act and clause (iv) thereof. it is submitted that para 5 (iv) of the circular (ext.e) cannot be regarded as a mere instruction or direction from the state commission to its returning officers. the circular, it may be noted, was not issued under any act or election rules as in a decision of the supreme court reported in air 1985 sc 1233 (supra) but was intended to cover a field where the statutory rule is silent, i.e., how a ballot, not bearing stamp and/or signature of a presiding officer but issued in course of an election, was to be recounted before declaration of results under rules 51 and 52 of the orissa grama panchayat election rules, 1965. para 5 (iv) of the circular covered under the residuary powers of the state election commission under article 243k of the constitution of india can be held to be law as qualifying and supplementing rule 47 (h) of the orissa grama panchayat election rules, 1965 rather than supplementing or overriding the same as has been held by the election tribunal or the learned district judge in appeal.10. it is also argued that rules 17 and 47(h) of the rules must be construed to mean :(i) the presiding officers shall issue ballot papers, stamped and signed by them, before issuing the same to voters;(ii) when that is done, any ballot papers not bearing the seal and signature of a presiding officer, found in a ballot box, cannot be counted as a valid vote;(iii) to construe the provisions otherwise, to reject a ballot paper, issued in the course of an election but not spurious or improperly procured, would be to dis-enfranchise a voter, whose vote is recorded thereon and to penalise a candidate for the mistake, error or omission of a presiding officer, to put his seal, signature or either and to saddle a public with re-elections on that account, a result so unjust, absurd and unfair that could not have been intended by the framers of the rules.11. mr. behura argues that the bench decision of this court reported in 1995 (i) olr 36 (binod nayak v. dasaratha padhi and ors.) wherein the court had to consider the validity of a vote recorded, not on the column prescribed for the purpose under rule 41 (2) and (3) of the orissa panchayat samiti election rules, 1991 but against the name of candidate in another column and held that the same was liable to rejection under rule 43 of the said rules. the ratio of the full bench decision, according to mr. behura, may be confined to the issue as to whether rule 43 (1) and (v) of the orissa panchayat samiti rules, 1991, was mandatory or directory and it is submitted that the observations of the court in para - 9 at page 41 of the reported decision, as to all the requirements of rule 43 being of mandatory nature are to be treated as obiter only. the same must be not held to be binding on the division bench in construing rule 47 (h) of the orissa grama panchayat rules, 1965 in view of the special provisions of section 9.27 (1)(2) read with article 243k of the constitution of india.12. it is highlighted that if the ballot papers issued by a presiding officer in course of an election without seal or signature or both but not found to be spurious or improperly procured, may be treated as valid, construing the provision under rule 47 (h) in such a case, as directory only in so far as the vote recorded by a voter to whom such ballot was issued and preference expressed thereon in favour of a candidate was concerned.13. it is further argued that the ratio of the decision in air 1983 sc 1311 relates to the proviso in rule 56 (2)(h) of the conduct of election rules, 1 961 but the statement of the court that no voter, whose vote was recorded can be disenfranchised and no candidate in whose favour any vote is cast can be penalised for the mistake or omission of a polling or presiding officer to put distinguishing mark and signature on a ballot paper that he was required to do while issuing the ballot paper in course of an election, is a statement of law, which deserves great weight.14. it is submitted that the ratio of the decisions either in air 1983 sc 1311 (supra) or in 1995 (1) olr 36 (fb) is distinguishable and the observations made therein are obiter. the petitioner has accordingly prayed for setting aside the judgments made by the courts below. the main force of his submission is that the findings of the courts below, as it appears, are result of confusion as to the scope and jurisdiction in the election dispute which is not a proceeding in common law or for equity, but as per the statutory provisions only.15. opp. party no. 1 has contested the case. it is submitted that inspection of all ballot papers polled in favour of elected candidate is ordered. some ballot papers found to be not containing prescribed mark of rubber stamp of particular booth can be rejected during inspection. absence of specific allegations in pleadings in respect of such ballot papers is not bar for inspection as found in air 1989 sc 2033 (n.e. hora v. leander tiru). it is also submitted that the ratio of the decision reported in air 1980 sc 303 (sharif uddin v. abdul ganilone) provides that mandatory requirement of rule is to be tested on the basis that whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to hold that the requirement is not mandatory.16. with greater force it is argued that the full bench decision of this court in 1995 (i) olr 36 (supra) interpreting the provisions of rule 43 of the orissa panchayat samiti election rules like rule 47 of orissa grama panchayat election rules and the language 'a vote shall be liable for rejection' held to be mandatory. attention of the court is also drawn to air 1986 sc 737 (union of india v. arun kumar roy), air 1996 sc 2314 (sri dharamvir v. amar singh) and air 1987 sc 117 (chanda varkar sita ratna rao v. asha lata s. guram). specific attention of the court is drawn to articles 243c and 243k of the constitution of india, orissa grama panchayat (amendment) act, 1995, particularly sections 9 and 27 thereof, sections 37 and 39 of the orissa grama panchayat act, 1964 and orissa grama panchayat election rules, 1965 as amended by orissa grama panchayat election (amendment) rules, 1995.17. patiently, we have considered the submissions made by the respective parties. we have perused the judgment of the courts below. by recording detailed reasons the trial judge has allowed the election petition in part declaring that opp. party no. 1 has not been duly elected to the post of sarpanch of kurujanga grama panchayat. the election of opp. party no. 1 was declared void in view of rule 39 (i)(e) of the orissa grama panchayat act, 1965. a vacancy was created in the post of sarpanch of kurujanga grama panchayat. in appeal the appellate authority has affirmed the judgment of the trial court observing as follows :'after scrutiny, it was clear that a lot of ballot papers in booth nos. 12 and 13 and some ballot papers in some other booths did not bear distinguishing mark and seal of the presiding officer. there were also some ballot papers, though scanty in number which did not bear the signature and seal of the presiding officer. the curt can exclude a ballot paper which ought not to have been accepted even in the absence of pleading to that effect. in booth nos. 12, 36 ballot papers were found without seal of the presiding officer and there were no distinguishing marks on them. in booth no. 13, 127 ballot papers were found without seal of the presiding officer cast in favour of opp. party no. 1. it was found that in booth no. 12, all the ballot papers did not bear the seal of the presiding officer and there were no distinguishing marks. in other booths, there were some defects noticed in the ballot papers either those were without the signature and seal of the presiding officer or without distinguishing mark of the candidates. since the margin between the petitioner and o.p. no. 1 were only six, it is just a border line cast. if those invalid papers would have been rejected from being counted in favour of o.p. no. 1, he had absolutely no chance to win the election and to be declared sarpanch of kurujang grama panchayat. the settled law under rule 47 of the orissa grama panchayat election rules, 1965 is that ballot box shall be scrutinised by the presiding officer in course of counting and a ballot paper shall be liable for rejection on one or more of the following grounds as per (a) to (h) of this rule. under (h), if a ballot paper does not bear the seal and signature of the, presiding officer, it has t6 be rejected. under (g), if it is of a design different from the one authorised for use at the polling station and under (f), if it is shown damaged or mutilated that its genuineness cannot be established. the presiding officer shall summarily decide at the time of scrutiny and in case of rejection shall so endorse under his signature on the ballot paper itself. he shall also record the reason for each ballot paper so rejected in a separate paper. the laches of the presiding officer or the election officer are to be taken into serious account if it materially affects the election process. under sub-section 2 of section 39 of the orissa grama panchayat act, due to mistake, errors or irregularity or informality committed by the officer or officers charged to carry out the provisions of this act or of any rules made thereunder if it materially affects the result of the election as it has been found in this case, the election shall be declared void.'18. we have scrutinised the provisions of law. the full bench decision reported in 1995 (i) olr 36 (supra) is a stare decisis. the full bench decision is wholly binding on the division bench unless there is any decision of the apex court to the contrary. although it is submitted that this court may differ and refer the matter for another full bench decision, we do not find any merit in such submission. if the election rules provide clearly rejection of a ballot paper in the absence of compliance with the statutory formalities, there cannot be any new vista to hold otherwise in a purported pragmatic way as contended by the learned counsel for the petitioner. the election rules as quoted by the courts below and the interpretation made in the full bench decision of this court have sufficiently cleared all confusions and there is no way out but to reject the ballots which were considered in favour of opp. party no. 1. the decisions of the courts below, according to our view, do not suffer from any material irregularity and/or illegality although there is a lengthy submission on one points of law. there is no dispute to any proposition of law or to any reported decisions. all that we are to apply the right decision to the facts of the case at hand. the instant case does not require any interference by the writ court. finding no merit, we dismiss the writ petition. there would be no order as to costs.d.m. patnaik, j.19. i agree.