Significant Judgments
JUSTICE S.K. MISHRA
The facts of the case run as such that respondent no.3 was elected as a Sarpanch of Saliha Grama Panchayat of Nuapada block on 27.02.2017. An appeal was filed by the appellant and others on the ground that nomination of the respondent no.3 was accepted illegally as she has not attained the age of 21 years on the date of filing of the nomination and as such, she was not qualified for the post of Sarpanch.
The learned Single Judge, in W.P.(C) No.2924 of 2019,after taking into consideration the materials placed before him and relying upon a judgment of this Court in W.P.(C) No.3321 of 2018 held that the allegation about not attaining the age of 21 i.e., the age of eligibility is a violation of Section 11 (b) of the Act, and it can only be challenged in an election petition filed under Section 30 of the Act and the allegation made does not come within the purview of Section 25 of the Act.The counsel for the respondent had tried to save this judgment by Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, and others, AIR 1999 SC 1120 and Debaki Jani v. the Collector and another.
While answering the question formulated at the beginning of the judgment, the present Bench thought that the procedure adopted by the learned Single Judge in disposing of the writ petition was improper because a Bench of coordinate strength had already decided this matter in Bilash Majhi v. Collector and District Magistrate, Kalahandi and another. Upholding Justice C.R. Dash’s judgment in Bilash Majhi v.. Collector & District Magistrate, Kalahandi and another the Court said that the factual findings of the Collector, Nuapada that the date of birth of respondent no.3 is 29.09.1997, hence she had not attained the age of 21 years on the date of nomination, has not been set aside by the learned Single Judge. Therefore, her nomination is illegal and cannot be upheld by the Court. In election petition filed under Section 30 of the Act, questions relating to the absence of qualification or presence of disqualification as mentioned in Sections 11 and 25 of the Act can be gone into and in the Bench’s considered opinion, an application under Section 26 of the Act has within its gamut the absence of qualification as well as the presence of disqualification. Hence, accordingly, the Writ Appeal is allowed. It was directed that the election of respondent no.3 to the post of Sarpanch was illegal as she did not have the qualification to contest in the election on the date in question.
The facts of the case are such that in this appeal, the appellants have challenged the judgment and order of conviction dated 20.8.1998 for the offense under Sections 498-A/328/302/201/34 of the Indian Penal Code. Bina Naik was given in marriage to deceased Gangadhara Naik about four years before the occurrence. At the time of marriage, all possible dowry including cash, gold and silver ornaments, utensils, furniture, etc. was given to the appellants by the parents of Bina. Since Gandhara Naik was an unemployed youth, the prosecution alleges that the appellants were demanding a further dowry of Rs.10,000/- from her for investment by Gangadhara to carry out a business. Bina could not fulfill the demand because of the poor financial condition of her father. It is further alleged by the informant that the appellants tortured her, both physically and mentally, during her stay in the matrimonial house. On 22.12.1993 the appellants prepared Arisha and Kakara on the eve of SudashaBrata and Laxmi Puja to be performed on the next day. Bina was not taking part in the preparation of the pithas, Bhama Dei, the late mother-in-law of the informant, offered two Kakaras to the deceased. He consumed one and half of the kakarapitha and gave half of it to the informant. After some time, both of them felt their heads reeling. The deceased died. The informant became unconscious and was shifted to Daspalla Hospital for treatment. In the meantime, the dead body of her husband was cremated by the accused persons in the early morning of 23.12.1993 to cause the disappearance of the evidence of poisoning. Appellant 1 and Bhama Devi died during the pendency of the case and the surviving appellants took the plea of complete denial.
The Court referred to the Hon’ble Supreme Court’s Judgement of Sharad Birdhi Chand Sarda v State of Maharashtra; 1984 (4) SCC 116, and stated an alleged case of murder by poisoning required fulfilling 4 criteria for its proof.
(i) That the death of the deceased was due to poisoning. (ii) That the accused has the poison, which causes the death of the deceased, in his or her possession (iii) He had the opportunity of administering poison to the deceased. (iv) That the poison that was in the possession of the accused caused the death of the deceased.
Since no post mortem examination was conducted and also it was evident from the statement of the doctor that Bina Naik was just treated for General weakness, there is absolutely no evidence regarding the poisoning of P.W.1. Thus, the offense under Section 328 of the Penal Code was not established. The rest of the offenses are offenses under Section 498-A/34 of the Penal Code and Section 4 of the Act, in course of argument, it was not disputed that although the prosecution witnesses including Bina Naik have stated about the alleged torture by the accused persons on Bina and demand for dowry, no specific allegation has been made. In the ultimate analysis, this Court thought that there was not sufficient evidence to conclude that the prosecution had established its case beyond all reasonable doubt. The prosecution had failed to establish the very case it alleged. The surviving appellant nos. 2, 3, and 4 were thereby acquitted of the aforesaid offenses.
The present matter was referred to this division Bench to resolve the conflict between the reported cases of AbhayaCharan Mohanty v. State of Orissa and others2003 (Supp.) OLR-882 and Bhagaban Jena and others v. State of Orissa and others2007 (1) OLR-598. Both the aforesaid reported cases were decided by different Single Benches of this Court, owing to which, there was a conflict of opinion regarding a delay in applying Section 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short “OCH & PFL Act”).
The issues raised before the Court were, whether the Commissioner/Director, Consolidation could entertain the petition at any point of time, where no period of limitation has been prescribed for invoking the jurisdiction of the Commissioner, Consolidation/ Director, under Section 37 of the OCH & PFL Act? Furthermore, what was the reasonable time in approaching the Court, when no period of limitation had been prescribed?
While previously dealing with Section 37 of the OCH & PFL Act, this Court in the case of Gulzar Khan v. Commissioner of Consolidation and others 1993(II) OLR-194 had held that that the power under Section 37 of the OCH & PFL Act is “unfettered and can be exercised to render justice to some hard-pressed people who are without a remedy.” However, Full Bench further held that suchpower has to be exercised in a reasonable manner and reasonableexercise of power inheres in its exercise within a reasonable time asstated in the case of Manasram v. S.P.Pathak AIR 1983 SC 1239. This Court after perusing Section 57 of the OCH & PFL Act pointed out that a provision regarding limitation has been provided in the Act. Thus, it was apparent that the Orissa Legislative Assembly had made the provisions of the Limitation Act, except those provisions mentioned above in the statute itself, applicable to all the applications, appeals, revisions, and other proceedings under the Act. However, considering that the provision of Section 37 of the OCH & PFL Act is an enabling Section, the Court concluded that the Commissioner/Director can entertain a petition at any point of time as there is no period of limitation has been prescribed for the same under Section 37 of the OCH & PFL Act. While dealing with the issue of “reasonable time”, the Court laid importance at the instance wherethe Revisional Authorities exercised their suo motu power to correct a grave error or injustice perpetuated even after passing of 27 years.Adding an illustrative list of cases where the reasonable time may extend even to 20 to 30 years, the Bench iteratedthat “the reasonable time” in approaching the Court, is a question of fact depending on the particular facts of every case and no strait-jacket formula can be provided.
