MAKARDHWAJA MOHANTY Vs. DHARMABIRA KANUNGO

JUDGEMENT

(1.) This writ petition has been filed at the instance of the returned candidate with a prayer to quash the order dated 08.08.2012 (Annexure-3) passed by the Civil Judge (Jr. Division), 2nd Court, Cuttack (for short, 'the Tribunal') in Election Misc. Case No.8 of 2012 directing production of Death Register of U.P.H.C., Adashpur for the years 2008 to 2011(both the years inclusive) to prove the entry regarding death of three persons.

(2.) Petitioner's case in a nut-shell is that the election petitioner (opposite party herein) filed Election Misc. Case No.8 of 2012 challenging the election of the present petitioner-Makardhwaja Mohanty for declaring his election to the post of Sarapanch, Uttaran Grama Panchayat under Kantapada Block in the district of Cuttack as illegal and for inspection and counting of ballots. Election petitioner's further case is that as per the result of counting recorded in Form 8-A of 12 Wards by the Presiding Officers, the election petitioner was defeated by a margin of three votes. The Election Officer illegally rejected the valid votes cast in his favour and declared the writ petitioner as elected Sarapanch with margin of three votes. During the election, votes in respect of some dead persons were cast and the same were counted in favour of the returned candidate, for which the result of the election has been influenced; otherwise the election petitioner could have been elected. On receiving show cause notice, the returned candidate (writ petitioner) filed the show cause/written statement and the case was posted to 30.07.2012. On 30.07.2012, the election petitioner filed an application to call for the Death Register for the years 2008 to 2011 from U.P.H.C., Adashpur on the basis of the information obtained regarding such death through R.T.I. Act. On 06.08.2012, opp. party-writ petitioner filed his objection to the petition dated 30.07.2012 filed by the Election Petitioner, inter alia stating that as per Order 13, Rule 10, CPC, an application is required to be supported by an affidavit, which is the mandate of law and in absence of which, the petition is not maintainable. Further objection was that the Death Register is a public document and certified copy of the same is available, which can be marked without any formal proof. However, the Election Tribunal vide impugned order dated 08.08.2012 has allowed the petition dated 30.07.2012 filed by the election petitioner; hence the present writ petition.

(3.) Mr. B.Bhuyan, learned counsel appearing for the writ petitioner submitted that the impugned order has been passed without application of judicial mind. Calling for the documents as per the petition dated 30.07.2012 (Annexure-1) is premature as evidence has not yet been commenced. The Election Tribunal before directing production of Death Register should have directed the election petitioner to obtain certified copy of the Death Register so also to file the affidavit. Therefore, the learned Tribunal having allowed the petition it has exercised a jurisdiction not vested in law. Learned Election Tribunal should have directed the election petitioner to prima facie prove the allegations made by him under Annexure-1 before it or to file affidavit with cogent and substantial evidence before passing order for calling for documents, but the Tribunal has mechanically allowed the same without considering the objection filed by the petitioner under Annexure-2. The Tribunal has made gross illegality by calling for the Death Register before commencement of trial or filing of written statements. Concluding his argument, Mr. Bhuyan submitted to allow the writ petition.