KAMAYA @ KAMEYA WADAKA Vs. NEELAMADHAV HIKAKA

JUDGEMENT

(1.) This is the second journey of the petitioner to this Court. On earlier occasion, he has filed W.P.(C) No.2012 of 2013, which was disposed of in his favour. After remand by this Court in W.P.(C) No.2012 of 2013, the question of condonation of delay in filing of Election Petition No.12 of 2012 in the court of the Civil Judge (Senior Division), Gunupur was taken up and as per the order dated 08.10.2013, learned Civil Judge (Senior Division) refused to condone the delay and rejected the application of the petitioner. Against such order, this writ petition has been filed.

(2.) The factual backdrop leading to filing of this writ petition may be succinctly described as follows: The petitioner, hereinafter referred as the "election petitioner", was a candidate for the post of Samiti Sabhya of Thuapadi Samiti of Bissam-Cuttack Block. The result of which election was declared finally on 24.02.2014 and in such election, opposite party no.1-Nilamadhab Hikaka, hereinafter referred as the "returned candidate", was declared elected for the aforesaid office. Being aggrieved by such election, the election petitioner filed an election petition on 16.03.2012. It is alleged that the election petition was presented after the delay of seven days. Accompanied with the election petition, he filed a petition under Section 5 of the Limitation Act. Learned Civil Judge (Senior Division), Gunupur admitted the election petition and issued notice to the opposite party no.1 i.e. the returned candidate with the observation that the prayer relating to condonation of delay being a mixed question of fact and law will be dealt with at the time of final hearing of the election petition. Being aggrieved with the order, opposite party no.1 i.e. the returned candidate challenged the order before this Court in W.P.(C) No.7367 of 2012. This court while disposing of the said writ petition on 25.04.2012 set aside the order of the learned Civil Judge (Senior Division) passed on 03.04.2012 and remitted the matter to the trial court to consider the issue of limitation after giving opportunity of hearing to both the parties. Thereafter, both the parties led evidence and on behalf of the election petitioner, four witnesses were examined and three witnesses were examined on behalf of opposite party no.1, the returned candidate. After considering the materials on record, the learned Election Tribunal-cum-Civil Judge (Senior Division), Gunupur rejected the prayer of condonation of delay, as consequence thereof it was held that the Election Petition No.12 of 2012 was not entertain able. Aggrieved by the aforesaid order dated 17.01.2013, the present petitioner filed a writ petition before this Court in W.P.(C) No.2012 of 2013, which was disposed of on 12.07.2013. This Court on hearing both the parties and taking into consideration that the Election Tribunal had not considered the relevant evidence on record allowed the writ petition with a direction to the Election Tribunal to consider the relevant evidence afresh and pass an order within a period of 15 days. However, the returned candidate preferred a Special Leave Petition (Civil) before the Hon'ble Apex Court, which was registered as S.L.P. (Civil) No. 24812 of 2013 against the order passed by this Court. Said S.L.P. was dismissed on 16.08.2013. After disposal of the S.L.P. and rehearing of the parties, the learned Civil Judge (Senior Division) rejected the petitioner's prayer for condonation of delay, which is assailed in this writ petition.

(3.) Before looking into the materials on record to decide whether an application for condonation of delay should have been allowed by the Election Tribunal, it is appropriate to take note of the leading decisions of this Court on this issue. In Maharagu Naik and others v. Civil Judge, Senior Division-cum-Election Commissioner, Boudh and others, 102 (2006) CLT 710; a Division Bench of this Court held that Section 5 of the Limitation Act is also applicable to the election case under the Panchayat Samiti Act and has held as follows: