Court No. - 23
Case :- MATTERS UNDER ARTICLE 227 No. - 1820 of 2018 Petitioner :- Rajrani Respondent :- Additional District Judge,Court No.2, Kaushambi And Another Counsel for Petitioner :- Vidhu Prakash Pandey
Hon'ble Salil Kumar Rai,J.
In view of the office report dated 9.7.2018 service of notice on respondent No. 2 was deemed to be sufficient vide order dated 23.8.2018 passed by this Court. However, no one has appeared on behalf of respondent No. 2 to oppose the present petition filed under Article 227 of the Constitution of India.
The facts of the case are that the post of Gram Pradhan in Village-Kanwar Tehsil-Sirathu, District-Kaushambi was reserved for Scheduled Caste women. The petitioner and respondent No. 2 alongwith other candidates contested the aforesaid elections and the respondent No. 2 was declared elected. Election Petition No. 10/2015-16 was filed by the petitioner challenging the election of respondent No. 2 on the ground that respondent No. 2 was not a scheduled caste and was, therefore, not qualified to contest the election and be elected as Gram Pradhan of Village-Kanwar Tehsil-Sirathu, District-Kaushambi in the election held in 2015. It was stated in the election petition that the nomination papers of respondent No. 2 had been wrongly accepted by the Returning Officer, and therefore, the election of respondent No. 2 was liable to be set aside and the petitioner was entitled to be declared elected in the said election. In Election Petition No. 10/2015-16 issues regarding caste and consequential legality of the election of respondent No. 2 were framed and the said issues were decided against the petitioner on the ground that the caste certificate issued to respondent No. 2 by the competent authority signifying her to be a scheduled caste had not yet been cancelled and the proceedings to cancel the aforesaid caste certificate were still pending before the District Level Committee. Consequently, the Election Tribunal vide its order dated 9.11.2016 dismissed Election Petition No. 10/2015-16 filed by the petitioner. Against the judgement and order dated 9.11.2016 passed by the Election Tribunal, the petitioner filed a Revision under Section 12(C)(6) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as, 'Act, 1947') before the District Judge, Kaushambi, which was registered as Election Revision No. 15 of 2016. The aforesaid election revision, at present is pending in the court of Additional District Judge, court No. 2, Kaushambi (hereinafter referred to as, 'A.D.J.'). In the meantime, the District Level Committee vide its recommendation dated 8.11.2017 recommended that the caste certificate issued to respondent No. 2 signifying that she was a member of scheduled caste be cancelled and on the aforesaid recommendation of the District Level Committee, the Additional District Magistrate (Finance & Revenue), Kaushami (hereinafter referred to as, 'A.D.M.') vide his order dated 10.11.2017 cancelled the caste certificate issued to respondent No. 2. Subsequently, in Revision No.
15 of 2016, the petitioner filed an application dated 15.11.2017 under Order 41 Rule 27 read with Section 107 of the Code of Civil Procedure, 1908 (hereinafter referred to as, 'C.P.C.'), wherein he sought to bring on record the order dated 10.11.2017 passed by the A.D.M. so that the said order be considered while deciding Revision No. 15 of 2016. The aforesaid application was numbered as Paper 22Ga in the Revisional Court. The A.D.J., i.e., the Revisional Court vide its judgement and order dated 23.2.2018 dismissed Paper 22Ga on the ground that in its revisional jurisdiction, the Court was not empowered to take additional evidence as Order 41 Rule 27 read with Section 107 C.P.C. were not applicable in Revision and in the proceedings under the Act, 1947. The order dated 23.2.2018 passed by the A.D.J. has been challenged in the present writ petition.
Learned counsel for the petitioner has referred to the judgements of this Court in Mool Chandra Vs. Trilok Chandra, 2001 AIR (All) 160, Radha Govind Vs. Patel Bidi Works, 2008 (72) All L.R. 219, Ramesh Chandra Dwivedi Vs. Special Judge, 2010 (81) All L.R. 689, S. Nagavalli Vs. The Election Officer (Madras High Court) and unreported judgement dated 28.9.2010 delivered by this Court in Civil Revision No. 23 of 2010, Shekhar Bahuguna Vs. Suresh Chandra Kapoor as well as the judgement of Supreme Court in Lekh Raj Vs. Muni lal and Others, AIR 2001 (SC) 996 and has argued that in view of the law laid down in the said judgements the application filed by the petitioner was maintainable and the impugned order of the Revisional Court was contrary to law and liable to be set aside.
It is evident that the caste certificate issued to respondent No. 2 signifying that she was a member of scheduled caste was cancelled vide order dated 10.11.2017 passed by the A.D.M., i.e., after the order dated 9.11.2016 passed by the Election Tribunal dismissing Election Petition No. 10/2015-
16 filed by the petitioner. The cancellation of caste certificate was a subsequent event and the event was being brought to the notice of the Revisional Court through the application filed under Order 41 Rule 27 C.P.C.
The law laid down in the judgments referred by the counsel for the petitioner, in short, is that the Courts, in order to do justice in the case are empowered to take notice of any subsequent event and even though there was no specific provision conferring power on the Revisional Court to admit additional evidence but as there was no prohibition on the Revisional Court to admit additional evidence, therefore, in exercise of its inherent powers, the Court can admit additional evidence. In this respect the relevant observations of this Court in Shekhar Bahuguna (Supra) are reproduced below :-
"So far as legal position is concerned, both the counsel for the parties relied upon a Division Bench judgment of this Court in Babu Ram Vs. A.D.J., 1983 (1) ARC 15. In this very case, the question regarding the jurisdiction of a revisional Court to admit additional evidence while hearing the revision under section 25 of the Provincial Small Cause Courts Act was referred for decision to a larger Bench. This Court examined Order 41 Rule 27 C.P.C which deals with the power of Appellate Court to take additional evidence in appeal as also the other provisions as applicable to the Small Cause Courts Act and also the fact that the Order 41 Rule 27 C.P.C has not been made applicable to such proceedings. The learned senior counsel for the tenant laid emphasis on para 11 of the judgment which according to him permits the revisional court to take additional evidence on record. For the sake of convenience, the said paragraph is reproduced below:-
"After a review of the various provisions of the Provincial Small Cause Courts Act and the Code of Civil Procedure, we find that there is no prohibition contained in either of the two enactments expressly or impliedly providing for the bar of admitting additional evidence. What Order L Rule 1 (b) did by excluding Order XLI was only that this provision will not apply to revisions. But, the fact that Order XLI Rule 27 has been excluded does not lead to the conclusion that the Court cannot in exercise of its inherent power admit additional evidence when the ends of justice requires the same to be done."
A meaningful reading of the aforesaid judgment would show that notwithstanding the exclusion of provision of Order 41 Rule 27 C.P.C in exercise of revisional jurisdiction a revisional Court in exercise of its inherent powers may admit additional evidence when the ends of justice require the same to be done. Meaning thereby in appropriate cases depending on facts and circumstances of the case of a particular case the Court in exercise of its inherent power may permit a party to file additional evidence. In this regard, a reference was also made to a decision in the case of Smt. Gayatri Devi and others Vs. Additional District Judge, 1992 (1) ARC 148 wherein also it has been laid down that the revisional Court should look into the matter whether additional evidence is necessary for doing justice between the parties or not."
(Emphasis added) In view of the above, the application, i.e., Paper 22Ga filed by the petitioner to bring on record the order dated 10.11.2017, was maintainable and the order passed by the A.D.J. dismissing Paper 22Ga is contrary to law and is liable to be set aside. Consequently, the petition under Article 227 of the Constitution of India is liable to be allowed. The order dated 23.2.2018 passed by the Additional District Judge, court No. 2, Kaushambi, i.e., respondent No. 1 is hereby set set aside. The matter is remanded back to the Revisional Court to pass fresh orders on Paper 22Ga filed by the petitioner in light of the observations made in the judgement within a period of two weeks from the date a certified copy of this judgement is produced before it.
With the aforesaid direction, the petition is allowed.
Order Date :- 19.9.2018/Anurag/-