Dhirendra Pandua Vs.
State of Orissa & Ors. [2008] INSC 1597 (19 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5743 OF 2008 (Arising
out of S.L.P. (C) No. 26226 of 2005) DHIRENDRA PANDUA -- APPELLANT VERSUS
D.K. JAIN, J.:
1.
Leave
granted.
2.
This
appeal, by special leave, is directed against the judgment and order dated 7th
October, 2005 rendered by the High Court of Orissa at Cuttack in W.P. (C)
No.12860 of 2004.
By the impugned
order, the High Court has dismissed the writ 1 petition, preferred by the
appellant assailing the decision of the Election Tribunal-cum-District Judge,
Balasore, passed under Section 38 of the Orissa Municipal Act, 1950 (for short
`the Act').
3.
The
appellant as well as respondent No.3 in this appeal, hereinafter referred to as
the complainant, were elected as Councillors of two different municipal wards
in the election held on 19th September, 2003 for the Notified Area Council.
Subsequently, on 30th
September, 2003, the appellant was also elected as the Chairperson of the
Municipal Council. On 15th October, 2003, the complainant filed an Election
Petition under Section 38 of the Act questioning the election of the appellant
as Councillor and Chairperson, on the ground that being a leprosy patient, he
had incurred disqualification under Sections 16(1)(iv) and 17(1)(b) of the Act
and, therefore, could not continue as such. It was alleged that the fact of his
being a leprosy patient even at the time of filing of nomination was also
suppressed by the appellant.
4.
The
appellant contested the petition. Denying the said allegations, it was stated
that as on the date of election as Councillor as also the Chairperson, he was
fully cured of the ailment and was, thus, qualified to contest the election. It
was also pleaded that the Election Petition was barred by limitation. The Election
Tribunal framed as many as five issues. The two main issues, with which we are
concerned, were: (i) whether the petition was barred by limitation and (ii)
whether the appellant is a leprosy patient and as such disqualified to contest
and hold the posts of a Councillor and Chairperson of the Municipality. Taking
into consideration the evidence led by both the sides and upon elaborate
discussion on the provisions of the Act, the Tribunal came to the conclusion
that the petition was not barred by limitation and hence maintainable and that
on the date of filing of his nomination and election to the office of
Councillor, the appellant was a leprosy patient and his status as a patient
still continues as there is no finality of the medical opinion that he has been
fully cured of the disease. Thus, the appellant was declared to be disqualified
under Sections 16(1) (iv) and 17(1) (b) of the Act, to be elected and to
continue as Councillor of the Municipality.
5.
Aggrieved,
the appellant unsuccessfully challenged the said decision in the High Court.
The High Court, affirmed the order of the Election Tribunal-cum-District Judge
on both the counts, namely, (i) Section 19 of the Act, prescribing the period
of limitation for presentation of the Election Petition was not applicable and
(ii) that the appellant was still suffering from risk prone leprosy. Aggrieved
thereby, the appellant has preferred this appeal.
6.
We
have heard learned counsel for the parties.
7.
Learned
counsel appearing on behalf of the appellant contended that the High Court has
committed manifest error of law in affirming the finding of the Election
Tribunal that the appellant was still suffering from leprosy. It was urged that
the said finding is patently perverse inasmuch as the Tribunal ignored the evidence
adduced by the appellant, in particular the medical certificates issued by the
doctors, certifying that the appellant was not suffering from leprosy on the
date of filing of the nomination. It was urged that the High Court as well as
the Election Tribunal have laid too much emphasis on the proceedings pending in
this Court, which have no relevance to the controversy at issue. It was also
asserted that the Election Petition was barred by limitation.
8.
Before
examining the stand of the appellant, it would be necessary to refer to the
relevant provisions of the Act.
Chapter III of the
Act deals with election of the Councillors to the Municipalities and the
Election Petitions. Sections 16, 17, 18, 19 and 38 are material for our purpose
and, therefore, for ready reference, the relevant parts thereof are extracted
below:
"16.
Disqualification of Candidates for election--(1) No person shall be qualified
for election as a Councillor of a Municipality if such person-- xx xx xx xx
(iv) has been adjudged by a competent Court to be of unsound mind or is a
leprosy or a tuberculosis patient; or xx xx xx xx
17. Disqualification
of Councillor:--(1) Subject to the provisions of Section 38, a Councillor shall
cease to hold his office, if he-- 5 xx xx xx xx (b)becomes of unsound mind, a
leprosy or a tuberculosis patient; or xx xx xx xx
18. Power to question
election by petition:--(1) The election of any person as a Councillor may be
questioned by election petition on the ground.
(a) xx xx xx xx (b)
xx xx xx xx (c) that such person though enrolled as elector was disqualified
for election under the provisions of Sections 15, 16 and 29.
(2) xx xx xx xx 19.
Form and presentation of petition:
--(1) The petition
shall be presented before the District Judge, together with a deposit of two
hundred rupees as security for cost within fifteen days, after the day on which
the result of the election was announced and shall specify the ground or
grounds on which the election of the opposite party is questioned and shall
contain a summary of the circumstances alleged to justify the election being
questioned on such grounds.
(2) The petition may
be presented by any candidate in whose favour votes have been recorded and who
claims to be declared elected in place of the person whose election is
questioned, or by twenty five or more electors of the Ward.
6 (3) xx xx xx xx
38. District Judge to
decide question of disqualification of Councillors:--(1) Whenever it is alleged
that any person, who has been elected as Councillor is disqualified under
Section 16 or 17 and such person does not admit the allegation or whenever any
Councillor himself is in doubt, whether or not he has become qualified for
office under Section 16 or 17, such Councillor or any other Councillor may, and
the Chairperson at request of the Municipality shall apply to District Judge of
the district in which the Municipal area is situated.
(2) The said Judge
after making such inquiry as he deems necessary shall determine whether or not
such person is disqualified under Section 16 or 17 and his decision shall be
final (3) Pending such decision, the Councillor shall be entitled to act as if he
were not disqualified."
1.
2.
3.
4.
5.
6.
7.
8.
9.
Section
16 of the Act provides for disqualification of candidates for election as a
Councillor of a Municipality. It enumerates the grounds on which a person shall
be regarded as disqualified for election. Clause (iv) of Sub-section (1) of
Section 16 of the Act envisages that no person shall be qualified for election
as a Councillor of a Municipality if he has been adjudged by a Competent Court
to be of unsound mind or is a leprosy or a tuberculosis patient. Similarly, like
Section 16, Section 17 enumerates certain grounds on which a Councillor would
become disqualified to hold office but the said provision has been made subject
to the provisions of Section 38 of the Act. Section 17(1)(b) lays down that a
Councillor shall cease to hold his office if he becomes of unsound mind, a
leprosy or a tuberculosis patient. Section 18 stipulates that the validity of
election of any person as a Councillor may be questioned by a petition on the
ground enumerated therein, one of them being that he was disqualified for
election under the provisions of Sections 15, 16 and 29. Section 19 lays down
the procedure for presentation of the Election Petition before the District
Judge.
The Election Petition
is required to be filed within 15 days after the date on which the result of
the elections was announced. It can be presented either by a rival candidate in
the same ward, who claims to be declared elected in place of the person whose
election is questioned or by a group of 25 or more electors of the ward, which
means that unless a candidate was a contestant against the person whose
election as a Councillor had been challenged, he cannot present the petition
singularly. Section 38 of the Act, which is the pivotal provision, vests
jurisdiction in the District Judge to decide the question whether the
Councillor has incurred disqualification on any of the grounds mentioned in
Sections 16 or 17 of the Act. But under Section 38, issue regarding
disqualification of a Councillor can be raised only by a Councillor and by no
other person.
10.
A
conjoint reading of the aforenoted provisions of the Act makes it clear that
Sections 18 and 38 operate in two independent fields. The scope of Section 18
is limited as compared to Section 38. An election dispute under Section 18 of
the Act can be raised only by a candidate who was contesting against the
Councillor whose election had been challenged or by a minimum of 25 electors of
the same ward, within 15 days from the date of declaration of the result of the
election whereas under Section 38 any elected Councillor of the Municipality,
irrespective of his constituency or the Chairperson, at the request of the
Municipality can present a petition to the District Judge of the District to
determine the question whether or not the person complained against has
incurred disqualification on any of the grounds enumerated in Sections 16 or 17
of the Act. From a bare reading of Section 38, it is clear that the Section is
wider in scope inasmuch as the issue of disqualification of a Councillor can be
raised not only on the grounds mentioned in Section 17 i.e. on the grounds
which come into existence after the person is elected as a Councillor, but also
on the grounds mentioned in Section 16, i.e. on the grounds which had made him
ineligible for election while he was a candidate i.e. before he came to be
elected as a Councillor. It is, therefore, manifest that when a question with
regard to the validity of election of a Councillor arises, it has to be dealt
with in accordance with the procedure prescribed under Section 19 of the Act.
However, when the question raised is as to whether or not the Councillor has
incurred any disqualification and thereby 1 ceased to hold the office, it has
to be referred and determined as per the procedure laid down in Section 38 of
the Act. It is axiomatic that the question of disqualification to hold an
office would arise at the stage posterior to the election i.e. after a person
is elected as a Councillor. The provision appears to have been made to ensure that
no Councillor, who has incurred disqualification on any of the grounds,
mentioned in Sections 16 and 17 of the Act, either prior to the election or
after the election at any time during the tenure for which he is elected should
be allowed to hold the office. Precisely for this reason, unlike in Section 19,
no period of limitation has been prescribed for presentation of a petition
under Section 38 of the Act to the District Judge.
11.
Having
noted the scheme of Chapter III of the Act, we may now advert to the facts at
hand. As noticed above, the Election Petition was filed by a Councillor elected
from a different ward, for a declaration that the appellant has incurred
disqualification under Sections 16 as well as 17 of the Act, on the ground that
he was and is a leprosy patient.
In our judgment, the
petition clearly fell within the ambit of Section 38 of the Act and in the
light of the legal position enunciated above, it was maintainable as such. We
are, therefore, in complete agreement with the Courts below that the
complainant's petition was not barred by limitation.
1.
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3.
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10.
11.
12.
Now,
coming to the merits of the Election Petition, it appears from the material on
record that, unfortunately, the appellant did suffer from leprosy. Therefore,
the question for adjudication before the Election Tribunal-cum-District Judge
was whether the appellant is still a leprosy patient and is, thus, disqualified
to hold the office as a Councillor? 13.Leprosy is a chronic infectious disease
affecting mainly the skin and the nerves and was among the first infection to
be associated with a specific causative organism - Mycobacterium leprae. In
Sloane-Dorland Annotated Medical-Legal Dictionary, published some time in the
year 1987, the disease of leprosy has been explained thus:
"Leprosy, which
is also known as Hansen's disease, is a mildly infectious degenerative disease
caused by the 1 2 micro-organism Mycobacterium leprae.
13.
The
disease produces lesions in the skin, the mucous membranes, and the peripheral
nervous system. In its more advanced stage, it affects internal organs and
renders its sufferers vulnerable to other diseases such as diabetes and
cancer."
14.
14.Leprosy
has been a major health problem for man since time immemorial. Till recently it
was considered to be an incurable disease. Moreover, it not only leaves behind
a terrifying image of disfigurement, the patient and his family is ostracized
from the society.
15.
15.It
appears that the appellant was suffering from Multibacillary disease (for short
`MB'). According to the bulletin issued by the Indian Council of Medical
Research (for short `ICMR'), in February, 2002 MB patients when treated with
Multi-drug therapy (MDT) - a three drug combination, till smear negativity or
for two years, the results have generally been very satisfactory. The MB
patients treated and with regular follow up for over two to five years have
responded well with very few relapses. It is noted that the length of multi 1
drug therapy required or to be administered depends upon the aim, resources,
motivation of the individual and his availability for the follow up. Nevertheless,
the bulletin says that a few studies have shown that despite two years of
regular therapy; almost 10% patients continue to harbour viable persisters. It
is finally opined that it is essential that the patients be kept under follow
up for varying periods as they were not sure of the long term effects of the
multi drug therapy. Thus, it appears from the news report that despite various
measures, at the relevant time, relapse/reactivation of leprosy was not
completely ruled out and it depended on various factors, noticed above. It is,
however, heartening to note that in a news bulletin issued by the World Health
Organisation some time in the year 2006, it is claimed that India, which at one
point of time had a prevalence rate of leprosy as high as 57 per ten thousand
population, through its determined implementation of the National Leprosy
Eradication Programmes, has achieved its set goal of Elimination of Leprosy as
Health Problem; perhaps short of Eradication.
16.
16.Bearing
in mind the aforenoted facets of the leprosy disease and the advances made in
its treatment therapies, we now proceed to examine, whether the findings of the
District Judge, affirmed by the High Court, to the effect that the appellant
has not been fully cured of leprosy and is still affected by the said disease,
suffers from any apparent infirmity warranting interference. For the
determination of this primarily factual issue, it would be necessary to delve a
little deeply into the factual aspects of the matter which have weighed with
the District Judge as well as the High Court in deciding the issue against the
appellant.
17.
17.As
noted above, the stand of the complainant was that the appellant was a leprosy
patient and his status as such has been continuing even prior to the date of
election, which is evidently borne out from the fact that he had himself
approached this Court, soliciting directions to the State Health Authorities to
conduct requisite medical investigations and tests on him and "to issue
him a certificate on finding him cured and fit so as to obviate his disability
arising out of the disease" and that the said matter is still pending. In
the reply affidavit before the District Judge, the initial stand of the
appellant was that he was never a leprosy patient. Accordingly, the District
Judge framed issues and permitted the parties to lead evidence in support of
their respective stands. On an elaborate analysis of the evidence, so led by
both the sides, the District Judge came to the conclusion that the appellant
was still suffering from risk prone leprosy. In arriving at the said finding,
the District Judge, has relied on the following material/circumstances:
(i) Once upon a time,
the appellant was working as a para legal worker under the Government of West
Bengal and being a leprosy patient he received treatment whereafter he remained
bacteriologically negative for three consecutive examinations and declared fit
to resume his duties in Government service with a further advice to appear for
further periodical check up at intervals of three months for one year and for
further check up at intervals of six months for five years. However, since
further 1 6 periodical check ups were not conducted, the appellant moved this
Court for directions to the State Health Authorities to conduct periodical
investigations and tests of leprosy patients including the appellant.
(ii) In his
testimony, the appellant has stated that he has privately undergone tests under
Dr. P.C. Rath, Cuttack and has also been examined by some doctors at Bhadrak
who found no leprosy in him. A certificate (Ext.A) dated 20th August, 2003 was
also produced by him. In his cross- examination, he conceded that he had filed
petitions in this Court on behalf of a leprosy organisation, wherein he had
filed an affidavit admitting to be a leper but only with a view to secure a
job.
(iii) Exhibit 11 is a
letter dated 23rd May, 2003 issued by the Joint Director of Health Services
(Leprosy/TB), Orissa to the Chief District Medical Officer, Balasore with a
list of 46 leprosy patients for their bacteriological investigations and to
submit progress report for onward 1 7 transmission to this Court. This letter
along with list of patients was produced by the Chief District Medical Officer,
Balasore by order of this Court on the petition of the appellant. The list of
patients accompanying the said letter includes the name of the appellant at
serial No.3.
(iv) On 7th April,
2003 the appellant had himself written to the Chief District Medical Officer
for implementation of order dated 20th February, 2003 passed by this Court,
inter alia, stating on affidavit that he had made a specific prayer before this
Court for four time bacteriological investigations with subsequent follow up
actions and that despite direction of this Court, no investigations had been
conducted. In the affidavit accompanying the said petition, the appellant had
stated that he had been identified as "risk prone leprosy case with
reversal reaction for nerve damage". It was stated that he was undergoing
severe nerve and joint pains:
poly arthritis,
accompanied by high sweat 1 8 and fever. In the `affidavit, the appellant had
complained that the medical authorities have neither undertaken the required
nerve function assessment nor adopted specific Flow Chart and even life saving
drugs were not being supplied to him to prevent occurrence of any leprosy
disability and unnatural death.
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18.
Accordingly,
the District Judge held that the averments in the affidavit go to show that the
appellant was still suffering from leprosy and that the order of this Court
directing bacteriological and other tests etc. had not been conducted on the
appellant. The District Judge, accordingly, concluded that at least by 20th
March, 2004, on which date the State Government had filed an affidavit before
this Court, complete investigations, tests and treatments in respect of the
leprosy patients, including the appellant, had not been conducted and,
therefore, the patients included in the list filed before this Court, including
the appellant, were not fully cured of leprosy.
19.
Having
bestowed our anxious consideration to the matter, we are of the opinion that
none of the aforenoted circumstances taken into consideration by the District
Judge, can be said to be either irrelevant or not germane to the issue for
determination so as to warrant interference of this Court.
It is trite that
under Article 136 of the Constitution this Court does not ordinarily
re-appraise evidence for itself nor determine whether or not the High court has
come to a correct conclusion on facts. It is only where the High Court has
completely missed the real point requiring adjudication or has missed or
ignored the relevant material this Court would be justified in going into the
evidence for the purpose of satisfying itself that grave injustice has not
resulted in the matter, which is not the case here. It is perceptible that on
appellant's own showing that he was having some doubts about at least the
reactivation of the disease and had to approach this Court for appropriate
directions to the concerned authorities for providing adequate facilities for
periodical check ups including bacteriological tests and issue of fitness
certificate. Thus, the District Judge as also the High Court was justified in
coming to the conclusion that on facts obtaining at the relevant time, the
appellant had not been fully cured of leprosy. We are unable to accept the stand
of the appellant that his affidavit filed in this Court, detailing the past and
present status of his health, was only meant for a limited purpose of securing
a job.
Such a plea deserves
to be deprecated. We are, thus, of the opinion that the High Court was correct
in law and on facts in affirming the decision of the District Judge.
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20.
Before
closing the case, we may mention that in this appeal, a new ground has been
urged, namely, that the provisions of Section 16 and 17 of the Act are
discriminatory and, thus, violative of Article 14 of the Constitution. During
the course of hearing, without much elaboration, learned counsel for the
appellant faintly referred to the said ground. In our opinion, this contention
is also untenable. It is well settled that Article 14 forbids class
legislation; it does not forbid reasonable classification for the purpose of
legislation. Nonetheless, that classification should not be arbitrary but must
rest upon some real and substantial distinction bearing reasonable and 2 just
relation to the things in respect of which the classification is made. To
satisfy the Constitutional test of permissible classification, two conditions
must be satisfied, namely: (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group; and (ii) that such differentia must
have a rational relation to the object sought to be achieved by the statute in
question. (See: Shri
21.
In
the instant case, the impugned classification is that those persons who have
been or have become of unsound mind or leprosy or tuberculosis patients are
disqualified from either contesting for the post of a Councillor in the
Municipality or continuing as such after election. The obvious object and the
purpose sought to be achieved by the said restriction appears to be that being
a contagious disease, it 1 [1959] 1 S.C.R. 279 2 (1978) 2 SCC 1 3 (2003) 8 SCC
369 2 can be transmitted via droplets from the nose and mouth during close and
frequent contacts with untreated infected persons, therefore, the other elected
Councillors or the members of the public with whom they are required to have
day-to-day close contact as Municipal Councillors, may also get affected by the
disease. It is true that now with aggressive medication a patient may be fully
cured of the disease, yet the Legislature in its wisdom has thought it fit to
retain such provisions in the statute in order to eliminate the danger of its
being transmitted to other people from the person affected by the disease.
Having regard to these circumstances, we are convinced that the said
classification does bear a reasonable and just relation with the object sought
to be achieved by the statute in question and cannot be said to be unreasonable
or arbitrary. Accordingly, we hold that Sections 16(1)(iv) and 17 (1)(b) of the
Act are not violative of Article 14 of the Constitution.
22.
Before
parting with this case, we deem it appropriate to point out that having regard
to the changed concept and 2 knowledge gained about the disease of leprosy, on
the recommendation of the Working Group on Eradication of Leprosy, appointed by
the Government of India, many State Governments and Union Territories have
repealed the antiquated Lepers Act, 1898 and subsequent similar State Acts,
providing for the segregation and medical treatment of pauper lepers suffering
from infectious type of disease.
Therefore, keeping in
view the present thinking and researches carried on leprosy as also on
tuberculosis, and with professional input, the Legislature may seriously
consider whether it is still necessary to retain such provisions in the
statutes.
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23.
For
the foregoing reasons, we do not find any infirmity or illegality in the
impugned judgment warranting interference.
The appeal, being
devoid of any merit, is dismissed accordingly, but without any costs.
................................................J.
(C.K. THAKKER)
.................................................J.
(D.K. JAIN)
NEW
DELHI;
SEPTEMBER
19, 2008.
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