Dhirendra Pandua vs State Of Orissa & Ors

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

4 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."

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

7 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

8 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

9 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 0 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.

1 1 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.

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.

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.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.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 3 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.

1 4

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.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"

1 5

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.

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.

1 9

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

2 0 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.

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 1 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

Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar &

Ors.1, Pathumma & Ors. Vs. State of Kerala & Ors.2,

Javed & Ors. Vs. State of Haryana & Ors.3)

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 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 3 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.

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)

2 4 .................................................J. (D.K. JAIN) NEW DELHI;

SEPTEMBER 19, 2008.

2 5