REPORTABLE

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

STATE OF ORISSA & ORS. — RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

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

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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.

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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)

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(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

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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—

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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.

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(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

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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

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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

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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

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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.

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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

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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

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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.

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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”

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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

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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

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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

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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.

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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

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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

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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

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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

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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)  

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                              ..….…………………………………….J.   (D.K. JAIN)

NEW DELHI; SEPTEMBER 19, 2008.

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