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2006 DIGILAW 127 (ORI)

Bansidhar Mallik v. Jhunu Mallik

2006-02-14

A.K.PARICHHA, P.K.TRIPATHY

body2006
ORDER 14.02.2006 Heard. 2. Petitioner has filed this writ petition challenging the judgment dated 27.07.2005 passed in Election Appeal No.6 of 2004 (Election Appeal No.6 of 2003 GDC) by learned Adhoc Addl. Dis¬trict Judge (Fast Track), Aska confirming the judgment passed by learned Civil Judge (Jr. Division), Surada in M.J.C. No.9 of 2002 declaring the election of the petitioner to the office of Sar¬panch of Gopalpur Sasan Grama Panchayat as void. 3. The facts and circumstances leading to filing of the present writ petition are as follows :- Election to the office of the Sarpanch of Gopalpur Sasan Grama Panchayat in the district of Ganjam was held in the year 2002. Petitioner, opposite party No.1 and three other candidates filed nomination papers and contested that election. Petitioner was declared elected having secured the maximum number of votes. After the result of the election was declared and the petitioner was inducted as Sarpanch of said Gram Panchayat, opposite party No.1 filed election dispute vide M.J.C. No.9 of 2002 before learned Civil Judge (Jr. Division), Surada under Section 31 of the Orissa Grama Panchayat Act, 1964 (in short ‘the Act’) to declare the election of the petitioner as void basically on the ground that petitioner indulged in corrupt practice in securing the votes and that he was ineligible to contest the election having more than two children on the date of filing of nomina¬tion. Petitioner contested the said election case claiming inter alia that he never indulged in any corrupt practice in securing the votes and he never had more than two children on the date of filing of the nomination. Parties produced oral and documentary evidence in support of their respective plea. In fact, six wit¬nesses were examined and three documents were produced by oppo¬site party No.1 in support of the allegations and four witnesses were examined by the petitioner to disprove the said allegation. Learned Civil Judge (Jr. Division) after considering those evi¬dence, came to hold that the allegation of corrupt practice in securing votes was not established, but the allegation that petitioner had four children on the date of filing of the nomina¬tion was established. He accordingly held that petitioner was disqualified from holding the post of Sarpanch in view of the bar contained in Section 25 (1)(v) of the Act. He accordingly held that petitioner was disqualified from holding the post of Sarpanch in view of the bar contained in Section 25 (1)(v) of the Act. Consequently he held the election of the petitioner as Sarpanch of Gopalpur Sasan Gram Panchayat as void and declared a casual vacancy. Aggrieved by the said order, petitioner filed Election Appeal before the district Court alleging that learned Civil Judge (Jr. Division), Surada based his finding on inadmissible and unreliable evidence. Learned Ad hoc Addl. District Judge (Fast Track), Aska after hearing the parties dismissed the appeal and confirmed the order of learned Civil Judge. Petitioner has, therefore, filed the present writ petition for quashing the orders passed by the above said Courts. 4. Mr. Manoj Mishra, learned counsel appearing for the petitioner challenges the judgments of the Courts below mainly on the ground that the findings recorded by those Courts are contrary to the materials on record. He alleges that the Courts below relied on documents Exts.1 and 3, which were neither admissible nor reliable, and gave undue importance to the evi¬dence of P.Ws. 1 to 6 who were all interested witnesses. Mr. G.K. Behera, learned counsel appearing for opposite party No.1, on the other hand while supporting the impugned judgments, submits that Exts.1 to 3 being official records coming from proper custody are admissible and reliable documents and the contents of those documents are also supported by the evidence of P.Ws.1 to 6. According to him, when such documentary and oral evidences were not rebutted by the petitioner in any manner, the Courts below had every justification of coming to the conclusion that peti¬tioner had four children on the date of filing of the nomination for the election. Learned Government Advocate supported the argument of Mr. Behera. 5. At the out set it is worthwhile to indicate that Writ Court is not a Court of appeal and therefore it cannot re-assess the evidence and give its own findings on the issues substituting the findings of the Courts below. All that a writ Court should do is to examine the material on record in exercise of supervisory power under Article 227 of the Constitution of India to find out whether the Courts below exercised jurisdiction not vested in them or approached the subjects with unreasonableness and perver¬sity. All that a writ Court should do is to examine the material on record in exercise of supervisory power under Article 227 of the Constitution of India to find out whether the Courts below exercised jurisdiction not vested in them or approached the subjects with unreasonableness and perver¬sity. Keeping this principle in mind, we examine the submission of the learned counsel along with the materials on record. 6. Opposite party No.1 as the election petitioner and his five witnesses clearly and categorically stated that the present petitioner had four children, the last one of them taking birth on 22.01.2002, the very day of filing of the nomination paper for the Sarpanch election. It is worthwhile to note that the evidence of the P.Ws. were not discredited in the cross-examination. P.Ws.2 and 3 are ladies who have their parental house near the house of the petitioner and both claim that they assisted the A.N.M. (Health Worker) in conducting the delivery of Merry Mal¬lik, the wife of the petitioner, P.W.5 who is a Clerk of the U.G.P.H.C. and a Government Servant produced the Birth and Death Register for the year 2002 from the UGPHC, Buguda and proved the entry No.115, which speaks about the birth of fourth child of Mery Mallik on 22.01.2002. The A.N.M. (Health Worker) P.W.6 clearly stated that she is working as A.N.M. of Buguda UGPHC since 1996 and is attached to Gopalpur sub-center. She claimed that she conducted the delivery of fourth child of Merry Mallik on 22.01.2002 and gave this information in the P.H.C. and accord¬ingly entries were made in the Births and Deaths Register. She also claimed that before the birth of the child she had given vaccination to Mery Mallik under the Health Care Scheme and in this regard she proved the relevant entry, Ext.3. The birth certificate and the relevant entries Exts.2 and 3 clearly support the statements of P.Ws.1 to 6. The plea of the petitioner was that he never had more than two children. But he could not pro¬duce rebuttal evidence to disprove the official records and the statements of P.Ws.1 to 6 who stated before the Court that peti¬tioner had three sons and one daughter and also gave the age of the children. Petitioner and his witnesses basically stated that the A.N.M. (p.w.6) is not residing in village Gopalpur Sasan but staying in another village. Petitioner and his witnesses basically stated that the A.N.M. (p.w.6) is not residing in village Gopalpur Sasan but staying in another village. Besides the denial and this evidence, there is nothing from the side of the petitioner to rebut the evidence led by opposite party No.1. 7. When oral and documentary evidence is available in support of the allegations and basing on such evidence the Courts below recorded their findings, there is neither any scope to say that they over-stepped their jurisdiction nor it can be said that their findings are contrary to the materials on record. Since the findings of the Courts below are not laced with any illegality, perversity or unreasonableness, the same calls for no interference. Consequentially the writ petition is dismissed. Petition dismissed.