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2006 DIGILAW 695 (ORI)

DAMBURU MAJHI v. TARINI CHARAN MAJHI

2006-10-09

I.M.QUDDUSI, N.PRUSTY

body2006
JUDGMENT : I.M. Quddusi, J. - This writ petition has been preferred against the order dated 27.2.2003 passed by the Additional District Judge, Nabarangpur in Election Appeal No. 2 of 2003 dismissing the appeal and upholding the order of the Civil Judge (Junior Division), Nabarangpur dated 18.12.2002 passed in an election petition registered as MJC No. 9 of 2002 declaring the election of the petitioner as Sarpanch of Bamuni Grama Panchayat under Kosagumuda Block of Nabarangpur District as invalid abinitio. 2. The brief facts of the case are that the opposite party-Tarini Charan Majhi filed an election petition before the Civil Judge (Junior Division), Nabarangpur challenging the election of the petitioner to the office of Sarpanch of Bamuni Grama Panchayat in the Panchayat election held in the year 2002, inter alia, on the ground that the petitioner on the date of filing of his nomination was not qualified u/s 11 of the Orissa Grama Panchayat Act as he was unable to read and write Oriya, but in spite of objection before the Election Officer, his nomination paper was accepted. 3. With other issues the Learned Civil Judge framed issue No. 1 that "Whether on the date of filing nomination papers the opposite party was able to read and write Oriya". The opposite party of the instant writ petition produced himself as P.W. 1 and stated that he and the instant writ petitioner both had filed their nomination papers on 22.01.2002 and during scrutiny he raised objection to the effect that the instant petitioner was unable to read and write Oriya but the objection was over ruled. Cross-examination was made on behalf of the instant petitioner in which he stated that the instant petitioner was able to sign. The instant petitioner examined himself as O.P.W. 1 and denied the fact that he was unable to read and write Oriya. The Orissa Panchayat Samiti Rules (Oriya Edition) were shown to him and he read page No. 19 of the same. The Learned Civil Judge noticed several mistakes committed by him which fact was mentioned in the order-sheet dated 02.11.2002. The relevant portion of the said book was marked by him as Ext. I. The instant petitioner was also asked to write down a paragraph of the Orissa Panchayat Samiti Rules (Oriya Edition) from page No. 19. The Learned Civil Judge noticed several mistakes committed by him which fact was mentioned in the order-sheet dated 02.11.2002. The relevant portion of the said book was marked by him as Ext. I. The instant petitioner was also asked to write down a paragraph of the Orissa Panchayat Samiti Rules (Oriya Edition) from page No. 19. Though he wrote the same, the Learned Civil Judge found several mistakes which fact was also mentioned in the order-sheet dated 02.11.2002. Therefore, the Learned Civil Judge in his impugned judgment observed that on a bare reading of the written portion of the instant petitioner one can easily presume that in fact he had no knowledge of writing Oriya language and accordingly, he held that the elected candidate was not able to read and write Oriya at the time of filing of nomination paper and therefore declared the election of the petitioner was invalid abinitio. He also directed that the casual vacancy created in the office of Sarpanch of that Grama Panchayat be filled up by following due process of law. 4. In the appeal also the Learned Additional District Judge, Nabarangpur discussed the evidence led by the respective parties and went through the writings "Ext. B." written by the petitioner and found that the writing of the petitioner did not carry any meaning. The signatures which the petitioner had left on the body of the same appeared to have been put with much difficulty. Reading and writing of Oriya language is mandatory for every prospective candidate in the Panchayat election. In view of Section 11 of the Orissa Grama Panchayat Act which provides that no member of a Grama Sasan shall be eligible for a Sarpanch if he is unable to read and write Oriya. 5. There is a catena of decisions of the Hon'ble apex Court that in case there is a concurrent findings of the Courts below, the High Court in exercise of its powers under Article 227 of the Constitution of India cannot interfere unless the findings are perverse. In the case of AIR 1975 1297 (SC) the Hon'ble apex Court has held that it is not open to the High Court to question the propriety or the reasonableness of the conclusions drawn from the evidence by the District Court. In the case of AIR 1975 1297 (SC) the Hon'ble apex Court has held that it is not open to the High Court to question the propriety or the reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a Court of appeal and examine the correctness of the findings of fact arrived at by the District Court. 6. In the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, the Hon'ble apex Court has held that the High Court should not interfere with a finding within the jurisdiction of the inferior tribunal or Court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above the High Court has no jurisdiction. 7. In the case of Mani Nariman Daruwalla and Bharucha (Deceased) through LRs. and Ors. v. Phiroz N. Bhatena and Ors. AIR 1991 SC 1494 , the Hon'ble apex Court has held that: Was the High Court justified in taking this view and in upsetting the finding recorded by the Appellate Bench? While considering this question it has to be borne in mind that the High Court was exercising its jurisdiction under Article 227 of the Constitution of India. In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior Court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or tribunal who has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings of fact See Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram. Applying these tests we are unable to persuade ourselves to hold that the findings recorded by the Appellate Bench suffer from such an infirmity so as to justify interference with the said finding under Article 227 of the Constitution. 8. Ashalata S. Guram. Applying these tests we are unable to persuade ourselves to hold that the findings recorded by the Appellate Bench suffer from such an infirmity so as to justify interference with the said finding under Article 227 of the Constitution. 8. In the case of Khimji Vidhu v. Premier High School (1999) SCC 264 the Hon'ble apex Court has again taken the similar view which has been taken in the above mentioned, judgment that the findings of fact cannot be interfered with by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India and jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an Appellate Court only. 9. In the case of Mohan Amba Prasad Agnihotri and Others Vs. Bhaskar Balwant Aher (D) Through I.Rs., the Hon'ble apex Court has held that it is the settled law that the jurisdiction of the High Court under Article 227 is not Appellate but supervisory. It cannot interfere with a finding of fact recorded by lower Court/Tribunal unless there is no evidence to support the finding or the finding is perverse. 10. In view of the concurrent finding of fact recorded by both the Courts below that the petitioner was not able to read and write Oriya at the time of filing of his nomination paper, there is no scope for this Court to interfere with the same. In the result, the writ petition is dismissed. No order as to costs. N. Prusty, J. 11. I agrre. Final Result : Dismissed