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2008 DIGILAW 66 (CAL)

Asura Bibi v. Setara Bibi

2008-01-18

S.P.TALUKDAR

body2008
Judgment S.P. Talukdar, J. The petitioner by filing the instant application under Article 227 of the Constitution has sought to assail order No. 62 dated 11th September, 2006 passed by the learned Civil Judge, 2nd Court (Jr. Divn.), Malda in Misc. Case No. 23 of 2003. The said Misc. case arose out of an application under Section 204 of the West Bengal Panchayat Act, 1973. The O.P. No. 1, as petitioner, before the learned Trial Court, challenged the election of the O.P. No.1 in respect of seat No. 9, Gangaprasad Gram Panchayat under Kaliachak P.S. and sought for a declaration that such election was void. It was claimed that the present petitioner did not attain the age of 21 years and as such, she could not be so elected as the Member of the Gram Panchayat. It was further alleged that attention of the concerned authority was drawn to this but to no avail. The present O.P. No.1, thus, prayed for declaring her as elected for the said seat, as she got the second highest vote. The petitioner herein denied the material allegations against her. She claimed that she had been duly elected from the said Gram Panchayat seat No.9 and, thus, prayed for dismissal of the application. The State, as O.P., before the learned Trial Court, also filed written objection. The allegations made in the application were denied. It was further stated that no objection relating to the age of the elected member was raised during the scrutiny of the nomination paper. Learned Trial Court on the basis of the pleadings formulated three points for determination. After taking into consideration all relevant facts and materials, learned Trial Court allowed the said application thereby declaring the election of the present petitioner as void and further declared O.P. No.1 as the elected candidate in respect of the seat No.9 as referred to earlier. Being aggrieved by the said judgment and order dated 11th September, 2006, the petitioner has approached this Court for necessary redress. It appears that this Court was earlier approached with a revisional application being C.O. No. 630 of 2006. It was disposed of by the learned Single Bench of this Court by order dated 27th July, 2006 with specific directions upon the learned Trial Court. It appears that this Court was earlier approached with a revisional application being C.O. No. 630 of 2006. It was disposed of by the learned Single Bench of this Court by order dated 27th July, 2006 with specific directions upon the learned Trial Court. The crux of the present controversy, thus, is whether the present petitioner was 21 years of age at the relevant time of scrutiny of the nomination paper. Three witnesses were examined on behalf of the O.P. No.1. Apart from herself, two other witnesses i.e. the Headmaster of the school and the clerk of the said school were examined as P.W.2 and P.W. 3 respectively. The Returning Officer was examined as a witness on behalf of the O.P./State. The present petitioner was examined as O.P.W. 2 and three other witnesses were examined in her support. The attendance register of A.G.J.S. High School as well as the Primary School leaving certificate were produced before the learned Trial Court. The voter list of 2003 indicated the age of the present petitioner as 19 years. Though the witness examined on behalf of the State deposed that the nomination paper of the present petitioner was accepted after due verification, the learned Trial Court observed that the Officers-in-Charge of such scrutiny in the election were not sufficiently vigilant. Learned Trial Court took into consideration the fact that the school register, Exhibit-4, clearly indicated that the date of birth was recorded as 1st July, 1987. Such recording was made on the basis of Primary School Transfer Certificate and the person, who made such entries in the register, was examined as P.W. 3. On behalf of the present petitioner, an amendment application was filed thereby changing the date of birth from 3.10.1981 to 10.3.1981. Learned Trial Court referred to the Marriage Certificate, Exhibit-D, while holding that it was clearly ‘interpolated and penned through’. The ration card, Exhibit-A and the voter list of the year 2004, Exhibit-C for good reasons could not inspire confidence of the learned Court. The voter list of the year 2004 was of little value in view of the fact that the controversy relating to election was raised in 2003. The ration card, Exhibit-A and the voter list of the year 2004, Exhibit-C for good reasons could not inspire confidence of the learned Court. The voter list of the year 2004 was of little value in view of the fact that the controversy relating to election was raised in 2003. The affidavit, which was filed on behalf of the present petitioner in support of her claim that she attained the age of 21 years at the relevant time, could not also be accepted as a proper piece of evidence and this was for good reasons. This is the backdrop of the present case. The question now arises as to how far this Court in response to an application under Article 227 of the Constitution can analyse the evidence on record. It cannot be denied that the jurisdiction under Article 227 of the Constitution is restrictive. It is to be invoked only to correct errors of jurisdiction. This does not, however, suggest that this Court can afford to remain indifferent when it finds that the approach made by the learned Trial Court while coming to a finding of fact was wrong or improper. In the case of K.K. Khaitan & Anr. Vs. Praveen Kumar Singh, as reported in AIR 2006 S.C. 1474 , the Apex Court held that the failure to render the necessary findings to support the order would also be a jurisdictional error liable to correction. Though not raised at the time of hearing, it is, perhaps, necessary to mention that Section 204 of the West Bengal Panchayat Act has since been repealed. The West Bengal Panchayat (Amendment Act, 2003) is an Act to amend the West Bengal Panchayat Act, 1973. It was published in the Kolkata Gazette Extraordinary, Part-III, No. 1163-L dated 14th July, 2003. By such amendment, Section 204 of the Municipal Act was omitted w.e.f. 14th of July, 2003. But Rule 74 of the West Bengal Panchayat (Election) Rules, 1974 very well accommodates the grievance as raised before the learned Trial Court. Much was submitted relating to the evidentiary value of the various documents which were produce before the learned Trial Court in support of the respective claims. An entry relating to date of birth made in the school register is no doubt relevant and admissible under Section 35 of the Indian Evidence Act. Much was submitted relating to the evidentiary value of the various documents which were produce before the learned Trial Court in support of the respective claims. An entry relating to date of birth made in the school register is no doubt relevant and admissible under Section 35 of the Indian Evidence Act. But the entry relating to the age of a person in school register is not of much evidentiary value in the absence of the material on which such entry was recorded. It clearly appears from the impugned judgment that the learned Trial Court took all such material aspects into effective consideration. Having regard to the nature of the controversy that the present petitioner was not eligible, as she did not attain the age of 21 years, it cannot be denied that it strikes the result of the election at its root. It certainly affects such election materially. In case the present petitioner was not eligible to contest the election, the entire complexion of the matter would have been different. It is clearly laid down that a person shall not be qualified to be a member of Gram Panchayat if he has not attained the age of 21 years on the date fixed for the scrutiny of nomination for an election. After giving due regard to the submissions made by learned Counsel for the parties and the materials available on record, it appears that there was absolutely nothing wrong in the approach made by the learned Trial Court. It was submitted on behalf of the present petitioner that since there had been no cross-examination on material point, the evidence-in-chief cannot be ignored. In this context, reference was made to the decision in the case of A.E.G. Carapiet Vs. A.Y. Derderian, as reported in AIR 1961 Cal. 359 . It was submitted that a party must put his case in cross-examination of witnesses of the opposite party and it is a rule of essential justice and not merely technical one. Deriving inspiration from the decision in the case of Birad Mal Singhvi Vs. Anand Purohit, as reported in AIR 1988 S.C. 1796 , it was submitted that to render a document admissible under Section 35, three conditions must be satisfied. The entry must be one in a public or other official book, register or record. It must be an entry stating a fact in issue or relevant fact. Anand Purohit, as reported in AIR 1988 S.C. 1796 , it was submitted that to render a document admissible under Section 35, three conditions must be satisfied. The entry must be one in a public or other official book, register or record. It must be an entry stating a fact in issue or relevant fact. And, it must be made by a public servant in discharge of his official duty specially enjoined by law. The Apex Court in the said case held that an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry relating to the age of a person in a school register is not of much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. On behalf of the present petitioner, it was then contended that since the attendance register does not bear the date of birth, so how could there be a date of birth in the registers/transfer certificate. The relevant entry showing the date of birth of the present petitioner as 1.7.1987 in the school register was on the basis of primary school transfer certificate. The person who recorded such entry was examined as P.W. 3. Such a piece of evidence does not deserve to be discarded and on the other hand, the Affidavit, the Marriage Certificate, the Voter list of the year 2004 or the Ration card which were sought to have been relied upon before the learned Trial Court, could not harmoniously combine so as to respond to the challenge thrown by the O.P. No. 1 as applicant before the learned Trial Court. When there is some documentary evidence of unimpeachable quality, a Court is not expected to be swayed by any oral evidence in that regard. In such circumstances, this Court finds it difficult to appreciate the grievances as ventilated on behalf of the petitioner. The order impugned does not seem to suffer from any such jurisdictional error, which justifies any interference by this Court. Accordingly, the present application being C.O. No. 3626 of 2006 fails and the same be dismissed.