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2010 DIGILAW 407 (ORI)

BIDESHI SETHI v. MONALISA DAS

2010-06-23

R.N.BISWAL

body2010
JUDGMENT : R.N. Biswal, J. - The petitioner has challenged the judgment dated 27.10.2008 passed by the learned District Judge, Ganjam-Gajapati, Berhampur in Election Appeal No. 7 of 2007 confirming the judgment dated 11.9.2007 passed by the learned Civil Judge (Junior Division), Berhampur in Election Petition No. 4 of 2007 wherein he allowed the Election Petition and declared the election of the petitioner to the office of Sarpanch of Luhajhar Grama Panchayat under Rangeilunda Block as null and void and further declared that respondent No. 1, Smt. Monalisa Das was Sarpanch of the aforesaid G.P. 2. Election to the office of Sarpanch of Luhajhar Grama Panchayat was notified to be held on 19.02.2007. The petitioner and the opp. party No. 1 contested the election. The petitioner having secured highest number of votes was declared elected as Sarpanch of the said G.P. Being aggrieved with such declaration, opp. party No. 1 filed Election Petition No. 4 of 2007 before the learned Civil Judge (Junior Division), Berhampur (hereinafter referred as Election Tribunal) on several grounds including the ground that Pankaj Kumar Sethi, the third child of the petitioner was born after the cut-off date, i.e., on 22.11.1995 and prayed to declare the said election as void and to further declare that she has been duly elected as Sarpanch of Luhajhar G.P. In his counter, petitioner admitted to be the father of Pankaj Kumar Sethi, but stoutly denied that he was born on 22.11.1995. According to him Pankaj Kumar Sethi was born on 28.1.1994. On the basis of the pleadings of the parties, the Election Tribunal framed seven issued. In order to establish her case, opp. party No. 1 examined three witnesses including herself as P.W. 3, while petitioner examined four witnesses including himself as D.W. 1. Besides oral evidence, opp. party No. 1 exhibited six documents and the petitioner exhibited two documents. After assessing the evidence both oral and documentary, the Election Tribunal allowed the election petition holding that Pankaj Kumar Sethi, the third child of the petitioner was born on 22.11.1995 and as such he was disqualified u/s 25(1)(v) of the Orissa Grama Panchayat Act, 1964 as amended in the year, 1994, vide judgment dated 5.9.2007. Being aggrieved with the said judgment, the petitioner preferred Election Appeal No. 7 of 2007 before the District Judge, Ganjam-Gajapati, Berhampur, which was dismissed. Hence the present writ petition. 3. Being aggrieved with the said judgment, the petitioner preferred Election Appeal No. 7 of 2007 before the District Judge, Ganjam-Gajapati, Berhampur, which was dismissed. Hence the present writ petition. 3. Learned counsel appearing for the petitioner submitted that Ext.A, the birth certificate of Pankaj Kumar Sethi, showing his date of birth as 28.1.1994 having been issued by the competent authority, i.e, Registrar of Births and Deaths and Medical Officer-in-charge of Kellupalli P.H.C., the Election Tribunal ought to have held that he was born 'before the cut off date and as such the petitioner was not disqualified to continue as Sarpanch. The appellate Court without going deep into the matter, in a slip shod manner, dismissed the appeal and confirmed the judgment passed by the Election Tribunal. Hence, learned counsel for the petitioner prayed to allow the writ petition. 4. On the contrary, learned counsel appearing for the opp. party No. 1 contended that Ext. 1/a, the birth certificate of Pankaj Kumar Sethi shows that he was born on 22.11.1995. Ext. 1, the relevant entry in Birth and Death Registrar of Kellupalli P.H.C. of the year 1995, confirms the same. Ext.A was obtained after the notification was made for election to the office of Sarpanch of Luhajhar G.P., as such, it not being a contemporaneous document, the Election Tribunal rightly allowed the election petition and the appellate Court did not commit any illegality in confirming the judgment of the Election Tribunal. 5. P.W. 1., the dealing assistant of Kellupalli P.H.C. produced the Births and Deaths Registrar of that P.H.C. in respect of the year 1995. According to him he was in-charge of the said Register which was being maintained in ordinary course of official business. According to him the relevant entry, i.e., Serial No. 2123 dated 1.12.1995 shows that pankaj Kumar Sethi was born to Bidesi Sethi (petitioner) through Golapi Sethi on 22.11.1995. On the other hand, it transpires from the evidence of D.W. 1, the petitioner that he filed a petition u/s 10(3) of the Registration of Births and Deaths Act, 1969, before the Sub-Collector, Berhampur which was registered as Misc. Case No. 28 of 2007 on 5.1.2007 to issue instruction to the Registrar of Births and Deaths and Medical Officer, Kelupalli P.H.C. to register the date of birth of Pankaj Kumar Sethi as 28.1.1994 and to issue a certificate in that regard. Case No. 28 of 2007 on 5.1.2007 to issue instruction to the Registrar of Births and Deaths and Medical Officer, Kelupalli P.H.C. to register the date of birth of Pankaj Kumar Sethi as 28.1.1994 and to issue a certificate in that regard. The Executive Magistrate without making thorough inquiry, on the same date directed the Registrar Births and Deaths, Kelupalli P.H.C. to registrar the date of birth of Pankaj Kumar Sethi as 28.1.1994. Accordingly, he registered it and issued Ext.A. As per Section 13(3) of the Registration of Births and Deaths Act, 1969, any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death of the person concerned and on payment of the prescribed fee. In other words, if the birth or death of a person has been registered within time, further registration is not required. In the instant case, as found from Ext. 1, the date of birth of Pankaj Kumar Sethi was registered on 1.12.1995 showing his date of birth as 22.11.1995. So there was no need of adopting the procedure u/s 13(3) of the Registration of Births and Deaths Act, 1969 and again registering his date of birth. Furthermore, Ext. 1/a being a contemporaneous document should be preferred to Ext.A. In the decision Shri Darasongh Kumbhar v. State of Orissa and others 2005 (Supp.) OLR 623, a Division Bench of this Court held as follows: We also find that the birth certificates produced by the petitioner issued u/s 17 of the Registration of Births and Deaths Act, 1969 were prepared after the petitioner filed application before the Sub-Collector in the year, 2001, indicating the dates of births of his children and making a prayer to direct the Medical Officer, P.H.C., Maikenpali to register the dates of births of the children of the petitioner as furnished by him. The said birth certificates, therefore, are on the basis of self-serving statement of the petitioner and the Sub-Collector, Sonepur issued the direction on mere application of the petitioner without any enquiry whatsoever. We, therefore, find no illegality in the conclusion of the learned Addl. District Judge in holding that Exts. The said birth certificates, therefore, are on the basis of self-serving statement of the petitioner and the Sub-Collector, Sonepur issued the direction on mere application of the petitioner without any enquiry whatsoever. We, therefore, find no illegality in the conclusion of the learned Addl. District Judge in holding that Exts. C.D. and E cannot be relied upon and the dates of births of the children of the petitioner cannot be accepted to be the correct dates. In view of this decision Ext.A cannot be relied upon. 6. Moreover, besides proving the date of birth of Pankaj Kumar Sethi through P.W. 1 on the basis of Births and Deaths Register of Kellupalli P.H.C., opp. party No. 1 proved his date of birth through P.W. 2, the Headmaster of Sitapali Project U.P. School on the basis of School Admission Register for the year 1993-2004; serial No. 1553/ 13 of which shows that Pankaj Kumar Sethi took admission in Class-1 on 27.6.2001 showing his date of birth as 14.5.1996. P.W. 2 specifically deposed that Bidesi Sethi (petitioner), got Pankaj Kumar Sethi admitted in the school and signed in the Admission Register vide Ext. 3. Even though during examination in chief the petitioner denied to have signed on the admission register, during cross-examination he admitted to have signed on it. But according to him by that time, the column meant for date of birth was not filled up, which appears to be false. As per Ext. 1 and 1/a the date of birth of Pankaj Kumar Sethi was 22.11.1995, but in the School Admission Register his date of birth has been mentioned as 14.5.1996. So, the age of Pankaj Kumar Sethi has been reduced by 5 months 22 days in the School Admission Register. Generally, the guardians reduced the age of their wards while taking their admission. So, on the basis of Ext. 1 and 1/a, the Election Tribunal rightly held that the date of birth of Pankaj Kumar Sethi was 22.11.1995. The petitioner having begotten a 3rd Child after the cut-off date, he was disqualified u/s 25(1)(v) of the Orissa G.P. Act to continue as Sarpanch. 7. So, in my considered opinion, the Election Tribunal rightly allowed the Election Petition and declared the election of the petitioner null and void. Since opp. The petitioner having begotten a 3rd Child after the cut-off date, he was disqualified u/s 25(1)(v) of the Orissa G.P. Act to continue as Sarpanch. 7. So, in my considered opinion, the Election Tribunal rightly allowed the Election Petition and declared the election of the petitioner null and void. Since opp. party No. 1 secured 2nd highest number of votes, the Election Tribunal also rightly declared her to be the Sarpanch of Luhajhar G.P. The appellate Court did not commit any illegality in confirming the judgment of the Election Tribunal. 8. In the result, the writ petition stands dismissed being devoid of merit. 9. No cost. Final Result : Dismissed