Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 115 (ORI)

Sanjukta Mallik v. Bharati Sethi

2012-03-01

S.K.MISHRA

body2012
JUDGMENT S.K.Mishra, J. The petitioner, in this case, is the returned candidate for the post of Sarpanch of Srirampur Grama Panchayat, Kendrapara of the election held on 19.02.2007. She assails the confirming judgment and order passed by the District Judge, Cuttack in Election Appeal No.03 of 2010, decided on 12.05.2011, upholding the orders passed by the Civil Judge (Junior Division), Pattamundai in Election Misc. Case No.16 of 2007. In the said election Misc. Case the election of the petitioner, hereinafter referred to as ‘the returned candidate’, was declared void and illegal as she was disqualified to hold the said post under Section 25(1)(v) of the Orissa Grama Panchayats Act, 1964, hereinafter referred to as ‘the Act’. The opposite party, i.e. the election petitioner and the returned candidate along with two other candidates contested for the post of Sarpanch in Srirampur Grama Panchayat, which was held on 19.02.2007. In that election the returned candidate having polled the highest number of valid votes, was declared elected on 21.02.2007. The opposite party, then, filed an election petition before the Civil Judge (Junior Division), Pattamundai challenging her election on the ground that the returned candidate having begotten her fourth children on 21.02.1997, i.e. after the cut off date, has incurred disqualification under Section 25(1)(v) of the Act and also the vote polled by the opposite party having been improperly rejected in counting, the election of the returned candidate was illegal and invalid, and hence, she prays to declare the same to be void. 2. The returned candidate filed her written counter to the petition with the specific plea that Tanuj and Ranoj are not her sons, but the sons of her husband’s brother, and hence, she has no disqualification to contest the election. She also denied the plea of rejection of valid votes cast in favour of the opposite party-election petitioner. 3. On such pleadings, the learned trial judge framed nine issues. Out of which, the issue which remains to be considered in this writ petition is whether the opposite party is disqualified to contest the election on the ground of having more than two children on the date of filing of the nomination in view of Section 25(1)(v) of the Act. 4. Out of which, the issue which remains to be considered in this writ petition is whether the opposite party is disqualified to contest the election on the ground of having more than two children on the date of filing of the nomination in view of Section 25(1)(v) of the Act. 4. Learned counsel for the petitioner submitted that the findings recorded by the learned trial judge and the learned appellate judge are incorrect in view of non-consideration of certain documents and consideration of certain inadmissible evidence. It was contended that the finding of fact that the Ranoj, as the son of the returned candidate, is factually incorrect, and therefore, the findings have to be set aside. The learned counsel for the opposite party, on the other hand, contended that the findings recorded by the court of original as well as the appellate jurisdiction are not contrary to the materials available on record. 5. The law is now well settled that a court exercising writ jurisdiction should interfere with the findings recorded by the learned court, who has exercised original as well as appellate jurisdiction only if it finds that there is error with respect to the jurisdiction of the court. Secondly, any error of law if pointed out to have been committed by the court, whose order is under challenge, in exercising jurisdiction, the court shall also interfere with the order. Normally, a finding of fact, howsoever grave, it may be, is not to be interfered with by the High Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India. Appreciation of evidence like an appellate court is not within the realm of the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India but where it is shown that the court, whose order is under challenge, based his findings on no evidence or has admitted evidence, which are inadmissible and acted upon the same or has ignored admissible evidence while giving the findings of factual aspect of the case, this Court also should interfere with the findings recorded by the trial court. These silent features have to be kept in mind while dealing with cases of nature. 6. These silent features have to be kept in mind while dealing with cases of nature. 6. An examination of the evidence as well as the judgment impugned reveals that the court below has relied upon the fact that the entry in the School Admission Register was made primarily at the instance of the husband of the petitioner indicating that the petitioner and her husband to be the parent of the boy in question. It may be noted here that as far as the date of birth of Ranoj is concerned, it is pleaded to be on 21.02.1997, which is not in dispute. The dispute only relates to his parentage. Secondly, the learned court did not accept the correction of the entry made in the School Admission Register on the directions of the District Inspector of Schools on the ground that there is no basis for such a direction. Further more, it is seen that the husband of the returned candidate, who admitted the boy into the school, has not been examined to disown entry originally made with regard to the parentage. The brother-in-law of the returned candidate, who is stated to be father of the boy, namely, Ranoj has not been examined to prove that he in fact is the father of the boy and the petitioner and her husband are not the parents of that boy. The trial court further took into consideration that the correction of the date of birth by the order of the D.I. of Schools, Pattamunadai has been made on 11.01.2007, i.e. just before the election in question, which was held on 19.02.2007. 7. Originally, the entry in the School Register has been made on 08.07.2002 describing Uchhab and Sanjukta to be the parents of Ranoj in the School Register. Later on, the name of father and mother has been corrected to be Dattahari and Anita. The correction has been made on 12.01.2007 as per the order No.62 dated 11.01.2007 of the D.I. of Schools, Pattamundai. Such correction has been made much after publication of the notification for the election, which was made on 26.12.2006. Similarly the Exhibits B and C, which are the birth certificates of Tanuj Mallik and Ranoj Mallik on which the learned counsel for the petitioner placed much emphasis, has been obtained 13 and 9 years after the birth of Tanuj and Ranoj.. 8. Similarly the Exhibits B and C, which are the birth certificates of Tanuj Mallik and Ranoj Mallik on which the learned counsel for the petitioner placed much emphasis, has been obtained 13 and 9 years after the birth of Tanuj and Ranoj.. 8. While appreciating the evidence the Court must give important to those materials, which came into existence prior to the rising of cause of action. A document which came into existence after the cause of action arose, then such document should be viewed with suspicion. Such documents have far less probative value than the materials which have come into existence much prior to the time when the cause of action arose in this case. The learned trial court as well as appellate judge has taken into consideration the materials regarding the parentage of Ranoj, which came into existence at the first instance and though there has been an attempt to alter the same on the basis of some materials which came into existence after the cause of action arose, i.e. the notification regarding the election. This Court comes to the conclusion that the findings recorded by the learned trial court as well as the learned appellate court are correct and requires no interference. Moreover, it cannot be said that this is a finding of fact based on no evidence or based of evidence, which is not admissible or the same has not been recorded ignoring admissible evidence. Thus, finding no merit in the submissions made by learned counsel for the petitioner, this court comes to the conclusion that the judgment and order passed by the courts below do not require interference of this Court. Accordingly, the writ petition is devoid of merit and the same is dismissed.