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2015 DIGILAW 166 (ORI)

Kunjalata Dang v. Gayatri Mahakur

2015-03-11

B.K.NAYAK

body2015
JUDGMENT : B. K. NAYAK, J. This writ application has been filed challenging the judgment dated 06.07.2013 passed by the learned District Judge, Sonepur in F.A.O. No.3 of 2013 confirming the order dated 16.03.2013 passed by the learned Civil Judge (Junior Division), Sonepur in Election Misc. Case No.3 of 2012 whereby the learned Civil Judge declared the election of the petitioner to the office of Sarpanch void. 2. The petitioner, the opposite party and two other ladies filed their nominations for election to the post of Sarpanch of Baladi Grama Panchayat under the Sonepur Panchayat Samiti. The election was conducted on 15.02.2012 and its result was declared on 21.02.2012. The petitioner was declared elected having secured 994 number of valid votes and the opposite party remained in second position securing 864 number of valid votes. Challenging the election of the petitioner, the opposite party filed election dispute in the court of the learned Civil Judge (Junior Division), Sonepur, which was registered as Election Misc. Case No.3 of 2012. It was averred in the election petition that the returned candidate (present petitioner) was disqualified under Section 25 (1) (v) of the Orissa Grama Panchayat Act 1964 (in short, ‘the Act’) to file nomination and contest the election, since she had given birth to her 3rd and 4th children, namely, Reema Dang and Debendra Dang on 14.01.2006 and 17.01.2009 respectively after the cut off date, even though she had already a son and daughter, namely, Dharmendra Dang and Seema Dang. It was further alleged that even though the present opposite party raised objection to the nomination of the petitioner on the ground of her disqualified for having more than two children after the cut off date, the objection was not taken into consideration. It was also alleged that the petitioner is known by three aliases, namely, Kunjalata Dang, Kulalata Dang and Kundalata Dang, being the wife of Rohit Dang of village-Baladi. 3. In the proceeding, the present petitioner filed her show cause stating that she is known as only Kunjalata Dang and not as Kulalata or Kundalata. She denied that she had more than two children on the date of filing of nomination. In particular, she denied the allegation that she has given birth to her 3rd and 4th children, a daughter and a son, namely, Reema Dang and Debendra Dang after the cut off date, i.e., on 14.01.2006 and 17.01.2009. She denied that she had more than two children on the date of filing of nomination. In particular, she denied the allegation that she has given birth to her 3rd and 4th children, a daughter and a son, namely, Reema Dang and Debendra Dang after the cut off date, i.e., on 14.01.2006 and 17.01.2009. It was further stated that the election petition was not maintainable for non-joinder of necessary parties. 4. On the basis of pleadings of the parties, the learned Civil Judge framed five issues. The present opposite party examined four witnesses including herself and proved certain documents whereas the present petitioner examined two witnesses including herself as O.P.W. no.1. On consideration of the evidence on record, the learned Civil Judge came to the conclusion that the petitioner gave birth to 3rd and 4th children much after the cut off date and was therefore disqualified under Section 25 (1) (v) of the Act and accordingly the election of the petitioner was declared invalid creating a casual vacancy to the office of the Sarpanch of the Grama Panchayat concerned. 5. Aggrieved by the order of the learned Civil Judge as aforesaid, the petitioner filed FAO No.3 of 2013 in the court of the learned District Judge, Sonepur. By the impugned judgment dated 06.07.2013 (Annexure-6), the learned District Judge dismissed the appeal and confirmed the order of the learned Civil Judge under Annexure-4. Challenging the concurrent orders of the trial court as well as appellate court, the petitioner has filed the present writ application. 6. In assailing the impugned orders, the learned counsel for the petitioner submits that there is no acceptable evidence on record to hold that the petitioner gave birth to her 3rd and 4th children after the cut off date and, therefore, the impugned orders are perverse. It is also submitted by him that the counsel for the petitioner filed written notes of argument before the trial court as well as the appellate court and that neither of the courts below have taken into consideration the written note of argument and, therefore, the impugned orders must be held to have become vitiated and are liable to be set aside. 7. 7. Section 25 of the Orissa Grama Panchyat Act stipulates the disqualifications for being elected or nominated as a Sarpanch or any other member of the G.P. Clause (v) of sub section(1) of Section 25 reads as under : “25. Disqualification for membership of Grama Panchayat-(1) A person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he- (a) to (u) ......... (v) has more than two children : Provided that the disqualification under Clause(v) shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayats (Amendment) Act,1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year.” 8. The petitioner being examined as P.W.1 has admitted in her evidence in chief about her first two children, namely, Dharmendra Dang and Seema Dang born respectively on 12.06.1997 and 18.03.2002 and denied to have any other child. Therefore, the question is whether the petitioner gave birth to two other children, namely, Reema Dang (daughter) and Debendra Dang (son) subsequently. 9. With regard to birth of 3rd and 4th children of the petitioner, the opposite party relied upon the evidence of P.W.3, the Anganwadi worker of village-Baladi and P.W.4, the Medical Officer of Naikenpalli Community Health Centre (CHC). 10. In her show cause though the petitioner denied her parentage in respect of her children, in her affidavit evidence she admitted that she is the legally married wife of Rohit Dang and that Dharmendra Dang and Seema Dang were born out of their wedlock on 12.06.1997 and 18.03.2002 respectively. Similarly, the Headmaster of Baladi U.P. School proved the admission register vide Exts.10 and 11 showing the admission of the first two children, namely, Dharmendra and Seema. Although it was pleaded by the petitioner that her name is Kunjalata and she is never known by the aliases, Kundalata or Kula Lata, the admission register as aforesaid indicate the mother’s name of Seema Dang as Kundalata Dang. Although it was pleaded by the petitioner that her name is Kunjalata and she is never known by the aliases, Kundalata or Kula Lata, the admission register as aforesaid indicate the mother’s name of Seema Dang as Kundalata Dang. In view of the entry in the admission register and keeping in view the evidence of the petitioner in her cross-examination that her husband is the only person in the village bearing the name Rohit Dang and that in the voter list her name has been mentioned as Kundalata and she filed the nomination describing her name as Kundalata, the courts below have rightly concluded that the petitioner is also known as Kundalata Dang. 11. P.W.3 is the Anganwadi worker of village-Baladi, which fact is admitted by the petitioner in her cross-examination. P.W.3 has proved the Take Home register as Ext.12 which is maintained in the Anganwadi Centre and the relevant entry relating to the 4th child Debendra Dang vide Ext.12/A and the signature of the mother of Debendra Dang mentioned as Kundalata Dang vide Ext.12/B. P.W.3 has also proved the pre-school admission register, Ext.13 and the relevant entries therein with regard to attendance along with the date of birth of Rima Dang as Exts.13/A and 13/B. The registers relate to February and March,2012. The entries against the name of Reema Dang show that she was born on 14.01.2006 and the name of her father is Rohit Dang. With regard to birth of the 4th child, Debendra Dang, P.W.4, the Medical Officer of the C.H.C. proves Ext.14, the register maintained in the C.H.C. regarding payment made to the mother on giving birth to a child under the “Janani Surakhya Yojana” (JSY) Scheme. The relevant entry in the said register has been marked as Ext.14/A which reveals that Kunjalata Dang, wife of Rohit Dang of village-Baladi gave birth to a child on 18.01.2009 and, therefore received Rs.1,400/- under “Janani Surakhya Yojana” Scheme. Such payment was made to Kunjalata Dang on 10.02.2009 and in respect of the said entry Kunjalata Dang has put her LTI in token of receipt of the amount. In her cross-examination P.W.3 admitted that prior to her joining as Anganwadi worker in village-Baladi, Debendra Dang had already taken birth and after her joining she conducted survey and made entry in the register. In cross-examination, she admits that the register does not contain any page certificate. In her cross-examination P.W.3 admitted that prior to her joining as Anganwadi worker in village-Baladi, Debendra Dang had already taken birth and after her joining she conducted survey and made entry in the register. In cross-examination, she admits that the register does not contain any page certificate. It is argued by the learned counsel for the petitioner that Exts.12 to 14 are not admissible in evidence and, therefore, cannot be taken into consideration in proof of the birth of 3rd and 4th children of the petitioner. Similar argument was also urged in the note of argument submitted on behalf of the petitioner before the courts below. The contention of the learned counsel for the petitioner has no force inasmuch as the registers vide Exts.12 to 14 are public records maintained by public servants in discharge of their public duty under the authority of law and, therefore, they are admissible in evidence. The courts below in coming to hold that these registers were admissible in evidence have rightly relied upon, the decision of this Court reported in 2006 (II) CLR Page-98: Basanta Kumar Sahu v. Nrusingha Chandra Samal & another. The further evidence led on behalf of the opposite party is Ext.9, the register of status regarding health of the child and mother, which has been proved by P.W.3. Ext.9 vide Entry No.24 dated 27.09.2005 reflects that Kunjalata Dang, wife of Rohit Dang had been carrying her 3rd pregnancy and in the said register the date of birth of the girl child, Rima was reflected as 14.01.2006. Similarly, the name of the petitioner was registered on 28.08.2008 showing to have been carrying her 4th pregnancy and it was further noted that a male child, Debendra Dang was born to her on 17.01.2009. Exts.9 and 12 to 14 were prepared much prior to the election to the post of Sapranch and therefore, it cannot be assumed that they were fabricated or manipulated by the present opposite party contemplating that she as well as the petitioner would contest an election in 2012. 12. It is seen that whether the petitioner gave birth to more than two children after the cutoff date is a question of fact and both the courts below have on appreciation of evidence on record concurrently found that the petitioner gave birth to more than two children after the cutoff date. 12. It is seen that whether the petitioner gave birth to more than two children after the cutoff date is a question of fact and both the courts below have on appreciation of evidence on record concurrently found that the petitioner gave birth to more than two children after the cutoff date. The appreciation of evidence and finding recorded by the courts below is quite reasonable and cannot be said to be either perverse or unreasonable and, therefore, there is no scope of interference with the same in exercise of jurisdiction under Article 227 of the Constitution. On going through the evidence on record, I also fully agree with the findings recorded by the courts below. The points raised in the notes of argument submitted before the lower court on behalf of the petitioner relate to appreciation of the evidence, and those points have been considered by the courts below and, therefore, mere non-mention about the written note of argument in the impugned orders would not vitiate those orders. In the result, I find no merit in this writ petition which is accordingly dismissed.