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2019 DIGILAW 336 (ORI)

Saraswati Nayak v. State of Odisha

2019-04-19

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This is a writ petition under Article 227 of Constitution of India involving the impugned judgments arising out of Election Appeal No.1 of 2018 disposed of by the Additional District Judge, Champua, vide Annexure1 thereby confirming the judgment involving Election Misc. Case No.2 of 2017 disposed of by the Civil Judge (Jr.Divn.), Champua, vide Annexure-2. 2. Background involving the case is that O.P.5 herein filed election dispute involving the petitioner, the elected candidate, O.P.4 therein and another contesting candidate, Sulochana Nayak, O.P.5 therein thereby assailing the election of the present petitioner on the premises of the present petitioner being a disqualified candidate to contest the election for her not attaining the age of 21 years and that there has been illegal acceptance of the nomination paper of O.P.4 therein. Background involving the election dispute remains that O.Ps.4 & 5 and the present petitioner contested for the post of Sarapanch of Sadangi Gram Panchayat under Champua Block. Election for the post of Sarapanch was held on 21.2.2017. O.P.5 was allotted with symbol "Sun" whereas O.P.4 herein also appearing as O.P.5 in the election dispute was allotted with symbol "Machha" and the present petitioner appearing as O.P.4 therein was allotted with symbol "Khola Bahi". Date for filing of nomination was 17.1.2017 and the date for scrutiny was on 18.1.2017. It is alleged that in spite of allegation the petitioner, O.P.5 herein objected the candidature of present petitioner, O.P.4 therein to disqualify from being contesting the election following the provision of the Gram Panchayat Act for her not attaining 21 years of age. She was allowed to contest the election even before turning down the objection of O.P.5 herein, and therefore, there was an allegation of improper acceptance of nomination of the present petitioner. Election was held on 21.2.2017. Present petitioner, O.P.4 therein was announced and declared by the Election Officer on 23.2.2017, who has been elected as Sarapanch of Sadangi Gram Panchayat. It was alleged therein that the date of birth of the present petitioner, O.P.4 was 10.10.1996. O.P.4 had filed her affidavit showing her age to be 20 years and as such she was clearly disqualified. Present petitioner, O.P.4 therein was announced and declared by the Election Officer on 23.2.2017, who has been elected as Sarapanch of Sadangi Gram Panchayat. It was alleged therein that the date of birth of the present petitioner, O.P.4 was 10.10.1996. O.P.4 had filed her affidavit showing her age to be 20 years and as such she was clearly disqualified. Thus filing the election dispute the election petitioner, O.P.5 herein while seeking declaring the election of the present petitioner as bad also sought for a declaration to declare O.P.5 herein, i.e., election petitioner to have been elected in the election involved. On her appearance O.P.4, i.e. the present petitioner filed objection. The present petitioner while disputing the claim of the election of the petitioner, who has raised objection on the age of the petitioner, answering on the dispute on her age while stating that she had already attained the age of 21 years at the time of filing of her nomination, the petitioner also justified her claim attaining the qualified age by producing several certificates in proof of her age. Thus the elected candidate, the petitioner contested the case on the premises that she had sufficient proof of her being qualified by attaining the required age on the date of nomination. To satisfy their respective case, the election petitioner examined six witnesses (P.Ws.1 to 6) and exhibited (Exts.1 to 29), whereas O.P. therein examined two witnesses (O.P.Ws.1 & 2) and also exhibited (Exts.A to C/1). 3. Based on the pleading of the parties and filing of document, the Tribunal framed the issues as follows :- "(a) Whether the Election petition is maintainable ? (b) Whether the Election petitioner has any cause of action to file the Election petition ? (c) Whether the Election petition is barred for non-joinder or mis-joinder of necessary parties or proper parties ? (d) Whether the Election petition is barred by the principles of limitation ? (e) What is the actual date of birth of O.P.No.4 and whether O..No.4 was ineligible to contest the Election for the post Sarapanch on the ground of age as she had not complete twenty one years on the date of nomination and whether any corrupt practice had been reported by O.P.No.4 to contest and win the election ? (e) What is the actual date of birth of O.P.No.4 and whether O..No.4 was ineligible to contest the Election for the post Sarapanch on the ground of age as she had not complete twenty one years on the date of nomination and whether any corrupt practice had been reported by O.P.No.4 to contest and win the election ? (f) Whether the Election petitioner had objected before the Election Officer against O.P.No.4 at the time of scrutiny of the nomination forms on the grounds of age and if the Election Officer illegally accepted the nomination paper of O.P.No.4 without hearing the objection of the petitioner ? (g) Whether on declaration of the election of the elected candidate (O.P.No.4) as null & void and the candidate securing the 2nd highest votes or the Election petitioner can be declared as elected ? (h) Whether the notices on O.Ps.1 & 3 have been served in accordance with law ? (i) Whether the Election petitioner is entitled to any other relief or relief(s) ?" 4. Considering the rival contentions of the parties, the Tribunal while answering issue nos.5, 6 & 7 though actually the issue numbers are (e), (f) & (g) in favour of the election petitioner ultimately allowed the election dispute thereby declaring the election of O.P.4, i.e., the preset petitioner as Sarapanch as null and void and applying the provision at Section 38(2)(a) of the Gram Panchayat Act, further declared that there is casual vacancy created for the declaration of that Court. On Appeal by the present petitioner, the Appeal was registered as Election Appeal No.1 of 2018 on the file of Additional District Judge, Champua and was dismissed by the judgment dated 27.3.2018 resulting the present writ petition. 5. On Appeal by the present petitioner, the Appeal was registered as Election Appeal No.1 of 2018 on the file of Additional District Judge, Champua and was dismissed by the judgment dated 27.3.2018 resulting the present writ petition. 5. Sri A.P. Bose, learned counsel for the petitioner reiterating his client's plea in the courts below and taking this Court to the materials available on record such as documentary and oral evidence contended that the petitioner had a clear attempt to satisfy her case for attaining the qualified age to contest for the post of Sarapanch by relying upon the document, vide Ext.A to Ext.C/1 thereby producing original Birth Certificate as Ext.A, Authorisation Letter of the Medical Officer in-charge-cum Registrar, Birth & Death, Kaptipada CHC, Mayurbhanj as Ext.B and Birth and Death Register of the year 1994 of Kaptipada CHC, Mayurbhanj as Ext.C, whereas Sl.No.2426 of Page-163 of Birth & Death Register of the year 1994 of Kaptipada CHC as Ext.C/1 and accordingly also laid oral evidence through the witnesses produced there to satisfy her case that the petitioner was already over 20 years of age and met the age requirement. Taking this Court to the provision of the Act, Sri Bose, learned counsel for the petitioner particularly relying on the provision at Section 11(b) contended that for the document produced by the elected candidate clearly establishing that she had already attained the age of 21 years, she had the qualification to contest the election. Referring to the document relied and the evidence supporting the document at the instance of the election petitioner, learned counsel for the petitioner contended that for the election petitioner relying on non-statutory documents to establish that the elected petitioner had not attained the age of 21 years. Learned counsel for the petitioner alleged that the courts below have all failed in appreciating the difference between the statutory document and the non-statutory document. Further taking this Court to the decision of this Court in W.P.(C) No.3321/2018 decided on 26.2.2019 (unreported), the decision in Siba Prasad Jena vrs. Puspanjali Jena & another, 2007 37 OCR 680 and two decisions of the Hon'ble apex Court in Brij Mohan Singh vrs. Priya Brat Narain Sinha & others, (1965) AIR SC 282 and Madan Mohan Singh & others vrs. Puspanjali Jena & another, 2007 37 OCR 680 and two decisions of the Hon'ble apex Court in Brij Mohan Singh vrs. Priya Brat Narain Sinha & others, (1965) AIR SC 282 and Madan Mohan Singh & others vrs. Rajni Kant & another,2010 2 CLR 660 (SC), Sri Bose, learned counsel for the petitioner contended that for the support of the case of the petitioner through the aforesaid decisions of this Court as well as the Hon'ble apex Court, both the courts have erred in law in allowing the election dispute and thereby also dismissing the Appeal. 6. In his opposition, Sri P.K.Ray, learned counsel for the contesting O.P.5 on reiteration of the stand of his client in the election dispute, in the election Appeal and the counter affidavit filed herein contended that for production of material evidence as well as oral evidence, the Tribunal as well as the Appellate Authority have all considered the case involved herein in its right perspective. Sri Ray, therefore, contended that there requires no interference in either of the orders. Sri Ray, learned counsel for O.P.5 also contended that for the concurrent finding of fact by both the courts, this Court has very limited scope for interfering in the impugned judgments. Further taking this Court to the decision in Chandrakanti Jena vrs. Banalata Jena & others, (2004) Supp OrissaLR 335 and referring to paragraphs-6 & 7 therein, learned counsel for O.P.5 submitted that the decision relying on the matriculation certificate has the basis and foundation of age of a person. Sri Ray again contended that the impugned judgments are also legal. Further taking this Court to a decision of the Division Bench of this Court in Prasanta Kumar Sahoo vrs. Chiranjaya Sahoo & others,2006 Supp1 OrissaLR 111, Sri Ray further contended that for the petitioner unable to bring the case under the fold of the impugned order suffers from apparent error and on erroneous admission of inadmissible evidence, there is also no scope otherwise to interfere with the impugned judgment. 7. Chiranjaya Sahoo & others,2006 Supp1 OrissaLR 111, Sri Ray further contended that for the petitioner unable to bring the case under the fold of the impugned order suffers from apparent error and on erroneous admission of inadmissible evidence, there is also no scope otherwise to interfere with the impugned judgment. 7. Considering the rival contentions of the parties, it is at this stage this Court finds, the moot question remains here to be decided as to whether the Tribunal and the Appellate Court below erred in law in giving more attachment to the document filed by the election petitioner, such as Voter List, Aadhar Card and Copy of HSC Certificate, above the documents filed by the elected candidate, the present petitioner through Exts-A, B, C & C/1 such as Birth Certificate, Authorisation Letter of the Medical Officer incharge-cum-Registrar, Birth and Death, Birth & Death Register of the particular year, further concerned Serial Page of the Birth and Death Register or the year 1994 ? and further as to whether for the provision at Section 11(b), the candidate contesting the election for the post of Sarapanch is required to attain the age of 21 years ? Considering the rival contentions of the parties through the evidence oral and material, this Court here finds, one party has given attachment to the documents such as Voter List, Copy of Aadhar Card and Copy of HSC Certificate, vide Exts, whereas the other side has relied on documents such as original Birth Certificate, Authorisation Letter by the Medical Officer in charge-cum-Registrar of Birth and Death, the Birth & Death Register, the concerned page of the Birth & Death Register, vide Exts.A to C/1. It is at this stage taking into account the provision at Section 11(b) of the Act, this Court finds, the provision reads as follows :- "11.Qualification for membership in the Grama Panchayat :- Notwithstanding anything in Section 10 no member of a Grama Sasan shall be eligible to stand for election- (b) as a Sarpanch or Naib-Sarapanch, if he has not attained the age of twenty-one years or is unable to read and write Oriya;" 8. This Court here finds, the provision is clear to the extent that one must have attained the age of 21 years on the date of filing of nomination, which means a person already completing 20 years of age. This Court here finds, the provision is clear to the extent that one must have attained the age of 21 years on the date of filing of nomination, which means a person already completing 20 years of age. This proposition having been considered on repeated occasions, a judgment has already been given by this Court itself, vide W.P.(C) No.3321/2018 wherein this Court has come to observe that requirement of law is one must attain the age of 21 years. It is not unlike the provision in the Representation of People's Act where a person to contest election is required to complete the age of 25 years for particular election. Taking into another decision of the Hon'ble apex Court in Brij Mohan Singh vrs. Priya Brat Narain Sinha & others, (1965) AIR SC 282 and taking into account the importance of Certificate of Birth & Death Registrar, the Hon'ble apex Courtin the above judgment in paragraph 20 therein held as follows :- "20. An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ext.2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school, the request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant's case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant's age on the entries in these three documents, vis., Ext.2, Ext.8 and Ex.18." Similarly taking into account another decision of the Hon'ble apex Court in Madan Mohan Singh & others vrs. Rajni Kant & another,2010 2 CLR 660 (SC), Hon'ble apex Court examining the admissibility of document and its probated value, the Hon'ble apex Court further taking into account series of judgments in paragraphs-15, 16 & 17 came to observe as follows :- "15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors., (1964) AIR SC 1625; and Santenu Mitra Vs. State of West Bengal, (1999) AIR SC 1587. 16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the un-impeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors., (1965) AIR SC 282; Birad Mal Singhvi Vs. Anand Purohit, (1988) AIR SC 1796; Vishnu Vs. State of Maharashtra, (2006) 1 SCC 283 ; and Satpal Singh Vs. State of Haryana, (2010) 7 JT 500 SC)." 9. Considering the decisions cited by the learned counsel for O.P.5 and for the settled position of law through the judgments referred to herein above, this Court finds, the judgments referred to by the contesting O.P.5 are of no help to the case at hand. It is at this stage considering the findings of both the Election Tribunal as well as the Appellate Court on giving emphasis to the non-statutory document over the statutory document and for the law of land, as discussed herein and taken note herein above, this Court finds, both the courts erred in law in appreciating the material documents available on record and discarding the same. There is no doubt that both the courts below failed in appreciating the value in the documents filed by the elected candidate. As a consequence while answering both the questions framed in favour of the petitioner, this Court interfering with the impugned judgments at Annexures1 & 2 sets aside the both. For quashing of the judgments at Annexures-1 & 2, this Court observes, in the event the petitioner, the elected candidate has been made to unseat in the meantime, her position as Sarapanch may be restored forthwith on receipt of copy of this judgment. The writ petition succeeds. No cost.