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2006 (I) OLR — 16
P. K. TRIPATHY AND A. K. PARICHHA, JJ.
Kamini Das...Petitioner
Versus
Upendra Biswal and five others...Opp. Parties
Upendra Biswal...Petitioner
Versus
Kamini Das and five others...Opp. Parties
W.P. (C) No.4838 of 2003
And
W.P. (C) No.1866 of 2004
Decided on 19th November, 2005.
Under Article 227 or Article 226, when this Court exercises the power of superintendence or jurisdiction of certiorari, it is not to act as Court of fact or Court of first appeal where assessment of fact and evidence is the primary duty in the context of adjudication of dispute. It has also been held that if the Writ Court finds that appreciation of fact and/or appreciation of evidence and acceptance/rejection of the same suffers from illegality or perversity, and in the above context non-interference will cause miscarriage of justice, then in such rare type of cases the Writ Court may interfere with the factual finding and assessment of evidence. While exercising the jurisdiction in the above indicated manner, the Writ Court has to indicate what were the findings recorded by the Courts below, how they are illegal or suffer from perversity and what should be the correct mode of appreciation. In other words, the High Court in exercise of the certiorari jurisdiction or power of superintendence should decline to be dictatorial in its approach while dealing with a judicial proceeding or orders of the lower Courts/Tribunals. Banking on that cardinal principle, on differ¬ent facts available to their Lordships in the cited decisions, decisions were differently taken in each individual case. (Para - 9)
2. ORISSA GRAMA PANCHAYAT ACT, 1964 - Secs. 30 and 31 - Sarpanch of Grama Panchayat - Election petition - One of the grounds of challenge was underage - Both the Courts below held the age to be less than 21 years - Held, opposite party being at least 18 years old in 1996, she was certainly more than 21 years old by the date of filing of nomination and election - Election valid.
Ext.C, the voter list of 1996 at least indicates that by the year 1996 the opposite party was minimum of 18 years old. That aspect has not been challenged by the applicant anywhere by challenging to the evidentiary value of Ext.C either by adducing any rebuttal evidence or contrary evidence. xxxxxxx Since the voter list - Ext. C provides that rebuttal evidence, therefore the age described in Ext.1 has lost its force as evidence. The Matriculation Certifi¬cate - Ext.2 is an admitted document in which the opposite party and her father have admitted about mentioning that date of birth of the opposite party. That could have provided the rebuttal evidence to Ext.C if the document would not have been explained in the deposition of D.W. No.3. xxxxxxx D.W. No.3 was disbelieved by the Courts below only because of the fact that he could not state the dates of birth of her children. That indicates his truthfulness in his version he was making to the Court. It may not be possible for person of the stature of D.W. No.3 to remember the dates of birth of his four children after lapse of more than twenty years. Even sometimes well-educated persons are not capable of speaking that way. Be that as it may, evidence of D.W.3 that he had under-aged his daughter by about three years on the date of admission has remained unshaken. No contradictory evidence having a riding effect was produced by the applicant to state that the opposite party was of equal age, which is described in the School Admission Register. xxxxxxx The opposite party being at least 18 years old in 1996, she was certainly more than 21 years old (about 24 to 25 years old) by the date of filing of the nomination and election. Though we find that according to the Matriculation Certificate she was 20 years 11 months and 28 days old by the date of filing of nomination and election, but in view of the above finding that aspect has lost its significance. The contrary ruling of the Courts below being illegal and non-sus¬tainable, are accordingly set aside.
(Para - 17)
JUDGMENT
P. K. TRIPATHY, J. — On consent of the parties, both the writ applications were heard analogously and are disposed of by this common judgment.
2. Upendra Biswal, petitioner in W.P. (C) No.1866 of 2004 filed Election Misc. Case No.5 of 2002 in the Court of Civil Judge (Junior Division), Jagatsinghpur challenging to the elec¬tion of Kamini Das, petitioner in W.P. (C) No.4838 of 2003, as the Sarpanch of Badagaon Grama Panchayat under Balikuda Panchayat Samiti in the district of Jagatsinghpur. For the sake of conven¬ience, hereinafter Upendra Biswal is described as the ‘applicant’ and Kamini Das as the ‘opposite party’.
3. The admitted fact amongst the parties is that on 23.02.2002 election was held to the office of the Sarpanch of Badagaon Grama Panchayat. Applicant and the opposite party be¬sides two other candidates figuring as opposite party Nos.4 and 5 in the Election Misc. Case, contested for the said post. Opposite party was declared elected on securing the highest vote. Appli¬cant secured the second highest vote. He filed the Election Petition under Sections 30 and 31 of the Orissa Grama Panchayat Act, 1964 (in short ‘the Act, 1964’). Applicant challenged to the aforesaid election of the opposite party, inter alia, on the grounds that- (i) by the date of filing of nomination and elec¬tion, opposite party was below 21 years of age, and (ii) she was not a person within the said Panchayat area in accordance with the provision in Sub-section (1) of Section 4 of the Act, 1964 and, therefore, she was not qualified to contest for election as a Member of the Grama Panchayat and consequentially as the Sar¬panch. Opposite Party disputed to the aforesaid averments of the applicant and contended that she was over 21 years of age by the date of filing of nomination and election and she was also a qualified person to contest for the post of Ward Member in ac¬cordance with law and, therefore, she was competent to contest for the post of Sarpanch.
4. Both the parties adduced oral and documentary evidence in support of their respective pleas. On assessment of such evi¬dence, learned Civil Judge on 13.02.2003 delivered the judgment with the finding that evidence on record and particularly the Matriculation Certificate granted by the Board of Secondary Education, Orissa - Ext.2, proves age of the opposite party to be less than 21 years and therefore she was not qualified to contest for the post of Sarpanch. Accordingly, learned Civil Judge de¬clared the election of the opposite party as invalid and simulta¬neously declared the applicant as the elected Sarpanch having secured the second highest vote.
5. Opposite Party challenged that judgment before learned District Judged, Cuttack in Election Appeal No.7 of 2003. Learned District Judge, on consideration of the contention of the par¬ties, assessment of evidence on record and findings recorded by learned Civil Judge, held that evidence on record proves that opposite party was below 21 years of age and therefore she was not qualified to contest for the post of Sarpanch. At the same time learned District Judge held that there being several candi¬dates contesting for the post of Sarpanch, declaration made by the Civil Judge that applicant was elected as Sarpanch is not sustainable and accordingly set aside that part of the judgment of the trial Court and declared a casual vacancy to have been created.
6. In view of the said judgment of the District Judge, opposite party has preferred W.P.(C) No.4838 of 2003 challenging to the findings recorded by learned District Judge holding her election to be invalid and applicant has filed W.P.(C) No.1866 of 2004 challenging to the decision of the District Judge in setting aside the order of learned Civil Judge declaring him elected as Sarpanch having secured the second highest vote.
7. Opposite Party has challenged to the judgment of the Courts below on the ground that appreciation of evidence, both oral and documentary, by the Courts below is contr
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