JUDGMENT

M.M. DAS, J. — Election to the post of Sarpanch of Jamunakote Grama Panchayat in the district of Dhenkanal was held on 21.2.2007. The petitioner along with opp. party no.1 and others contested the said election. After counting all the ballot papers, the petitioner having secured 757 valid votes was declared elected as Sarpanch of the said Grama Panchayat by the Election Officer-opp. party no.2. The opp.party no.1 secured the second highest number of valid votes. He challenged the election of the petitioner as the Sarpanch in Election Misc. Case No.16 of 2007 by filing the said election dispute before the Civil Judge (Junior Division), Kamakhyanagar on the ground of eligibility of the petitioner to contest the said election, alleging that the petitioner is unable to read and write Oriya and also questioning the correctness of counting of the ballot papers. On receiving notice, the petitioner filed her show cause denying all the allegations made in the election petition. The opp. party no.2-Election Officer also filed a show cause, inter alia, stating that after declaration of the result, on the application of the opp.party no.1 (election petitioner), recounting was made in respect of the used ballot papers including the rejected votes of all the 11 booths and after recounting, the election petitioner was found to have secured 752 votes whereas the writ petitioner polled 757 valid votes and was declared elected. It was also stated by him that since there was no objection before him at the time of scrutiny of the nomination papers on the question of eligibility or disqualification of the writ petitioner, there was no occasion for him to delve into the said matter.

2.The learned Election Tribunal after framing the issues and considering the evidence adduced on behalf of the parties causing recounting of the used ballot papers including the rejected ballot papers in presence of the parties and their respective Advocates, arrived at a finding that the election petitioner obtained 752 votes and the writ petitioner, who was the opp. party no.1 in the election petition, polled 757 votes. Therefore, he found no discrepancy in counting of the votes. With regard to the allegation that booths were captured and votes were cast in the names of the dead persons and absentees, the learned Election Tribunal on analyzing the materials available on record arrived at a finding that there is no concrete proof available in the case record to substantiate the said allegation.

3.So far as the second leg of allegation made by the election petitioner that the writ petitioner has filed a false affidavit before the Election Officer about her passing of Class-III examination and does not know how to read and write Oriya, was denied by the writ petitioner stating that she knows how to read and write Oriya. On analyzing the evidence adduced, the Election Tribunal found that though there are some minor mistakes, she could correctly write the portion dictated to her from “Chhabila Madhu Barna Bodha” in Ext.3, the mistakes she has committed are in relation to stiff words which include “Yuktakhyara”. The Daily Sambad dated 9.1.2008 which was given to her to read in Court consists of very small letters on it and the writ petitioner, who is an old and rustic village lady, aged about 60 years, though could not be able to read it, but this aspect was not sufficient to hold that she was completely ignorant of reading and writing Oriya. The learned Election Tribunal thus concluded that inability to read and write particular sentences is not sufficient to hold that she does not know how to read and write Oriya to satisfy the ingredients of Section 11(b) of the ORISSA GRAM PANCHAYAT ACT, 1964. Holding thus, the learned Election Tribunal dismissed the election petition. The opposite party no.1, who was the election petitioner, being aggrieved filed FAO No. 8 of 2009 against the judgment of the Election Tribunal before the learned District Judge, Dhenkanal, who by h