Orissa High Court
Kamini Das vs Upendra Biswal And Five Ors. on 19 November, 2005
Equivalent citations: 101(2006)CLT349, 2006(1)OLR16
Author: P.K. Tripathy
Bench: P.K. Tripathy, A.K. Parichha
JUDGMENT P.K. Tripathy, J.
1. 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 election 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 convenience, 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 besides 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. Applicant 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 election, 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 Sarpanch. 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 accordance 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 evidence, 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 declared the election of the opposite party as invalid and simultaneously 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 parties, 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 candidates 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 contrary to the provision of law in relation to proof of her age. Since the voter list of the year 1996 -Ext.C proves that by then her age was 19 years, therefore, the entry of date of birth in the Matriculation Certificate Ext.2 or the Voter List of 2002 - Ext.1 could not have been regarded as conclusive proof of her age in view of the explanation furnished by her father examined as D.W. No.3. On the face of such circumstances emerging from the oral and documentary evidence, learned Civil Judge and the District Judge could not have decided the issue against her in the absence of discharge of the heavy burden, in that respect, by the applicant. In the above context, opposite party also argued that his application to call for the A.N.M. Survey Register and rejection of his application under Order 41, Rule 27, C.P.C. moved in the Court of District Judge to accept the voter list of the years 1999, 2000 and 2001 as additional evidence, has caused prejudice in her favour. She argued that such documents being public documents, they should have been accepted as additional evidence, and on the basis of the entry in such documents it could have been proved by the opposite party that her age was above 21 years by the date of filing of nomination and election and that could have effectively resolved the dispute by validating her election.
While supporting to the judgment of learned District Judge in setting aside the order of the Civil Judge in respect of declaring the applicant elected, she argued that once several candidates were contesting for the post, the applicant could not have been declared as elected.
8. Applicant argued that burden to prove the plea of underage of the opposite party is on the applicant and there is no controversy on that position of law. Applicant argued that once he tendered evidence in support of that plea by proving Exts.1 and 2, the onus shifted to opposite party and, therefore, it is wrong to say that applicant did not discharge the initial burden. He supported the findings of the Courts below relating to assessment of evidence with respect to underage of the opposite party and argued that attempt of opposite party to prolong the proceeding by filing application to call for the A.N.M. Survey Register and to accept additional evidence by the appellate Court were rightly rejected in as much as those evidence would not have improved her case in any manner. He further argued that documents like Matriculation Certificate - Ext.2, Voter List- Exts. 1 & C and Certificate under Registration of Births and Deaths Act, 1969 - Ext.B are undoubtedly admissible as public documents under Section 35 of the Indian Evidence Act, but admissibility of such documents automatically does not make such documents credible. Thus, in the present case non-credibility of such evidence produced from the side of the opposite party is circumstantially so strong that it calls for no interference by this Court in exercise of writ jurisdiction under Article 227 together with Article 226 of the Constitution of India.
9. In course of argument, when effort of the opposite party was to induce this Court to make fresh assessment of evidence, insistence of the applicant was not to do the same while exercising writ jurisdiction under Articles 226 and 227 of the Constitution. In the above context, opposite party relied on the cases of Santosh Hazari v. Purushottam Tiwari (Dead) by Lrs. AIR 2001 SC 965; Madhukar and Ors. Sangram and Ors. , and Hari Vishnu Kamath Ahmad v. Ishaque and Ors. in support of the aforesaid contention. In contra, applicant relied on the cases of Syed Yakoob v. K.S. Radhakrishnan and Ors. ; K.P. Singh v. Union of India and Ors. ; Mohammad Shahnawaz Akhtar and Anr. v. 1st ADJ, Varanasi and Ors. ; Essen Deinki v. Rajiv Kumar ; Sadhana Lodh v. National Insurance Co. Ltd. and Anr. ; Surya Dev Rai v. Ram Chander Rai and Ors. 2003 (II) OLR (SC) - 361 and Smt. Sarasa Patra and Anr. v. Ch. Kashinath Patra 2004 (II) OLR - 233. It be noted here that the decisions in the cases of Santosh Hazari (supra) and Madhukar (supra) are relating to the manner of exercise of jurisdiction under Section 100 of the Code of Civil Procedure. After perusal of the decisions, we find that the settled position of law is that, be it 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 eases 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 different facts available to their Lordships in the cited decisions, decisions were differently taken in each individual case. We tread on the same path.
10. In support of his case, applicant relied on public documents, viz., Voter List of 2002 - Ext.1 and Matriculation Certificate issued by the Board of Secondary Education, Orissa in favour of the opposite party - Ext.2. As against that, opposite party filed Certified copy of the Voter List of 1996 - Ext.C and Birth Certificate granted by the Medical Officer in-charge of Balikuda P.H.C., Balikuda - Ext.B. In addition to that, opposite party also relied on the Horoscope - Ext.A and the oral evidence of D.W. No.2- the priest, D.W. No.3 - her father besides herself as D.W. No.4. The Courts below rejected Ext.B from the zone of consideration on the ground that the Medical Officer granted that certificate on 12.04.2002 on the basis of registration being made on 19.03.2002. In that respect the trial Court referred to the provision in Registration of Births and Deaths Act, 1969 and the Rules made thereunder by the State of Orissa to comment that there is no evidence on record that such birth was registered on the basis of an inquiry conducted by a Magistrate. Similarly, evidence of D.W.2 was rejected by the Courts below on the ground that though he claimed to be the family priest of D.W.3, but he has no knowledge of the dates of birth of the remaining three children of D.W.3 (brothers and sister of the opposite party) and therefore that evidence is not credible. After perusal of such evidence, we do not find any illegality in such findings of the Court below though the opposite party canvassed to reject the reasonings of the Courts below and to accept those evidence in proof of her case.
11. In the said context, Courts below recorded that Ext.1 indicates that opposite party was 19 years old in 2002 whereas Ext.C indicates that in 1996 she was 19 years old and, therefore, the entry of age in Exts.1 and C is not acceptable. After eliminating Exts.1 and C from the zone of consideration they referred to Ext.2, which is the certificate granted by the Board of Secondary Education, Orissa mentioning the date of birth of the opposite party as February 25th, 1981. In the said context, though the opposite party stated that in the School Admission Register she was admitted showing less than her actual age and that aspect was well explained by D.W.3, the Courts below found explanation offered to be not acceptable in as much as D.W.3 (father of the opposite party), in paragraph-4 of his deposition (in the cross-examination), pleaded his ignorance about his knowledge on the date of birth of the opposite party and, therefore, his explanation in the examination-in-chief (paragraph-2 of the deposition) that he got her admitted with reduction of age was not found to be a reliable explanation so as to accept the case of the opposite party.
12. Opposite Party relied on the cases of Brij Mohan Singh v. Priya Brat Narain Sinha and Ors. and Birad Mal Singhvi v. Anand Purohit and argued that reduction of the age in the School Admission Register being a common habit of parents, therefore, presumption should be drawn accordingly. In the case of Brij Mohan Singh (supra) on the availability of other supportive evidence about the age of the successful candidate to be more than the age noted in the educational certificate, the Apex Court accepted the contention of the successful candidate on drawing a presumption that habits of the parents are to under-age their children at the time of initial admission to the school and such factum are carried into the certificates like the Matriculation Certificate. In the case of Birad Mal Singhvi (supra) the Apex Court held that :
... If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of document were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmichand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence, i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue.
In Birad Mai Singhvi (supra) a similar view was taken by the Apex Court regarding evidentiary value of the date of birth in school registers.
13. Analysing the facts and evidence available in this case in the light of the aforesaid decisions, it is seen that applicant produced the Matriculation Certificate - Ext. 2 to discharge the initial burden. If the opposite party had denied to such an entry or after admitting the same would not have explained the same that her date of birth is different, then Ext.2 would have been of considerable evidentiary value against her plea. The Opposite Party did not contribute anything for mentioning the date of birth in the School Admission Register. Her further (D.W. 3) admitted to have given that date of birth at the time of admission of the opposite party. He has explained that she was under-aged and that is not the correct date of birth. As we find, the Courts below rejected that explanation on the ground that he could not speak the date of birth of his children. We may mention here that presumption may be drawn in appropriate manner provided there is a base for the same. Ext.C, the Voter List of 1996 was discarded by the Courts below only because in the Voter List of 2002 (Ext.1) age of the opposite party was recorded as 19 years. It was stated at the Bar that admissibility of such documents as evidence is not a dispute because of provision of law in Section 35 of Indian Evidence Act. Once that be so, the voter lists - Exts.C and 2 are not conclusive proof of the age and other description made in favour of the voter. But both the voter lists prove the sequence that the opposite party was at least 18 years old when the voter list of 1996 (Ext.C) was prepared. If that is so, then that circumstance explains the circumstance and adds to the credibility of the explanation offered by D.W. No.3 that while admitting the opposite party into school, he under-aged her. When the burden of proof of under-age of the opposite party is heavy on the applicant, he did not prove that by any direct evidence by examining proper persons to prove that notwithstanding her minor-hood in 1996 the opposite party got her name included in the Voter List of 1996. Credibility of Ext.C was not otherwise challenged except by placing reliance on Exts.1 and 2 as the counter evidence. It is already found that the endorsement of date of birth in Ext.2 has been explained by D.W.3 and that explanation corroborates to the age of the opposite party mentioned in the voter list of 1996. Similarly the voter list of 2002, i.e., Ext.1 by itself does not prove her age in the absence of any supporting evidence that opposite party was only 19 years old by 2002. Thus, taken together all the aforesaid evidence along with Ext.C, it is seen that credibility is attached to the Voter List of 1996, i.e., Ext.C that the opposite party was at least 18 years old by the time of preparation of that voter list. Thus, the Courts below having vested with the jurisdiction to appreciate and evaluate the evidence on record, failed to discharge that jurisdiction by properly taking into account the presumption which flows from Ext.C in view of the provision of law in Article 326 of the Constitution of India. We reiterate that entry of age or other description in the voter list of a person is not conclusive proof of such age or status, but that is probative evidence with rebutable presumption. Therefore, description of age of the opposite party as 19 years in the Voter List of 2002 (Ext.2) is rebutted by the Voter List-Ext.C having been prepared for 1996.
14. In he anxiety to prove that aspect opposite party filed additional evidence, i.e., her description as a voter in the Voter Lists of 1999, 2000 and 2001, and in all such documents she being described to be 19 years old. She also argued that the appellate Court committed illegality in not allowing her petition under Order XLI, Rule 27, C.P.C. For the following reasons we do not find any merit in that contention.
15. Order 41, Rule 27, C.P.C. is an exception to the general rules relating to the stage at which evidence should be introduced in a proceeding. That is evident from the language employed in Sub-rule (1) of Rule 27 when it states that, "the parties to an appeal shall not be entitled to produce additional evidence...." The exceptions are (i) when the trial Court refused to admit evidence which ought to have been admitted, (ii) the party seeking to produce additional evidence in spite of exercise of due diligence was not aware of existence of such evidence or that he could not have produced such evidence at the relevant time in the trial Court and (iii) the appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial case. In his application under Order 41, Rule 27, C.P.C. filed before the appellate Court, opposite party did not explain any reason either to state that the voter list was not admitted into evidence though it ought to have been so admitted. She also did not state that the voter lists were not within her knowledge or could not have been produced by her at the time of hearing of the election dispute. Then it is to be considered whether the appellate Court would have required that document to be produced to enable it to pronounce judgment or for any other substantial cause. Generally litigants invoke this clause whenever they fail to satisfy the exceptions as provided in Clauses - (a) and (aa) in Sub-rule (1) of Rule 27. It be borne in mind that Court is to decide a dispute on the basis of evidence available on record. Both the parties are equal before it at every stage of the proceeding. Negligence of a party to prove his case cannot be encouraged by invoking Clause - (b) of Sub-rule (1) so as to do prejudice to the interest of the opponent. But, where the Court finds that evidence available on record are evenly counter balance and some evidence are available to arrive at the truth to decide the dispute or that evidence available on record is not sufficient to decide the dispute in one way or the other and some more evidence is required, then in such cases Clause - (b) of Sub-rule (1) is to be invoked. Putting the fact situation in this case with that requirement, we have already recorded that there is no dearth of evidence to decide the issue. Therefore, this Court does not need the Voter Lists of 1999, 2000 and 2001 to be introduced as additional evidence. No doubt, such evidence if would have been introduced at the time of trial, then that could have facilitated the opposite party to canvass her case in a better manner on the issue of her age. Since she neglected her case at that stage by not adducing such evidence and when the Court does not need those documents, therefore, we do not find any illegality in the conduct of the learned District Judge in rejecting the application under Order 41, Rule 27, C.P.C.
16. Learned counsel for the opposite party also argued that the A.N.M. Survey Register was not called for by the trial Court in spite of application filed to that effect and therefore the opposite party was prejudiced. We do not find any merit in that argument in as much as in the appellate Court she did not raise such a contention and, above all, no such ground has been taken in the present writ petition in the above respect relating to the conduct of the appellate Court in not considering such a contention.
17. We summarize our finding on the issue of age of the opposite party. It is not disputed at the Bar that the burden lies with the applicant to prove that opposite party was not qualified, being under-aged, to contest for the post of Sarpanch. That burden was discharged by him by adducing the Voter List of 2002 - Ext.1 and the Matriculation Certificate of the opposite party - Ext.2. For the reasons already recorded, we have found that 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. In the said context Ext.1 cannot be regarded as the contrary evidence having the superseding effect in as much as age of the parties as mentioned in the voter lists is not conclusive and they carry a probative value with rebutable presumption. 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 Certificate - 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. It may be mentioned here that, opposite party personally was not answerable for entry of such a date of birth, because she had no role to play at the time of her admission relating to the entry of the date of birth. 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. Therefore, in such a fact situation and on the face of Ext.C, the ratio in the case of Brij Mohan Singh (supra) and other decisions cited at the Bar in that context are applicable in favour of the opposite party. Accordingly, we find that 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-sustainable, are accordingly set aside.
18. So far as the other grounds raised by the applicant on the disqualification of the opposite party to contest the election being not a voter of the constituency, that issue was not pressed into service either before the learned Civil Judge (Jr. Division) or before the first appellate Court. Therefore, that issue has remained unanswered. In W,P.(C) No.1866 of 2004 filed by the applicant, he has also not taken a ground challenging to that deficiency in the findings recorded by the Courts below. Therefore, that issue deemed to have been not pressed and no further discussion in that connection is necessary. Be that as it may, the evidence on record is sufficient to dispense with that contention of the applicant.
19. Coming to the contention in W.P. (C) No.4838 of 2003 filed by the opposite party and the findings of learned Courts below, we find that learned Civil Judge was wrong in his decision to declare the applicant elected having secured the second highest vote, in as much as more than two candidates were contesting the said election. Therefore, the decision of the appellate Court in the above context is supported by the ratio in the case of Prakash Khandre v. Dr. Vijaya Kumar Khandre and Ors. . Be that as may, fact remains that once the opposite party is found not to be under-aged to contest the election and on that ground her election being held to be valid, this question becomes academic. Accordingly, this writ petition bears no merit.
20. For the reasons indicated above, we quash the impugned judgments of the Courts below and order declaring validity of the election of the opposite party as the Sarpanch of Badagaon Grama Panchayat and accordingly allow W.P.(C) No.4838 of 2003 and consequentially dismiss W.P.(C) No.1866 of 2004 being devoid of merit.
In the facts and circumstances of the case, parties are directed to bear their respective cost of litigation.
A. K. Parichha, J.
21. I agree.