Orissa High Court
Sri Darasingh Kumbhar vs State Of Orissa Represented By The ... on 6 July, 2004
Equivalent citations: 98(2004)CLT460, 2004 A I H C 4149, (2004) 2 CLR 653 (ORI) (2004) 98 CUT LT 460, (2004) 98 CUT LT 460
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. The LCR is available and both the parties agree for disposal of the writ petition at the stage of admission.
2. Heard.
3. Opposite Party No. 2 filed an Election Petition in the Court of Civil Judge (Junior Division), Sonepur under Section 30 of Orissa Gram Panchayat Act, 1965 (hereinafter referred to as 'the Act'), challenging to the election of the petitioner as the Sarpanch of Baladi Gram Panchayat held on 19.2.2002. In that petition Opp. Party No. 2 inter alia advanced the plea that petitioner is disqualified to be a-Sarpanch because his third child i.e. Pragati was born in 1998 and therefore provision in Clause (v) of Sub-section (1) of Section 25 read with provision in Clause (a) of Sub-section (2) of Section 25 of the Act is enforceable against him. Petitioner defended the case by stating that his third child i.e. the daughter Pragati was born on 31.3.1995 and therefore, even if he has three children he is not disqualified to continue as Sarpanch.
4. Both the parties led both oral and documentary evidence. The Opp. Party No. 2 besides examining himself as P. W. 1 tendered the evidence of his co-villagers P. W. 2 and also examined the Headmaster of the Government U. P. School, Baladi, P.W. 3, to prove the entry of date of birth of the first two children in the School Admission Register and the entries therein vide Ext. 1 series and the ANM of Bagbahali sub centre under Naikenpali PHC to prove that the third child of the petitioner i.e. Pragati was conceived with the expected date of delivery on 25.2.1990 but took birth on 23rd February, 1998 and having been admitted Polio Vaccinations etc. on different dates thereafter. The relevant entry vide serial No. 33 has been marked as Ext. 2/a from the Register Ext. 2. He also tendered certified copy of the order passed on 14.12.2001 by the Sub-Divisional Magistrate i.e. the Sub-Collector, Sonepur in CMC Nos. 296 and 297 of 2001 (Exts, 3 and 4 respectively) to prove that the birth certificate with the entry of the dates of birth of petitioner's eldest son and the daughter to be on 15.2.1991 and 31.3.1995 vide Exts. CD & E were granted on the direction of learned SDM on such applications but, without any inquiry either by SDM or the Medical Officer, PHC, Naikenpali and such documents are self-serving.
5. On the other hand, to falsify the claim of Opp. Party No. 2, petitioner examined himself as OPW No. 1 and a co-villager as OPW No. 2. In addition to that, he relied on the birth certificates Exts. C, D and E relating to his three children. The Admission Register of the daughter indicating the date of birth on 31.3.1995 (certified copy of that register is marked Ext. A). Emunisation Card in favour of his niece (elder brother's daughter) Ext. B.
6. On assessment of such oral and documentary evidence, learned Civil Judge accepted the contention of the petitioner that his 3rd child i.e. the daughter Pragati was born on 31.3.1995 and that is proved from Exts. C, D and E. Accordingly as per judgment delivered on 27.9.2003 he dismissed the election petition registered as Election Misc. Case No. 16 of 2002. Opp. Party No. 2 challenged that judgment in the Court of Addl. District Judge, Sonepur in RFA No. 73 of 2003. As per the impugned judgment delivered on 21.4.2004, learned Addl. District Judge re-assessed and appreciated the evidence on record and reversed the finding of the trial Court on the ground that when the second son pf the petitioner is shown to be a child born in February, 1995, that improbalises birth of Pragati in March, 1995. In that context, learned Addl. District Judge found Exts. C, D and E not to be documents of contemporary period and therefore not credible. On the other hand, he found that Exts. 1 to 4 and the evidence of P.Ws. 1 to 4 are sufficient to prove the contention of the Opp. Party No. 2 that the petitioner was blessed with the third child i.e. Pragati in 1988 i.e. after the cut off date in April, 1995. Accordingly he declared election of the petitioner as the Sarpanch, Baladi Gram Panchayat as invalid in accordance with Sub-section (2) of Section 38 of the Act and declared a casual vacancy to have been created in accordance with Clause (a) of that Sub-section.
7. Mr. Ram Das, learned Senior Counsel appearing for the petitioner argues that the above noted findings of the learned Additional District Judge are on a mis-reading of the evidence on record and the inferences drawn suffers from perversity. On the other hand, Mr. S. Mishra, learned counsel appearing for the Opp. Party No. 2 argues that factual finding recorded by the learned Additional District Judge does not suffer from jurisdictional error, illegality or perversity and therefore this Court need not interfere with the impugned judgment. He also argues justifying correctness of the factual finding recorded by the lower appellate Court.
8. Bone of contention of the petitioner is that the entry vide Ext. 2/a relates to his elder brother's daughter Pragatika and not the petitioner's daughter Pragati. P.W. No. 4 having admitted in his cross-examination that the latter 'ka' in vernacular was erased to read the said name as Pragati and that clinches the issue against the finding recorded by the appellate Court. He further argues that to substantiate that contention of the petitioner corroborating evidence is available from Exts. C, D and E. On a reference to the deposition of P.W. No. 4, it is seen that she stated that:
"7. In the column No. 24 in the name of "Pragatika" the word 'ka' has been erased."
She has also stated that Ext. B was signed by her. In Ext. B name of the child has been mentioned as Pragatika Kumbhar and the vaccination being prescribed for on the 1st year of the birth of the child. Different dates have been entered therein. From the aforesaid evidence on record as this Court finds no clear case is made out that the entries Ext. 2/a relates to daughter of Karan Singh Kumbhar. Erasing the word 'ka' does not ipso facto lead to such an inference when it is clearly noted that Pramodini and Darasingh Kumbhar are the parents of the child Pragati who was born on 12.5.1998. The reason for the aforesaid finding is that the entries in Ext. B has not been put to have been made by P.W. No. 4. As noted above, she has only admitted that she had issued that card and has subscribed Ext. B/1. Therefore, in the absence of proof as to who made the entries and whether he had any official capacity to make such entries after due verification, the entry of date of birth and the name therein cannot be co-related that entry No. 33, i.e. 2/a.
9. As a piece of corroboration, petitioner strongly relied on Exts. C, D and E. In Ext. C, the issuing authority of the Register of births and deaths has noted that birth of Prakash (1st son of the petitioner) was on 15.2.1991. Similarly, in Ext. D, it is noted that date of birth of Raju (2nd son of the petitioner) was on 25.10.1993 and in Ext. E, date of birth of Pragati (daughter of the petitioner) was noted as 31.3.1995. The aforesaid entry ipso facto do not counter the entry in Ext. 2/a so as to take away the evidentiary value thereof because Opp. Party No. 2 has proved on record that it is in 2001 only that the petitioner filed application before the Sub-Collector, indicating the date of birth of his children and making the prayer to direct the Medical Officer, PHC, Naikenpali to register the date of birth accordingly. It also appears from Exts. 3 and 4 that the SDM (Sub-Collector, Sonepur) issued such a direction on mere application filed by the petitioner. Therefore, as rightly contended by learned Additional District Judge Exts. C, D and E, in the context of the issue involved in the case, have lost their credibility to accept such dates of birth as noted in the said certificates.
10. P.W. No. 4, in her evidence deposed that :
"10. One Arjun Nanda is my brother-in-law (brother of my husband). Arjun Nanda was also contesting for the post of Sarpanch along with the Pet. & O.P. It is not a fact that the entry found in relevant column are made by me at the instance of the petitioners for the purpose of the case."
Though learned counsel for the petitioner did not argue anything on the interestedness of P.W. No. 4 but while placing the evidence on record, by him, this Court has taken note of the above quoted evidence of P.W. No. 4. In the event of credibility to the plea of petitioner in support of his defence in the Election Petition, this Court could have thought of finding out interestness of P.W. No. 4 as a ground on the relevant aspect. But as noted above, when the Petitioner has not been able to prove that Pragati was born in 1995 but not in 1998, therefore, there is no necessity to delve into that situation.
11. This Court has already noted in substance the findings and the reasons assigned by learned Additional District Judge. A further reiteration of the same is not necessary but this Court finds that the appellate Court has not committed any perversity but has recorded his impression about the evidence on record and accordingly decided the issues. When the petitioner is before this Court invoking the writ jurisdiction, it is not proper for this Court to behave as the 1st appellate Court and to go into the tit-bits of the facts and circumstances so also the evidence on the face of the satisfaction that the appellate Court has not committed any illegality or perversity. When this Court concurs with the finding of the appellate Court, as noted above, it also agrees with the incorrectness of the finding recorded by the trial Court.
12. For the reasons indicated above, this Court finds the writ petition be devoid of merit and accordingly dismissed. Parties are directed to bear their respective costs of litigations.