Orissa High Court
Mamita Thati vs Nepura Pradhan And Another .... .... ... on 13 September, 2013
Author: S.C.Parija
Bench: S.C. Parija
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.9766 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Mamita Thati .... .... Petitioner
-Versus-
Nepura Pradhan and another .... .... Opp. Parties
For Petitioner : M/s. P.K.Nayak,
A.K.Mahapatra,
S.S.Mishra and
S.K.Panigrahi
For Opp. Parties : M/s. J.K.Panda
PRESENT :
THE HONOURABLE SHRI JUSTICE S.C. PARIJA
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Date of Judgment: 13.09.2013
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S.C. PARIJA, J.This writ petition has been filed challenging the judgment dated 12.04.2013, passed by the learned District Judge, Boudh, in Election Appeal No.04 of 2013, allowing the same in part and confirming the judgment dated 06.02.2013, passed by the learned Civil Judge (Jr. Division), Kantamal, in Election Petition No.05 of 2013, holding that the petitioner was not eligible to file her nomination papers to contest in the election for the post of Sarpanch of Baragochha Grama Panchayat, as her age was below 21 years and accordingly declaring the election of the petitioner as Sarpanch of the said Grama Panchayat as void.
2. The brief facts of the case are that the result of the election for the post of Sarpanch of Baragochha Grama Panchayat was declared on 21.02.2012, in which, the present petitioner, having secured the highest number of votes, was declared as the elected Sarpanch. Being aggrieved by the result of election, opposite party no.1 filed Election Petition No.05 of 2012 before the learned Civil Judge (Jr. Division), Kantamal, alleging therein that the actual name of the petitioner is Sasmita Danta and she is the daughter of Bhumisuta Danta and Prajapati Danta of village Baragochha. The petitioner had completed her primary education from EGS M.E. School, Baragochha and thereafter took admission in Sri Jagannath High School, Sagada. After passing in the High School Certificate Examination, the petitioner took admission in Panchayat College, Palsagora. It was further averred that the petitioner got married to one Santunu Thati, son of Alekh Thati and Smt. Pira Thati of village Baragochha and after her marriage, she changed her name as Mamita Thati and enrolled her name in the electoral roll by giving false information regarding her age and name. It was accordingly prayed that as Sasmita Danta and Masmita Thati are one and the same person and her age is below 21 years, as per the educational certificates, she is not eligible to contest in the election for the post of Sarpanch and therefore her election to the post of Sarpanch of Baragochha Grama Panchayat be declared null and void and the opposite party no.1 be declared as the elected Sarpanch of the said Grama Panchayat. The present petitioner, who was opposite party no.1 in the election petition, refused to accept the registered notice, as per the endorsement of the postal authorities and was accordingly set ex parte.
3. The Election Officer-opposite party no.2 appeared and filed objection/counter stating therein that before publication of electoral roll for the Grama Panchayat Election of 2012, a preliminary electoral rolls for every wards of the Grama were duly published inviting claims and objections from any of the aggrieved persons and no objection having been raised with regard to preliminary electoral roll, specifically against the electoral entry of the present petitioner, the electoral roll was finalized and published as per Rule 8(1) of the Orissa Grama Panchayat Election Rules. It was further submitted that the nomination paper of the present petitioner was scrutinised specifically with regard to her name and age, as given in the final electoral roll published for Bargochha Grama Panchayat and therefore there was no irregularity or illegality in accepting the nomination paper of the petitioner, which has been found to be valid.
4. On the pleadings of the parties, learned Civil Judge framed the following issues:-
(i) Whether the present election petition is
maintainable?
(ii) Whether there is cause of action to file this
petition?
(iii) Whether the petition is bad for non- joinder of necessary parties?
(iv) Whether O.P.No.1 was eligible to be nominated for the post of Sarpanch of Baragochha G.P. for the last Panchayat election and her nomination was validly accepted by the Election Officer, Kantamal?
(v) Whether the last election for the post of Sarpanch of Baragochha G.P. is liable to be declared as void?
(vi) Whether the petitioner is entitled to be elected as Sarpanch of Baragochha.P.?
(vii) Whether the petition is entitled to get any other relief/reliefs?
5. During trial of the election petition, opposite party no.1 examined ten witnesses and relied upon the documents marked as Exts.1 to 19. The Election Officer-opposite party no.2 examined himself and relied upon three documents marked as Exts.A to C.
6. Learned Civil Judge after considering the evidence on record, both oral and documentary, came to find that the present petitioner is below 21 years of age on the date of filing of her nomination and therefore she was not eligible to contest for the post of Sarpanch of Baragochha Grama Panchayat. Accordingly, her election has been declared as void and opposite party no.1 has been declared as the elected Sarpanch of the said Grama Panchayat.
7. Being aggrieved by the judgment of the learned Civil Judge, the present petitioner moved the learned District Judge, Boudh, in Election Appeal No.04 of 2013. Learned Appellate Court reappreciating the evidence on record and considering the findings of the learned Civil Judge, has confirmed the said findings that the election of the present petitioner to the post of Sarpanch of Baragochha Grama Panchayat is null and void. However, the order of the learned Civil Judge declaring the opposite party no.1 as the elected Sarpanch of the said Grama Panchayat has been set aside and the Election Officer, Kantamal has been directed to conduct a fresh election.
8. Learned counsel for the petitioner submits that as the impugned judgment of the learned Civil Judge has been passed ex parte, without affording an opportunity of hearing to the petitioner, the same is liable to be set aside. In this regard, it is submitted that no notice had been served on the present petitioner and subsequently, on coming to know that she has been set ex parte, she filed an application under Order 9 Rule 7 CPC before the learned Civil Judge along with an application to accept the documents like Voter Identity Card and the certified copy of the Voter List, which have been rejected by the learned Civil Judge by order dated 04.02.2013 under Annexure-3 series. Learned counsel for the petitioner accordingly submits that as the Voter Identity Card and the Voter List prepared by the Election Officer under the provisions of the Orissa Grama Panchayat Election Rules clearly reveals that the petitioner was born in the year 1989 and was aged about 22 years at the time of filing of her nomination, the same should have been accepted by the Courts below. It is further submitted that as the author of the documents relied upon by opposite party no.1 has not been examined in the Court to prove the contents of such documents, the same could not have been relied upon by the Courts below in coming to hold that the petitioner was below the age of 21 years at the time of filing of her nomination and is therefore ineligible to contest the election for the post of Sarpanch.
9. Learned counsel for the opposite party no.1 submits that as opposite party no.1 had specifically averred in her election petition regarding the fact that Sasmita Danta and Mamita Thati are the one and the same person and her age is below 21 years at the time of filing of the nomination for the post of Sarpanch and as the documents filed and proved clearly establish that the petitioner was below the age of 21 years, the impugned judgments of the Courts below cannot be interfered with.
10. In this regard, it is submitted that as some of the documents were certified copies, which had been received under the RTI Act and the other documents have been produced and proved by the custodian of such documents, it cannot be said that the findings of the Courts below are not based on materials on record. It is accordingly submitted that as the evidence on record, both oral and documentary, clearly establishes that Sasmita Danta and Mamita Thati are one and the same person and her date of birth is 01.04.1992, as per the school records, she had not attained the age of 21 years at the time of filing of the nomination paper for the post of Sarpanch and therefore both the Courts below have rightly found her ineligible and disqualified to hold the post of Sarpanch of Baragochha Grama Panchayat.
11. As regard the plea of the petitioner that she has been set ex parte without any notice being served on her, learned counsel submits that the notice sent to the petitioner by registered post was received back with the postal endorsement that the addressee refused to accept the same. Accordingly, learned Civil Judge vide order dated 20.06.2012 set her ex parte. Against the said order of the learned Civil Judge, the petitioner moved this Court in W.P.(C) No.1224 of 2013. Thereafter, petitioner chose to remain silent and allowed the proceeding to continue before the learned Civil Judge. After conclusion of hearing, when the matter was posted for judgment, petitioner filed an application under Order 9 Rule 7 CPC, which was rejected by the learned Civil Judge, vide order dated 04.02.2013.
12. It is further submitted by the learned counsel for opposite party no.1 that after passing of the final judgment dated 06.02.2013 by the learned Civil Judge, the petitioner assailed the same before the Appellate Authority. Subsequently, W.P.(C) No.1224 of 2013 was dismissed as not pressed by order of this Court dated 07.03.2013.
13. It is accordingly submitted that the order setting the petitioner ex parte having become final and she having not filed any application under Order 9, Rule 13 CPC for setting aside the ex parte judgment and instead, she having assailed the same on merit before the Appellate Authority, it is not open for the petitioner to raise the said issue in appeal.
14. On a perusal of the impugned judgment of the learned Civil Judge, it is seen that as regard the allegations made in the election petition that Sasmita Danta and Mamita Thati are one and the same person, the present opposite party no.1 and her husband (P.Ws 1 and 2) have specifically stated so in their evidence and that after marriage of Sasmita Danta with Santunu Thati, she has changed her name to Mamita Thati. P.Ws 3 and 4, who are co- villagers have deposed in their evidence that Sasmita Danta and Mamita Thati are one and the same person and after her marriage to one Santunu Thati, she has changed her name as Mamita Thati and that she is the youngest daughter of Prajapati Danta and Bhumisuta Danta. P.W.5, who is the niece of Prajapati Danta, has stated in her evidence that Sasmita Danta and Mamita Thati are one and the same person and her uncle Prajapati Danta has three daughters and one son and Sasmita Danta @ Mamita Thati is the third and youngest daughter of her uncle Prajapati Danta. P.W.5 has further stated that once Sasmita was a student of Baragochha EGS M.E.School. P.W.6 is another witness of village Baragochha, who has reiterated the fact that Sasmita Danta and Mamita Thati are one and the same person and she is the youngest daughter of Prajapati Danta and has got married to one Santunu Thati and after her marriage she has changed her name to Mamita Thati.
15. P.W.7, the Principal of Panchayat College, Palsagora, P.W.8, the Headmaster of Sri Jagannath High School, Sagada, and P.W.9, the Secretary of EGS M.E.School of Bargochha have stated in their evidence that Sasmita Danta, daughter of Prajapati Danta and Bhumisuta Danta was the student in their educational institutions. P.W.9 has specifically stated that he personally knows Prajapati Danta and Bhumisuta Danta, as he is a co-villager.
16. On the basis of such evidence on record, both oral and documentary, learned Civil Judge has come to hold that Sasmita Danta and Mamita Thati are one and the same person and after marriage she has changed her name as Mamita Thati, wife of Santunu Thati.
17. As regard the age of the petitioner and her eligibility to contest the election for the post of Sarpanch, learned Civil Judge has taken into consideration Exts.1 to 5, which relate to entries in the records of the educational institutions, in which Sasmita Danta @ Mamita Thati had studied. The said documents clearly reveal that the date of birth of Sasmita was 01.04.1992. Ext.7, which is the copy of the affidavit filed by the petitioner along with her nomination papers reveals that Sasmita Danta and Mamita Thati are one and the same person and her father's name is Prajapati Danta. Ext.14 has been produced by the Secretary of EGS M.E.School, Baragochha (P.W.9), which reveals that Sasmita Danta and Mamita Danta are one and the same person and her age is 01.04.1992. Ext.15 reveals that Sasmita Danta, daughter of Bhumisuta Danta and Prajapati Danta had taken admission in Sri Jagannath High School, Sagada on 08.04.2005 and her date of birth is 01.04.1992. The original affidavit filed by the petitioner along with her nomination paper (Ext.18) reveals that Mamita Thati and Sasmita Danta are one and the same person and her father's name is Prajapati Danta.
18. On the basis of the aforesaid documentary evidence on record, learned Civil Judge has come to hold that the date of birth of the present petitioner is 01.04.1992 and at the time of filing of the nomination paper for the post of Sarpanch of Baragochha Grama Panchayat on 12.01.2012, her age was below 21 years. Accordingly, learned Civil Judge has proceeded to hold that the election of the petitioner for the post of Sarpanch of Baragochha Grama Panchayat is not valid and has accordingly declared the same to be void. As the present opposite party no.1 had polled next highest number of votes, she was declared as the elected Sarpanch of the said Grama Panchayat.
19. Before the Appellate Court, the present petitioner challenged the aforesaid judgment on the ground that the learned Civil Judge has erroneously assessed the evidence adduced by the opposite party no.1 and on improper appreciation has reached a wrong conclusion that the petitioner was below the age of 21 years at the time of filing of her nomination papers and was therefore not eligible to contest for the post of Sarpanch. The petitioner also assailed the order of the learned Civil Judge, declaring the present opposite party no.1 as the elected Sarpanch of Baragochha Grama Panchayat. The plea of the petitioner having been wrongly set ex parte and the illegal rejection of her application under Order 9 Rule 7 CPC was also raised before the Appellate Court.
20. From the impugned judgment of the Appellate Court it reveals that the petitioner, after conclusion of hearing of the appeal on 02.04.2013 and posting of the same for judgment, filed an application under Order 41 Rule 27 CPC along with original Voter Identity Card and certified copy of Electoral Roll, to be admitted as additional evidence, which has been rejected.
21. The Appellate Court on a reappreciation of the evidence on record has confirmed the findings of the learned Civil Judge that the petitioner was below the age of 21 years at the time of filing of her nomination papers and was therefore not eligible to contest for the post of Sarpanch. In this regard, the Appellate Court has taken note of the Electoral Roll (Ext.A) and the original Voter Identity Card, filed by the petitioner as additional evidence and relying upon the decisions of the apex Court in Sushil Kumar -Vrs- Rakesh Kumar, AIR 2004 SC 230 and State of Punjab - Vrs- Mahinder Singh, AIR 2005 SC 1868, has come to hold that the age and date of birth mentioned in the Voter List and Election Identity Card are not conclusive proof of age and that the date of birth recorded in the school register has more probative value, as per Section 35 of the Indian Evidence Act.
22. Coming to the plea of the petitioner that her application under Order 9 Rule 7 CPC has been wrongly rejected by the learned Civil Judge, the Appellate Court has come to hold that as the petitioner had not filed application under Order 9 Rule 13 CPC before the Court below and she has exercised her option of filing appeal against the final judgment, she is estopped from raising the issue before the appellate forum.
23. As regard the order of the learned Civil Judge declaring opposite party no.1 as the elected Sarpanch, the Appellate Court has come to hold that as there were more than two candidates in the election fray and it is not known as to what would have been the number of votes in favour of other contesting candidates, had the disqualified candidate not been allowed to contest the election, the order declaring opposite party no.1 as the elected Sarpanch is wrong and has accordingly set aside the same.
24. Section 11(b) of the Orissa Grama Panchayat Act provides that no member of a Grama Sasan shall be eligible to stand for election as a Sarpanch or Naib Sarpanch, if he/she has not attained the age of 21 years.
25. The plea of the petitioner that her application under Order 9, Rule 7 CPC has been wrongly rejected by the learned Civil Judge, is erroneous and misconceived, in asmuch as, the same admittedly had been filed after closure of hearing and posting of the matter for judgment. Order 9, Rule 7 CPC postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed only in the event, the suit had not been heard as in a case where hearing of the suit was complete and the Court had adjourned a suit for pronouncing the judgment, an application under Order 9, Rule 7 would not be maintainable. (See Arjun Singh V. Mohindra Kumar and others, AIR 1964 SC 993).
26. In the present case, as the petitioner had not filed any application under Order 9 Rule 13 CPC, for setting aside the ex parte judgment passed by the learned Civil Judge and instead had assailed the said judgment on merit in appeal before the Appellate Court, she is estopped from raising the plea now before this Court, in the present writ petition.
27. On an analysis of the evidence, both oral and documentary, as discussed above, the findings of the learned Civil Judge and the Appellate Court that the petitioner was not eligible to file her nomination papers to contest in the election for the post of Sarpanch of Baragochha Grama Panchayat, as she had not attained the age of 21 years, cannot be faulted. It is well settled that in exercising power under Articles 226/227 of the Constitution, the High Court does not act as an appellate authority. It will not review or reweigh the evidence upon which the findings of the inferior courts purports to be based, unless the findings are perverse or patently erroneous and de hors the factual and legal position on record.
28. In view of the above, I do not find any infirmity or illegality in the judgment of the learned Civil Judge as well as the judgment of Appellate Court, so as to warrant any interference in this writ petition.
The writ petition being devoid of merits, the same is accordingly dismissed. No costs.
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S.C.Parija, J.
Orissa High Court, Cuttack, Dated the 13th September, 2013/B.B.Pati