Orissa High Court
Chandrakanti Jena vs Banalata Jena And Ors. on 10 February, 2004
Equivalent citations: 97(2004)CLT552, 2004 A I H C 1365, (2004) 97 CUT LT 552
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. The petitioner was elected as the Sarpanch of Alando Grama Panchayat in the district of Jagatsinghpur in the election held in 2002. Opposite party No. 1 who was also contesting for the post of the said Sarpanch in the election challenged the election of the petitioner under Section 31 of the Orissa Grama Panchayat Act before the Civil Judge (Junior Division), Jagatsinghpur, the Election Tribunal which was registered as Election Misc. Case No. 25 of 2002. The sole ground on which opposite party No. 1 prayed to set aside the election of the petitioner as Sarpanch was that the petitioner having not attained the age of twentyone years, as mandatorily required under Section 11 of the Orissa Grama Panchayat Act, was not eligible to contest the election. According to opposite party No. 1, the date of birth of the petitioner, as appears from her High School Certificate issued by the Board of Secondary Education, Orissa was '15.12.1982' and as such on the date fixed for filing the nomination for election, her age was nineteen years, one month and two days.
2. The contentions raised in the Election Misc. Case were strongly repudiated by the present petitioner in her objection stating inter alia that she was not below twentyone years of age on the date of filing of the nomination. According to her, she was shown more than twentyone years in the Voters List and as such was eligible to contest the election.
3. On the basis of inter pleadings of the parties the Election Tribunal framed as many as four issues and after scrutinising the documentary evidence and relying upon the High School Certificate of the present petitioner issued by the Board of Secondary Education (Matric Certificate) and other materials, held that the date of birth of the petitioner was 15.12.1982 and she had appeared in the Matriculation Examination in 1999. The date of birth mentioned in the High School Certificate, Ext. 2, was accepted as the correct date of birth of the petitioner and it was held that she was only nineteen years, one month and two days on the date of filing of her nomination. Having come to such conclusion, the Election Tribunal declared the election of the petitioner to the post of Sarpanch of Alando Grama Panchayat invalid. At the same time the Election Tribunal declared the election petitioner (opposite party No. 1 in this Writ Petition) who had secured the second highest votes and was more than twentyone years of age as the elected Sarpanch of Alando Grama Panchayat.
4. Being aggrieved by the said order of the Election Tribunal, the present petitioner preferred an appeal before the District Judge, Cuttack which was registered as Election Appeal No. 6 of 2003.
The appellate Court also after analysing the evidence on record and the law on the point arrived at the conclusion that there was nothing to interfere with the judgment and order of the Election Tribunal and dismissed the appeal, thereby upholding the findings of the Election Tribunal. The judgments and orders passed by the Election Tribunal and the appellate Court are sought to be challenged before this Court invoking the Writ Jurisdiction under Articles 226 and 227 of the Constitution of India. "
5. Before examining the inter se dispute, it would be just and proper to examine the provisions of law. Section 11 of the Orissa Grama Panchayat Act deals with the qualification for membership in the Grama Panchayat. It stipulates that no member of a Grama Sasan shall be eligible to stand for election as a Sarpanch if he has not attained the age of twentyone years.
6. The sole dispute which requires adjudication in the present Writ Petition is as to whether the petitioner who was contesting the election for the post of Sarpanch of Alando Grama Panchayat in the year 2002 was eligible to contest the election, in other words whether she had attained the age of twentyone years. According to the present opposite party No. 1, the date of birth of the petitioner as recorded in her Matriculation Certificate being 15.12.1982, she had not attained twentyone years of age to contest the election. To prove such allegation, opposite party No. 1 apart from adducing oral evidence relied upon Ext. 1, the Voters List, Ext. 2 the Matriculation Certificate of the petitioner showing her date of birth and Ext. 3, the School Admission Register of Alando High School showing the date of birth of the petitioner recorded therein. The petitioner, who was the opposite party No. 1 in the Election Misc. Case, had examined two witnesses on her behalf and had relied upon Ext. A, her Photo Identity Card showing her age. Ext. B, the Voters List of the year 1999, Ext. C, her birth certificate and Ext. D, her horoscope. After analysing all these documents according to the Election Code and Rules the Matriculation Certificate being the basis and foundation of age of a person, the Courts below held that the date of birth mentioned in the Matriculation Certificate of the petitioner, vide Ext. 2, being 15.12.1982, was the correct date of birth of the petitioner.
7. After perusing the materials available on record, we are not inclined to interfere with the concurrent findings of fact recorded by the Courts below in exercise of our Writ Jurisdiction. Accordingly, the finding that the petitioner had not attained the age of twentyone years when she contested the election for the post of Sarpanch, does not suffer from any irregularity or illegality and we decline to interfere with that. We hold that the petitioner was not eligible to contest the election for the post of Sarpanch of Alando Grama Panchayat held in the year 2002.
8. The other contention of Mr. Mishra, learned counsel for the petitioner that after declaring the petitioner's election as Sarpanch invalid, the Courts below acted illegally in declaring the present opposite party No. 1 as the elected Sarpanch, according to us, has some force.
9. The pleadings of the parties reveal that there were more than one candidate contesting the election for the post of Sarpanch. Even otherwise the Courts below have not kept in mind the provisions of Section 40 of the Orissa Grama Panchayat Act which read as follows :
"40. Grounds for which a candidate other than the returned candidate may be declared to have been elected : If any person who has lodged a petition, has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Civil Judge (Junior Division) is of opinion :
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by a corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes;
he shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."
Neither the trial Court nor the appellate Court has arrived at the conclusion that the present opposite party No. 1, the petitioner in the Election Misc. Case, had satisfied the requirements embodied in Section 40 of the Act. They have also not taken into consideration the total votes polled and the number of votes secured by the petitioner, opposite party No. 1 and the other contesting candidates. Admittedly it is not a case where there was allegation of corrupt practice against the petitioner. We have therefore no hesitation to set aside the portion of the order of the trial Court, confirmed by the appellate Court, declaring the present opposite party No. 1 (petitioner in the Election Misc. Case) elected as the Sarpanch of Atando Grama Panchayat.
10. Accordingly, we allow the Writ Petition in parts. The order declaring the election of the petitioner as Sarpanch of Alando Grama Panchayat invalid by the Courts below is confirmed and the order declaring the present opposite party No. 1 (petitioner in the Election Misc. Case) as the elected Sarpanch of the Alando Grama Panchayat is quashed. Parties to bear their own costs.
Sujit Barman Roy, C.J.
11. I agree.