P.K. Tripathy, J.
1. Smt. Mayarani Biswas (Petitioner in WP(C) No. 693 of 2005) filed Election Petition under Section 31 of the Orissa Grama Panchayat Act, 1964 (in short 'G.P. Act') challenging to the Notification by which Smt. Pravasini Jena (Petition in WP(C) No. 10865 of 2004) was declared elected as the Sarpanch of Kantalabai Grama Panchayat. The result was so declared on 28.2.2002. That Election Petition was registered as Election Dispute No. 19 of 2002 in the Court of Civil Judge (Junior Division), Khurda. For the sake of convenience, in this judgment Smt. Mayarani Biswas is referred to as the Election Petitioner and Pravasini Jena as the Opp. Party.
2. In the Election Petition, petitioner challenged to the election of the Opposite Party as the Sarapanch, precisely on three grounds, viz.,
(i) Pravasini gave birth to the 3rd child, i.e. the daughter Ranu @ Madhusmita Jena on 6.5.1997, i.e. after the expiry of the cut off date on 21.4.1995, as provided in Section 25 (i)(v) of the G.P. Act;
(ii) The Opp. Party does not belong to 'Katia' caste but she belongs to 'Khatia' caste and that the latter is not a Scheduled Caste as per the Presidential Order for the State of Orissa under Article 341 of the Constitution of India and therefore, she should not have been permitted to contest from the reserved constituency of Kantalabai Grama Panchayat; and
(iii) She is unable to read and write Oriya, which is a disqualification under Section 11 (b) of the G.P. Act.
She further stated that her aforesaid objection, for no good reason, was rejected by the Election Officer who scrutinized the nomination paper. She described the Opposite Party as Pravasini Jena @ Ranta Prava Jena, wife of Bhagirathi Jena @ Kashinath Jena.
The Opp. Party denied to all such allegations and stated that she belongs to village Jhatinuagaon and not Jhatinuagaon Colony and the latter is a separate village situated at a distance of about 2 Kms. from village Jhatinuagaon. She also denied to the allegation that she begot a third child in the year 1997 or that she was incapable of reading and writing Oriya. She also stated that she belongs to 'Katia' caste and in proof of that a Caste Certificate has been granted in her husband's name describing him to be a member of Scheduled Caste.
3. In course of hearing of the election dispute, both the parties adduced oral and documentary evidence. Petitioner examined four witnesses including herself as P.W. No. 4 and tendered in evidence relevant entry in the Birth Register -- Ext. 1, Birth Certificate --Ext. 2, certified copy of the Record of Right of the year 1962 and 2003 respectively marked Ext. 3 & 4, and photo Identity card of the Opp. Party -- Ext. 5. As it appears form Order No. 66, dated 29.1.2004 of the learned Civil Judge, Opposite Party produced two documents, viz., Photo Identity Card issued in her favour as Ext. 5 and the Life Birth Report in Form No. 2 as Ext. 6. Petitioner did not oppose to acceptance of such document as evidence on record. Thus, learned Civil Judge passed order to accept such documents as Exts. 5 & 6. Such documents should have been marked as Exhibits on behalf of the Opp. Party. Since no objection was raised in the Courts below or at the time of argument before us relating to marking of those documents as Exts. 5 & 6, therefore, we do not deliberate any further in that respect. Opposite Party examined six witnesses including herself as O.P.W. No. 1 and her husband as O.P.W. No. 5 and relied on the above rioted two documents besides the Caste Certificate --Ext. A, Birth Report -- Ext. B, Resident Certificate-- Ext. C and the judgment of this Court in OJC No. 3347 of 1987 marked Ext. D.
4. On assessment of evidence on record, learned Civil Judge found that Opposite Party belongs to 'Khatia' caste and therefore she is not a member of Scheduled Caste; that she is Pravasini Jena @ Ratna Prava Jena and accordingly mother of three children having given birth to the third chile in 1997 and that, petitioner did not prove that Opposite Party is not capable of reading and writing Oriya. Because of the aforesaid findings relating to the caste and number of children, learned Civil Judge declared election of the Opposite Party as illegal and void. He further held that no other candidate being contesting the case, petitioner was declared as the Sarapanch in place of Opposite Party.
5. Opposite Party challenged that order before the District Judge, Khurda at Bhubaneswar in an appeal filed under Section 38(4) of the G. P. Act. Learned District Judge, after hearing the parties and perusing the evidence on record vis-a-vis the finding recorded by the Trial Court, upheld the illegality and voidness of the status of the Opposite Party as the Sarpanch on the ground that she was having three children. Learned District Judge, however, held that husband of the opposite party being 'Katia' by caste, which is admittedly a Scheduled Caste according to the Presidential Order, therefore, on proving that she is the wife of that scheduled caste person, she has to be accepted as a person belonging to scheduled caste. After declaring election of the opposite party to be illegal and void, learned District Judge took note of the fact that besides the petitioner and the Opp. Party other candidates were contesting for the post of Sarpanch but such other candidates were not made parties to the election dispute and therefore, disqualification of the Opp. Party does not automatically entitle the petitioner to be declared as elected in view of the ratio of the Apex Court in the case of Prakash Khandre v. Dr. Vijaya Kumar Khandre and Ors., : [2002]3SCR994 . Accordingly, on declaring the election of the opposite party as illegal he decided that the election is countermanded.
6. Being aggrieved by the finding of the appellate court on declaring the Opp. Party to be a member belonging to Scheduled Caste and setting aside the directions of the Trial Court for allowing her to be declared as the elected Sarpanch, petitioner has filed WP(C) No. 693 of 2005. On the other hand, being aggrieved by the finding relating to the disqualification on the ground of three children, Opp. Party has challenged to the result of countermanding the election as per the impugned decision of learned District Judge so also to the relevant finding of learned Civil Judge.
7. On consent of the parties, we heard both the Writ Petitions analogously and this judgement shall abide result in both the Writ Petitions.
8. It is the settled principle of law that the Writ Court cannot exercise jurisdiction as an appellate authority while exercising power of superintendence or the jurisdiction to issue a writ of certiorari. It has to find out from the impugned orders as to whether the procedure adopted by the courts below is in conformity with the law and the findings recorded is on the basis of appreciation of evidence in accordance with law and also whether the subordinate authority acted within or without jurisdiction. Therefore, in the absence of illegality or perversity, a factual finding is not to be disturbed by the Court exercising writ jurisdiction. It is also the settled position of law that under Articles 226 & 227 of the Constitution power of interference of the writ court is limited to see that the lower court or the Tribunals function within the limits of its authority. In exercise of such jurisdiction an apparent error on the face of record should also be corrected by the High Court.
9. Before dealing with the contentions raised by the parties vis-a-vis the findings recorded by the courts below, we may indicate that concurrent findings and conclusion have been recorded by the Court below on the relevant issue that Opp. Party is capable to read and write Oriya and accordingly such contention of the petitioner was rejected. No argument was advanced before us challenging to that finding. So, on that issue we uphold the finding of the Courts below.
10. On the issue of disqualification of the Opp. Party as provided in Section 25(i)(v) read with the Proviso, Opp. Party argued that findings recorded by both the Courts below are factually incorrect and legally not sustainable.
11. Her argument is that the findings of the Court below are mostly on the basis of Exts. 1 & 2 and the evidence of the Opposite Party and her husband that there is no person named Bhagirathi Jena in their village. According to her Exts. 1 & 2 are not reliable and if that evidence on record is stretched to the last point of elasticity, then it may amount to a fact situation that Bhagirathi Jena, husband of Opp. Party got his third child through one Ratnaprava and petitioner not being Ratnaprava and she having not more than two children, therefore, on that score she was not disqualified to contest for the post of Sarapanch. Her further contention is that burden of proof of she having three children, being on the petitioner, and that burden having not been discharged by the petitioner, therefore, the Courts below did not properly appreciate that position of law as well as the evidence on record and thereby committed an illegality. In that context, contention of the petitioner is that Exts. 1 & 2 run consistent to Ext. B that Bhagirathi Jena, the husband of the Opp. Party begot the third child on 6.5.1997. Such documents being admissible under Section 35 of the Indian Evidence Act, the presumption arising out of such documents was not rebutted by the Opp. Party. It was neither pleaded nor proved that Bhagirathi Jena has a second wife name Ratnaprava and therefore third child of Bhagirathi is attributable to the Opp. Party as the mother and that in Ext. 2 it has been clearly stated that Ratnaprava is the alias name of the Opp. Party. In that context, oral evidence from the side of the petitioner and the admission from the side of the opposite party relating to no other person with the name Bhagirathi Jena living in their village are sufficient to prove the allegation against the Opp. Party. She accordingly argued that when the Trial Court as well as the appellate court accepted that position on record and recorded findings accordingly, this Court while exercising the power of superintendence, should not interfere with that factual finding.
12. Indeed, the Writ Court is not the Court of appeal and we have already indicated as to in what circumstance the Writ Court can interfere with the factual finding of the courts below. To find out the correctness or otherwise in the argument of the opposite party in the context of the third chile, we have perused the evidence on record. Ext. 1 is the extract of the Register of Birth and death maintained by the Primary Health Center (upgraded), Tangi. The entry is relating to the life birth. That Register is maintained in Form No. 11 in accordance with Rule 13 of the Orissa Registration of Births and Deaths Rules, 1970. That Rule has been repealed and replaced by the Orissa Registration of Births and Deaths Rules, 2001. But in this case the Register being maintained under the Rules of the year 1970, therefore the Rules of the year 2001 have no applicability. In Ext. 1 under column No. 8 father's name has been mentioned as 'Bhagirathi Jena' and under column No. 13 mother's name has been mentioned as 'Ratnaprava'. Under column No. 19 it has been described that the child was the third issue. Under column No. 23 it has been mentioned that a certified copy was issued on 25.1.2002. Ext. 2 is that certified copy issued in Form No. 9 under the aforesaid Rule, 1970. It is mentioned in Ext. 2 that 'CERTIFICATE OF BIRTH issued under Section 17 of the Registration of Births and Deaths Act, 1969'. Section 17 of the Registration of Birth and Deaths Act, 1969 states that :
'17. Search of births and deaths register: (1) Subject to any rules made in this behalf by the State Government, including rules relating to the payment of fees and postal charges, any person may :
(a) cause a search to be made by the Register for any entry in a register of births and deaths; and
(b) obtain an extract from such register relating to any birth or death;
Provided that no extract relating to any death, issued to any person, shall disclose the particulars regarding the cause of death as entered in the Register.
(2) All extracts given under this Section shall be certified by the Registrar or any other officer authorized by the State Government to give such extracts as provided in Section 76 of the Indian Evidence Act, 1872, and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates.'
It is therefore, explicitly clear that facts noted in the certificate in Form No. 9 is to be an extract of the relevant entries from the Register maintained in Form No. 11 and not otherwise. On comparison of relevant entries in Ext. 1 and Ext. 2 it appears that whereas the name of the father has been similarly described in both the documents, name of the mother in Ext. 2 has been described as 'Smt. Pravasini Jena @ (Pravasini)'. The Medical Officer of the upgraded P.H.C., Tangi being the Registrar of Births and Deaths and the issuing authority of the certified copy, neither he was examined nor the circumstance has been explained as to how the name 'Pravasini' was imported to the relevant entry in Ext. 2, when no such name has been noted in Ext. 1. When in accordance with the above quoted Sub-section (2) of Section 17 such certificate has been made admissible in evidence under Section 76 of the Indian Evidence Act, the authorities granting such certificate should be careful and provide the correct and exact entry instead of being casual, negligent or mischievous as the case may be. Because of those contradictions, we find that Ext. 2 is not reliable even if a public document. To that extent, we find that the Courts below without making proper scrutiny of the said document and relevant provision of law illegally accepted Ext. 2 as corroborative to the other evidence on record relating to birth of the third child of the Opposite Party. Therefore to that extent we find illegality in the finding recorded by the Trial Court (i.e., relating to acceptance of Ext. 2 as corroborative evidence in proof of birth of the third child by the Opp. Party).
13. On exclusion of Ext. 2, and on perusal of the other evidence on record so also the findings recorded by the Courts below we find that it is not proved on record that Ext. B was the information given by Bhagirathi Jena. Be that as it may, the relevant entries in Ext. 1 have been proved and presumption arising out of that public document indicates birth of the third child to Bhagirathi Jena and his wife's name has been described at Ratnaprava. It has been stated by the P.Ws. that Opposite Party is also known as Ratnaprava. That oral assertion is circumstantially found relevant and corroborated inasmuch as both Opp. Party and her husband admitted in the process of cross-examination that there is no other person in their village named Bhagirathi Jena. In a case of this nature, on such an issue though initial burden of proof always rests on the petitioner, but under the given facts and evidence that burden was discharged by the petitioner by tendering the aforesaid rebutable presumptive evidence. Disqualification of the Opposite Party being challenged on the ground of begetting the third child and when from Ext. 1 and the oral evidence led by the petitioner the burden has been prima facie discharged, it was incumbent on the part of the Opp. Party to adduce evidence to show that Ratnaprava is another lady in the life of Bhagirathi and she is other than Pravasini (the opp. party). No evidence whatsoever was led by the Opp. Party to discharge the onus in the context of the third child. Therefore, even on excluding Ext. 2 and Ext. B the appreciation of evidence on record by the courts below on the basis of other evidence that Opp. Party is the mother of the third child being the wife of Bhagirathi Jena cannot be regarded as illegal or suffering from perversity. We are also precluded from taking an alternative view even if such alternative view is regarded as the other possible view. Thus, we confirm the finding recorded by the Courts below that Opp. Party was disqualified under Section 25(1)(v) of the G. P. Act.
14. The other issue raised is regarding the status of the Opp. Party as a member belonging to the Scheduled Caste. Any decision on that issue becomes academic because of the finding on the preceding issue. Therefore we do not deliberate on that issue being of no consequence whether or not decided in favour of the petitioner.
15. Petitioner argued that on the declaration of the election of the Opp. Party as void, she (petitioner) is entitled to the relief of declaration that she has been elected in view of the provision of law in Section 34 read with Section 38(2)(b) and when she had secured the second highest vote, such relief be granted to her. Rejecting such argument of the petitioner, learned District Judge recorded the finding that other persons contesting the election were not made party to the election dispute and in view of the ratio in the case of Prakash Khandre v. Dr. Vijaya Kumar Khandre and Ors., AIR 2002 SC 2345, in such a case the proper recourse should be not to grant the relief which petitioner seeks. We do not find any error in that view of the learned district Judge. Hence that prayer of the petitioner is rejected.
In the result the direction of the District Judge is upheld and both the Writ Petitions are disposed of accordingly. No cost.
Pradip Mohanty, J.
16. I agree.