P.K. Tripathy, J.
1. Order of the learned District Judge, Khurda at Bhubaneswar passed on 09.08.2004 in Election Misc. Case No. 114 of 2002 registered under Section 45-B of the Orissa Panchayat Samiti Act, 1959 (in short 'the Act 1959') in disqualifying the writ petitioner, who was opp. party No. 3 in the Court below, to hold the post of Samiti Sabhya (Panchayat Samiti Member) of Haripur Grama Panchayat as well as the post of Chairman of Jatni Block is under challenge. That application under Section 45-B was filed by opp. party No. 1. The Opp. Parties 1 and 2 in the Court below are the two Government Officials involved in the process of scrutiny and election and in this writ petition they are Opp. Parties 2 and 3.
2. Opp. Party No. 1 filed the above Election Misc. Case inter alia alleging disqualification of the petitioner on the ground that the 3rd child of the petitioner was born on 25.05.1998 and, therefore, in view of provision of law in Clause (v) of Section 45 of the Act 1959, petitioner was not eligible to contest and hold the post as a member of the Panchayat Samiti or the Chairman of the Block. According to the case of the Opp. Party No. 1, petitioner (O.P.W. No. 4) married to Santilata (O.P.W. No. 3) in the year 1991 and out of the wedlock they were blessed with three children. Amongst them, the eldest daughter Baijayantimala was born on 19.06.1994, the second daughter Baisali was born on 06.06.1996 and the third issue, i.e., a son namely Biswabhusan was born on 25.05.1998. That disqualification was brought on Statute Book vide Orissa Act No. 7 of 1994 and a period of one year had since expired much before 25.05.1998, therefore the petitioner was disqualified to hold both the above noted posts. That contention of the Opp. Party No. 1 was contested by the petitioner. In that context, his contention in the Court below was that Baijayantimala was not born out of the wedlock between him and Santilata, but she is the natural born daughter of Gadadhar Mangaraj (O.P.W. No. 1). Said Gadadhar suffered from leprosy and therefore, to avoid difficulty in her marriage, petitioner adopted her as a daughter when she was about six months old. By then, petitioner was a bachelor. He denied to the allegation of his marriage in the year 1991 and stated that he married to Santilata in the year 1995 and, therefore, Baijayantimala who was born in the year 1994, cannot be counted as his daughter.
3. On the basis of such rival contention, six issues were framed by learned District Judge to determine the dispute. Out of the same, issue Nos. 3 and 5 were the two relevant and vital issues, which read as hereunder:
(3) Whether the O.P. No. 3 is not eligible to stand for election for Member of Panchayat Samiti and also for Chairmanship of the Panchayat Samiti for having more than two children ?'
'(5) Whether the O.P. No. 3 has adopted a daughter namely Baijayanti Mangaraj, the daughter of his elder brother prior to his marriage which took place in the year 1995
4. Both the parties led evidence in support of their respective contentions. The Opp. Party No. 1. besides examining himself as P.W. No. 2 also examined three more witnesses and relied on four documents marked as Exhibits 1 to 4. Out of the other witnesses. P.W. No. 1 was the Headmaster of the School where both the girls undertake their study. For the circumstances noted in the impugned judgment and stated at a later part of this judgment, P.W. No. 1 was treated as a hostile witness to the Opp. Party No. 1 and the Court below permitted to put leading questions to him. P.W. No. 3 was the Sarpanch of Haripur Grama Panchayat and P.W. No. 4 claimed to be a relative of petitioner as agnatic nephew. Amongst the exhibited documents, Ext.1 is the certificate granted by the Registrar of Birth and Death and Executive Officer, Jatni Municipality relating to birth of a male child in the family of the petitioner on 25.05.1998, Ext.2 is the order passed by the S.D.J.M., Bhubarieswar in I.C.C. Case No. 322 of 2003 relating to the complaint that petitioner committed theft of the Admission Register from the School of P.W. No. 1, Ext.3, an affidavit dated 26.03.2002 filed by P.W. No. 3 regarding the fact that petitioner is disqualified for having three children and Ext.4, a copy of the Voter List of the year 1995 showing that Santilata is the wife of the petitioner.
5. Similarly petitioner examined 5 witnesses including himself as O.P.W. No. 4 and relied on three documents marked Exhibits A, B & C. Amongst the witnesses, O.P.W. No. 1 is his uncle Gadmdhar Mangaraj claiming to be the natural father of Baijayantimala, O.P.W. No. 3 Santilata is the wife of the petitioner and O.P.W. Nos. 2 and 4 are two co-villagers who stated that Baijayantimala is the natural born daughter of O.P.W. No. 1 and taken on adoption by the petitioner. Ext.A is the Voters Identity Card of O.P.W. No. 3 describing her as daughter of one Santha Das, Ext.B is a deed of adoption dated 04.02.1998 showing adoption of Baijayantimala by the petitioner and Ext.C, i.e., Entry No. 619 in the Birth Register, Volume-I, 1998 of N.A.C., Jatni showing birth of Biswabhusan a male issue in the family of the petitioner as the second child. His date of birth has been noted as 25.05.1998, the date of registration being on 10.06.1998.
6. On assessment of such evidence on record, learned District Judge found that the case projected by the petitioner that he was married in the year 1995 and that Baijayantimala is the daughter of his uncle (P.W. No. 1) was not proved and circumstances available from the Voter List, Ext.A suggest to the situation that Santilata was a married woman prior to 1995 and, therefore, Ext.A, the Voters Identity Card does not rebut to the presumptibn arising from Ext.A. He also recorded the finding that missing of the relevant volume, i.e., Volume No. 5 of the Admission Register out of six Registers kept under lock and key in the custody of P.W. No. 1, discovery of such fact by P.W. No. 1 in the morning but reporting the matter to the Police at a belated stage in the evening, manipulation by insertion of the name of Biswabhusan in the Register vide relevant entry Ext.C are circumstances enough for a reasonable finding of manipulation of records by the petitioner. He also found the plea of adoption by a bachelor to be improbable when the mother of Baijayantimala is still living. Besides, plenty of other agnatic relatives are available in the family. On the other hand, he found that the marriage of the petitioner with Santilata in 1991 and birth of the three children in 1994, 1996 and 1998 are cogent enough to prove the allegations against the petitioner relating to his disqualification. Accordingly, learned District Judge disqualified the petitioner to hold the post of Member of Panchayat Samiti as well as the Chairman of the Block and directed the Opp. Parties 2 and 3 (opp. party Nos. 1 & 2 in the court below) to conduct fresh election for that disqualified post of Samiti Sabhya as well as for the post of Chairman of Jatni Block.
7. Before us, the argument concentrated on the date of marriage of the petitioner and the issue as to whether Baijayantimala is the daughter of O.P.W. No. 1 or the petitioner. As noted above, the finding and the decision of the learned District Judge in that context is against the petitioner. In course of hearing, we were taken through the evidence on record, both oral and documentary. Learned Counsel for the opp. party No. 1 in furtherance of his contention in the above context also brought to our notice the ratio decided in the case of Surya Dev Rai v. Rama Chander Rai and Ors., : AIR2003SC3044 , in which Hon'ble Apex Court while making a distinction relating to the scope and applicability of Articles 226 and 227 of the Constitution in a writ of certiorari, propounded that writ Court is not a Court of appeal to re-appreciate the evidence and to impose its interpretations on evidence even if the interpretations of the evidence and the findings recorded thereon by the inferior tribunal do not suffer from illegality or perversity and even if the factual finding of the Court below is reasonable and probable. The said ratio was laid down by the apex Court in the context of amendment of Section 115 of the Code of Civil Procedure 1908 and the extent of exercise of the writ jurisdiction against interlocutory orders. In Paragraph-39 of the judgment their Lordships held that:
Though we have tried to lay down broad principles and working rules the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.
8. From the contention of the parties in the Court below as well as here we find that certain fact situations and legal provisions are not in dispute. Those are :
(1) date of birth of the three children in 1994, 1996 and 1998;
(2) the daughter Baisali and the son described as Biswabhusan born in 1996 and 1998 are the children of petitioner; and
(3) disqualification as in Section 45(1)( v) read with second Proviso to Sub-section (1) of Section 45 of the Act, 1959 is applicable against the petitioner if Baijayantimala is found to be his daughter.
9. Oral evidence from both the side is counter balanced relating to the date of marriage of the petitioner. Witnesses from the side of the opp. party No. 1 (P.Ws.) chorused that petitioner was married to O.P.W. No. 3 in the year 1991. On the other hand, witnesses from the side of the petitioner (O.P.Ws.) stated that marriage was solemnized in 1995. Both petitioner (O.P.W. No. 4) and his wife (O.P.W. No. 3) stated that the marriage was solemnized on 23.01.1995. O.P.W. No. 3 is a housewife and holder of H.S.C. (Matriculation) Certificate. Petitioner is M.A. in Oriya. Therefore, both of them are educated. Except their oral assertions relating to their marriage in the year 1995, they produced no documentary evidence in support of the fact that their marriage was performed on 23rd January 1995. Ext. 4, the Voter List of the year 1995 indicates O.P.W. No. 3 as the wife of the petitioner and Ext.A, the Voters Identity Card indicates that as on 01.01.1994 she was the daughter of Santha Das. Petitioner argued with emphasis that evidentiary value of Ext.A is not ousted by Ext. 4. Similarly, he argued that Ext.4 cannot be treated as contrary document to Ext.A. Accordingly he argued that Ext.A in showing P.W. No. 3 to be the daughter of her father and not the wife of the petitioner in December 1994 proves the circumstance sufficient to record a finding that her marriage was solemnized in January 1995 and not before that. Repelling that argument opp. party No. 1 stated that evidentiary value of Ext. 4 cannot be wiped out because of Ext.A. According to him. Ext. 4 is the Voter List of 1995, which was prepared on the basis of the enumeration made sufficiently before, therefore, if it does not relate back to any earlier period then at least the basis of preparation of that Voter List was the facts collected in the year 1994 and by then O.P.W. No. 3 had been shown as the wife of the petitioner. He further argued that Ext.A was prepared on the basis of self-declaration made by O.P.W. No. 3 and not on the basis of any inquiry conducted for preparation of Electoral Roll and, therefore, Ext.A ipso facto does not prove that O.P.W. No. 3 was a spinster by 1994. His further argument is that in any event petitioner has not come with better evidence though available to rebut the presumption arising from Ext.4 in as much as the Voter List prepared in connection with the Voter Identify Card Ext.A was not produced to indicate that O.P.W. No. 3 was not married by the year 1994, i.e., before January 1995. He further argued that on a comparative reading of Exts. 4 and A and looking to the other attending circumstances it is proved by better evidence that O.P.W. No. 3 was married to the petitioner prior to 1995 and in that connection, the evidence of P.Ws. is corroborative to the plea of the Opp. Party No. 1 that such marriage was performed in 1991.
10. Indeed, on a perusal and scrutiny of the evidence on record, this Court finds that Ext.A cannot be regarded as a document to disprove the status of the O.P.W. No. 3 as the wife of the petitioner. On the other hand, Ext.4 in clear terms proves that O.P.W. No. 3 is the wife of petitioner by the commencement of the year 1995. Judicial notice of the circumstance can be taken that Voter Lists are prepared on the basis of the survey, which is made by the enumerators much prior to final publication. Therefore, assessment and acceptance of the evidence in that respect by the trial Court cannot be faulted with. In other word, the factual findings of the learned District Judge that there was a marriage between petitioner and O.P.W. No. 3 prior to 1995 is well made out circumstantially from the said Ext.4.
11. Parties have advanced contrary pleadings and proof as to whether the marriage was performed in 1991 or on 23.01.1995. When the above-indicated Ext.A does not prove that the marriage was performed on 23.01.1995, therefore, oral evidence led in support of that plea loses its ground. On the other hand, Ext.4 supports the stand of a marriage prior to 1995, and the evidence of the P.Ws. corroborates the stand of the Opp. Party No. 1 regarding marriage in the year 1991. Petitioner criticized the evidence of P.Ws. on the ground that they do not state about actual date of marriage in 1991. For that reason alone their evidence is not to be discarded or rejected. Amongst the P.Ws., P.W. No. 4 has claimed to be a co-villager and nephew of the petitioner. In the cross-examination that status of P.W. No. 4 has not been denied. That adds credibility to his relationship and evidence regarding the marriage between the petitioner and his wife in the year 1991.
12. For the reasons stated above, this Court does not disturb the factual finding that petitioner was married to O.P.W. No. 3 in 1991.
13. Whether or not petitioner married to O.P.W. No. 3 in 1991, the crucial question, which is independent of that fact situation, is relating to number of children petitioner has and whether he begot a child in contravention of Clause (v) of Section 45(1) of the Act, 1959, which reads as hereunder:
A person shall not be eligible to stand for election {under Sub-section (1) of Section 16} if he.
XXX XXX XXXXXX XXX XXX(v) has more than two children.
In that context, the second proviso to Sub-section (1) of Section 45 reads as hereunder:
Provided further that the disqualification under Clause (v) shall not apply to a person who has more than two children on the date of commencement of the Orissa Panchayat Samiti (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year.
Sub-section (2) of Section 45 provides that:
An elected member of a Samiti including the Chairman and Vice-Chairman shall cease to be a member if he
XXX XXX XXX(i) is not ordinarily residing within the Block or ceases to so reside or is becomes subject to any of the other disqualifications specified in Sub-section (1); or XXX XXX XXXXXX XXX XXX(Underlined by us to put emphasis)
Section 45-B provides that:
45-B. District Judge to decide question of disqualification.
(1) Whenever it is alleged that any member of a Samiti is or has become disqualified, or whenever any such member is himself in doubt whether or not he is or has become disqualified such member or any other member may, and the Chairman at the request of the Samiti shall, apply to the District Judge, having jurisdiction over the place where the Office of the Samiti is situated, for a decision on the allegation or doubt.
(2) The District Judge, after holding an enquiry in the prescribed manner shall determine whether or not such member is or become disqualified and his decision shall be final.
(3) Pending such decision the member shall be entitled to act as if he has not disqualified.
14. On a conjoint reading of the above quoted provisions, which are relevant for the purpose of discussion, it is seen that a person is not eligible to stand for election if he has more than two children by the date of such election or after the cut off date. Sub-section (2) provides that an elected member of the Samiti including the Chairman and the Vice-Chairman shall cease to be a member if he suffers from any of the disqualifications specified in Sub-section (1). Whenever there is an allegation that any member of a Samiti is disqualified or has become disqualified, then the District Judge having jurisdiction over the place being approached by a proper application shall conduct an enquiry and determine the question relating to disqualification.
15. To allege disqualification against the petitioner, opp. party No. 1 stated that by the date of election, petitioner was having three children which includes Baijayantimala as the first child, the third issue being born in the year 1998. Without disputing to the date of birth of the son in the year 1998 and the previous issue, a daughter in the year 1996 so also birth of Baijayantimala in 1994, petitioner advanced the contention that Baijayantimala is not his daughter but the daughter of O.P.W. No. 1 and he only adopted her. In that context, deed of adoption, Ext. B was filed and the evidence of O.P.Ws. was led regarding the factum of adoption. When O.P.W. No. 1 states about no ritual having been performed preceding the adoption of Baijayantimala, he did not state whether that girl was taken on adoption before execution of the document or after that. He did not state whether the petitioner was a bachelor or married person when he adopted the child. On the other hand, O.P.W. No. 3 and the petitioner as O.P.W. No. 4 stated about performance of 'Data Homa' and giving and taking ceremony preceding the adoption and that, that girl was adopted by the petitioner prior to his marriage. Such contradictions in their evidence, non-registration of the deed of adoption and the evidence of O.P.W. No. 1 that the third child was born to him 24 years after his marriage and about 14 years after he suffered from leprosy were not only found by learned District Judge to be improbable but also not acceptable. This Court does not find any illegality in that method of appreciation of evidence by the trial Court, because that is supported by preponderance of probabilities. When O.P.W. No. 1 has three other brothers including the father of the petitioner who was alive by the date of birth of Baijayantimala, when wife of the O.P.W. No. 1 was alive all through and when according to the petitioner he was a bachelor till 1995, it does not stand to reason that the girl was taken on adoption by him on the request of the O.P.W. No. 1 leaving the elder members in the family. Notwithstanding that the case of the petitioner would have been considered if there would have clear evidence on record to prove that Baijayantimala is the daughter of O.P.W. No. 1 in as much as invalidity of adoption disentitles Baijayantimala as a daughter of the adoptive father and therefore, she cannot be counted as a daughter to petitioner when the deed of the adoption is invalid and inoperative in the eye of law. Therefore, if there had been evidence on record to prove that Baijayantimala is the daughter of O.P.W No. 1, then the aforesaid lacuna in the matter of proving adoption would have gone in favour of the petitioner. No evidence has come on record to prove that Baijayantimala is the daughter of O.P.W. No. 1. Petitioner wanted to prove that aspect indirectly by proving Ext. C, the Birth Register, which indicates that birth of a male child on 25.05.1998 was registered on 10.06.1998. In that entry as against Column No. 5 the name of the child as 'Biswabhusan Mangaraj' and the entry 'Police Station Jatni' under Column No. 7 were inserted by different ink and by different handwritings. Ext. 1 is a certified copy of the said entries, which was granted to the opp. party No. 1 on 16.04.2003. That is also indicated by necessary endorsement and signature under Column No. 23 of the register as against Serial No. 619 (Ext. C). In reference to Ext. 1, it transpires that name of the child was absent. Therefore, it is clear from that circumstance that insertion of the name etc., of the child in that public record vide Serial No. 619 (Ext.C) was made subsequent to granting of certified copy on 16.04.2003. The custodian of the record was not examined to explain that serious circumstance. O.P.W. No. 5 only produced the register and he also did not state anything in his evidence to reconcile that discrepancy notwithstanding the fact that such a document is admissible under Section 35 of the Evidence Act. In the case of Sushil Kumar v. Rakesh Kumar, : AIR2004SC230 , the Apex Court has held that admissibility of such document does not ipso facto make such evidence reliable. Therefore, even if Ext.C is admissible like Ext. 1, yet because of the above-indicated circumstance Ext.C does not remain reliable. Apart from that the entry as second issue mentioned in Serial No. 619 is on the basis of the information and not on the basis of any enquiry. Therefore, much credibility cannot be attached to that entry. For the reasons indicated above, the findings recorded by the trial Court on the paternity of Baijayantimala by attributing that to the petitioner is also not found to be illegal, unjust, improper or unacceptable. If petitioner begot three children - one in 1994, the second one in 1996 and the third one in 1998, then that period runs systematic to add to the preponderance of probabilities.
16. For the reasons indicated above, the findings of the Court below on disqualification of the petitioner is unassailable and accordingly the writ petition is dismissed.
17. Before parting with the case, we like to observe and hope and trust that the State Government and its concerned Officers shall attend to the situation sincerely, dutifully and diligently in respect of the following and similar matters:
(1) Theft of one out of six volumes of Admission Registers from the custody of P.W. No. 1 is not a small matter. Politics and Politicians at any level may function in their own way, but a person like a Headmaster of a School should not get the stigma of favouring the petitioner by allowing missing of that register. Custodian of the records and registers is responsible for their proper custody and safety. In this case, according to the opinion of learned District Judge, it was not so. We have neither noticed nor provided an opportunity of hearing to the P.W. No. 1 in the above context. Therefore it is not proper for us to express any opinion against him. But once such a situation comes to the notice of the authorities controlling the service of P.W. No. 1, they should take appropriate but coercive action that recurrence of such happenings are minimized, if not stopped altogether.
(2) On the fade of Ext.1, the addition of information in the Entry, Ext.C can be termed as interpolation. Such documents carry much importance to prove relationship both for the purpose of personal rights and also making one eligible to hold posts in service or public posts. It is for the Executive Officer who granted the certified copy and his superior authorities to find out as to how such manipulation was made and to take into task the erring employee.
Pradip Mohanty, J.
18. I agree.