1. In this writ petition, the petitioner challenges the judgment dated 27.3.2010 passed by learned District Judge, Dhenkanal in F.A.O.No.33 of 2007 reversing the judgment passed by learned Civil Judge (Jr.Division,) Dhenkanal, in Election Petition No.11 of 2007 and declaring the election of the petitioner to the office of Sarpanch of Badalo Grama Panchayat as null and void and further declaring that a casual vacancy has been occurred in respect of the said office of Sarpanch and directing the concerned authority to take necessary steps to fill up the vacancy as per law.
2. The petitioner and three others, namely, Alakamanjari Rout, Mamatamayee Sahu and Srimati Rout filed their respective nominations to contest for the office of Sarpanch of Badalo Gram Panchayat, which was scheduled to be held on 15.2.2007.On scrutiny of the nomination papers, all the four candidates were found suitable to contest for the election. Accordingly, they contested the election which was held on the scheduled date i.e. on 15.2.2007.The petitioner, having secured highest number of votes, was declared elected on 22.2.2007 as Sarpanch of Badalo Grama Panchayat. Alakamanjari Rout, a defeated candidate, filed Election Petition No.10 of 2007 challenging the election of the present petitioner before the Civil Judge (Jr.Division) Dhenkanal. Similarly Srimati Rout, another defeated candidate, filed Election Petition No.11 of 2007 challenging the same election before the same court. Both of them took the grounds that the petitioner (returned candidate) adopted corrupt practice in the election; votes were cast by fictitious persons in the name of absentee and dead voters; the returned candidate influenced the voters to cast their votes by arranging religious feasts in village i.e. Siridiha and Handifuta and also forced some voters to cast their votes in her favour by showing muscle power. In Election Petition No.11 of 2007, an extra ground was also taken that the returned candidate having taken birth on 5.7.1986 had not completed 21 years of age, as required under Section 11 (b) of the Orissa Grama Panchayat Act by the time of filing nomination paper.
3. The stand of the returned candidate was that the allegations made in the election petitions were false, frivolous and baseless and the election was conducted in accordance with law and there was no bogus voting or any voting in the name of dead voters. She had not adopted any unfair means nor did she try to influence any voter to cast vote in her favour by arranging religious feasts. Moreover, she did not utilize muscle power to influence the voters to cast votes in her favour. It was her further pleading in Election Petition No.11 of 2007 that her date of birth was 5.4.1985 and not 5.7.1986 and as such she had already attained the age of 21 years on the date of filing the nomination i.e. on 9.1.2007.Since the F.A.O.No.32 of 2007 arising out of Election Petition no.10 of 2007 was dismissed, the present petitioner had not challenge the same. So, it is not required to discuss about Election Petition No.10 of 2007.On the basis of the pleadings of the parties in Election Petition No.11/2007, the trial court framed four issues. In order to establish her case, in Election Petition no.11 of 2007 the election petitioner examined herself alone as P.W.1.The returned candidate examined 3 witnesses including herself as O.P.W.no.2.The Trial Court examined two witnesses as C.W.No.1 and C.W.no.2. Besides the oral evidence, election petitioner proved three documents,(Exts.1 to 3). Similarly, opp.party(returned candidate)proved six documents(Exts.A to F)and the court proved six documents. (Exts.C-1,C-II,C-III,C-IV,C- V and C-VI)on its behalf. After assessing the evidence on record the trial court dismissed the Election Petition no.11 of 2007 holding that the petitioner failed to prove that the returned candidate adopted corrupt practice that the petitioner in Election Petition No.10 of 2007 (opposite party No.2 in Election Petition No.11 of 2007) admitted that the date of birth of the returned candidate was 1.1.1984 and that Ext.-B, the voter identity card and Ext. D, the certificate issued by the Principal of Intelligent Technical Institute, Dhenkanal show that age of the returned candidate was more than 21 years on the date of filing her nomination. As stated earlier, the trial court also dismissed the Election petition no.10 of 2007. Being aggrieved with the said judgments the election petitioners preferred two separate appeals before learned District Judge, Dhenkanal. The appeal arising out of Election Petition no.11 of 2007 was registered as F.A.O.no.33 of 2007 and the other appeal as F.A.O.no.32 of 2007.
After hearing the counsel for the parties, the appellate court concurred the finding of the trial court that the election petitioner failed to prove the adoption of corrupt practice by the returned candidate and accordingly dismissed F.A.O no.32 of 2007. With regard to the allegation of underage of the returned candidate, in F.A.O no.33 of 2007, it held that in her show cause, she (returned candidate) specifically mentioned that according to her horoscope, her date of birth was 5.4.1985 and as such the learned trial court should not have allowed her to lead evidence to prove her date of birth as 1.1.1984; that the trial court ought not have relied on the evidence of Alakamanjari Rout given in Election Petition No.10 of 2007 stating that the date of birth of the election petitioner was 1.1.1984 as the same was not legally proved in Election Petition No.11 of 2007 that it should not have placed reliance on Exts A to D, particularly when the same were not proved in accordance with law; that though the returned candidate in her show cause stated that her date of birth was 1.1.1984 according to the School Admission Register of Laxmipriya High School, the said Register was not produced by her; that though she claimed her date of birth to be 5.4.1985, she did not adduce any evidence in support of the same and relying on Exts C-1 and C-II, held that the date of birth of the returned candidate was 5.7.1986 and as such she was below 21 years of age on the date of filing the nomination paper i.e. on 9.1.2007 and accordingly allowed the appeal and set aside the judgment and orders passed by the trial court in Election Petition No.11 of 2007. Being aggrieved with the said judgment the returned candidate (hereinafter referred as petitioner) has filed the present writ petition.
4. Learned counsel for the petitioner submitted that the petitioner filed a petition for amendment of her show cause before the trial court seeking correction of her date of birth from 5.4.1985 to 1.1.1984, but no order was passed thereon. When a petition is filed before a court, order in either way must be passed. The court cannot deny passing any order on a petition. So, the impugned order deserved to be quashed. In support of his submission, he relied on the decision Moti Dei vs. Cuttack Bank Ltd and others, AIR 1964 Orissa(V 51 C 72)where this court held that:
"Once a party files an application alleging therein certain matters for consideration, the Court is bound to hear the party. It is open to the Court to reject the party's contention, but it is not open to the court to say that the party is not entitled to hearing as the identical matter had been decided by a previous order."
But in the case at hand, the trial court did not refuse to hear the amendment petition. As it appears, it was not brought to its notice. The petitioner also did not bring it to the notice of the appellate court. So the decision cited above is not applicable to the present case.
5. In Election Petition no.10 of 2007, Alakamanjari Rout (the election petitioner therein) first deposed that the date of birth of the petitioner was 1.1.1984, but immediately she corrected the same and stated that her date of birth was 5.7.1986.The trial court relying upon such prevaricating statement held in Election PetitionNo.11 of 2007 that according to the evidence of that witness, the date of birth of the petitioner was 1.1.1984 which was rightly discarded by the appellate court.
6. On perusal of show cause of the petitioner filed before the trial court, it is found that she has stated therein that according to her horoscope (Jataka Patrika), her date of birth was 5.4.1985, but, in fact, the horoscope (Jataka Patrika) shows that her date of birth was 1.1.1984. An amendment petition was filed on behalf of the petitioner to correct it, but as stated above, no order was passed therein. Under such circumstances, it is held that the trial court did not commit illegality in allowing the petitioner to lead evidence to prove that her date of birth was 1.1.1984.
7. In fact the trial court has not relied on Ext.A, the Jatak Patrika and Ext.C. the Medical Certificate showing the date of birth of the petitioner as 1.1.1984, and that she appeared to be aged 23 years as on 11.6.2007 respectively, since the maker of the Jatak Patrika and the doctor granting the Medical Certificate were not examined. So, the finding of the appellate court, that the trial court relied on Ext.A and Ext.C, was not correct. It relied on Ext.B, the voter's identity card and Ext D, the certificate issued by the Principal, Intelligent Technical Institute, Dhenkanal showing that the petitioner was 18 years old on 1.1.2002 and that her date of birth was 1.1.1984 respectively.
8. In an election petition challenging the election of the returned candidate on the ground of underage, the initial burden lies with the petitioner to prove the same, as held in the case of Ravinder Singh Gorkhi v. State of U.P., AIR 2006 Supreme Court, 2157. In the present case, opp.party no.1 (election petitioner) has not proved a single document showing that the present petitioner was underage at the time of filing her nomination. As appears from record,opp.party no.1( election petitioner) called for the School Admission Registers of Badalo Primary School and Badalo Ghodadian U.P.School, where the petitioner was studying, to prove her (petitioner) date of birth as 5.7.1986. The Registers were brought, but she did not take any step to prove the same. So, the trial court summoned the Headmasters of both the Schools to prove the same. Purna Chandra Naik, (C.W.no.1) the Headmaster of Badalo Primary School proved the Admission Register of his school, which was marked as Ext C-1 and stated that the date of birth of the present petitioner as reflected therein was 5.7.1986 (C-1/1).In cross examination, he admitted that he did not enter the date of birth of the petitioner in Ext C-1 (the School Admission Register). He also failed to say as to who entered the same, much less at whose instance the same entry was made. Similarly, C.W.no.2, the Headmaster of Badalo Ghodadian U.P.School proved the Admission Register of his school marked as Ext-C-11 and deposed that the date of birth of the petitioner was 5.7.1986 (Ext C-11/1). There is no evidence to show as to who entered the said date of birth and at whose instance it was entered. In the decision Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796, the apex court held that: "To render a document admissible under Section 35 (of the Indian Evidence Act), three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry relating to the age of a person in a school register is of no much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." (Emphasis supplied)
In the present case, since there is no evidence on record to show on what material the entry of the age of the present petitioner was made, Exts.C-1/1 and C-11/1 have no much evidentiary value. Moreover, as held by the apex Court in the case of Brij Mohan Singh Vs, Priya Brat Narain Sinha and others, AIR 1965(S.C.) 282 in actual life it often happens that persons give false age of the son at the time of admission to a school, so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed.At times they reduce the age of the boy/girl also.
9. The petitioner relied Ext.B, the identity card issued by the Election Commission of India, which shows that her age was 18 years as on 1.1.2002. So, on the date of filing the nomination papers, her age was more than 21 years. This fact has not been rebutted by the opp.party in any manner. Therefore, Ext. B can be relied upon as held in the case of Chitru Devi v. Smt.Ram Dei and others, AIR 2002 Himanchal Pradesh 59. Ext.D is the certificate granted by Principal Intelligence Technical Institute, Dhenkanal on 8.8.2000 showing the date of birth of the petitioner as 1.1.1984. The appellate court did not rely on this document holding that the petitioner in her show cause did not mention about Ext.D. She did not also mention about passing of I.T.I. examination and grant of Ext.D in her affidavit filed before the election officer. Even if Ext.D is not taken into consideration, since the evidence contained under Ext.B has not been rebutted, the same can safely be relied upon.
10. As already held earlier, the initial burden lies with the opp. party No.1 (election petitioner) to prove the underage of the returned candidate but when it was not discharged, non-production of the school admission register of Laxmipriya High School by the petitioner would not have adverse effect on her case.
11. Under such circumstance, the writ petition is allowed, the judgment of the appellate court is set aside and the judgment of the trial court is hereby confirmed. No cost. Writ petition allowed.