Orissa High Court

An Application Under Articles 226 ... vs The Collector & District ... on 18 April, 2023

               ORISSA HIGH COURT : C U T T A C K
                              W.P.(C) NO.8534 OF 2023
                         An application under Articles 226 & 227 of
                              the Constitution of India.
AFR
      Bholeswari Das                                     : Petitioner

                                       -Versus-

      The Collector & District Magistrate,
      Nuapada & anr.                                     : Opposite Parties



             For Petitioner                  : M/s.P.Acharya, Sr.Adv.,
                                               S.S.Tripathy & A.B.Pattanaik,
                                               Advs.

             For O.P.1                       : Mr.U.K.Sahoo, ASC

             For O.P.2                       : M/s.G.B.Singh & A.P.Bose,
                                               Advs.

                                       JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing : 06.04.2023 & Date of Judgment : 18.04.2023

1. This is a Writ Petition at the instance of the returned

candidate, Petitioner herein, for the post of Sarapanch of Sunari Sikuan

Gram Panchayat in challenge to the impugned order at Annexure-12

passed by the Collector & District Magistrate, Nuapada in exercise of

power under Section 26 of the Orissa Gram Panchayat Act, 1964

// 2 //

(herein after called, <O.G.P.Act) in allowing the Section 26

Application at the instance of the unsuccessful candidate, O.P.2 herein

seeking declaring the returned candidate to be disqualified to hold the

post of Sarapanch.

2. Factual background as revealed, the Petitioner along with

O.P.2 and two others contested for the post of Sarapanch of Sunari

Sikuan Gram Panchayat of Khariar Panchayat Samiti of Nuapada

District in the General Elections to Panchayati Raj Institutions, 2022.

Nomination papers of all these persons were duly accepted by the

Election Officer after proper scrutiny, vide the Election Notification at

Annexure-1. Annexure-2 is a disclosure of candidates to the post of

Sarapanch of different Gram Panchayats in Khariar Panchayat Samiti.

In the election the Petitioner having secured highest number of votes

was elected as the Sarapanch of Sunari Sikuan Gram Panchayat. On

2.3.2022 the Election Officer notified the name of the Petitioner being

duly elected as Sarapanch, vide Annexure-3.It is while the Petitioner

was in charge of Sarapanch of Sunari Sikuan Gram Panchayat, she

received notice dated 28.3.2022 appearing to be in connection with the

proceeding under Section 26 of the O.G.P.Act on the File of the

Collector & District Magistrate, Nuapada, as Application being moved

by O.P.2 to remove the Petitioner from the post of Sarapanch on the

// 3 //

footing that she had not attended 21 years of age as on date of filing of

nomination. It appears, the complain before the Collector & District

Magistrate was based on the Student Admission Register of the

Petitioner while she was a student of Odisha Adarsha Vidyalaya, Badi

and High School Certificate. This case was registered as Misc. Case

No.4/2022 on the File of O.P.1. Notice is appended as Annexure-4.

The Petitioner on her appearance filed a detailed show cause along

with supporting documents, such as Voter Identity Card, Voter List,

Aadhar Card, Pan Card, Medical Certificate issued by the Medical

Officer in-charge of Khariar C.H.C., Birth Register of the Anganwadi

Worker of Sunari Sikuan A.W.C. 4. The Petitioner in the show cause

attempted to support all the above documents in order to establish that

she had already attended 21 years of age at the time of filing of

nomination paper for the post of Sarapanch. Copy of the show cause

reply is appended here as Annexure-5 and copies of the documents

indicated herein above introduced by the Petitioner herein are all

appended as Annexure-6 to 11. There has been involvement of an

enquiry in the Section 26 proceeding. On completion of argument,

O.P.1 passed order dated 15.3.2023 in Misc. Case No.4/2022 at

Annexure-12 declaring the Petitioner disqualified to contest the post of

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Sarapanch and as a consequence, there was also direction for removal

of her from the post of Sarapanch.

3. The Petitioner assailed the impugned order on the following

grounds :-

<9.A. Though the Petitioner adduced sufficient material evidences such as voter id card, voter list, Aadhar card, Pan card, medical certificate issued by the medical officer in charge of Khariar CHC, birth register of the Anganwadi worker of Sunariskuan AWC 4 to prove her age, the same was conveniently ignored by the Opp.Party no.1, without assigning any reason thereto. The Petitioner fails to comprehend the fact that when the Opp. Party No.1 himself is the District election officer and responsible for the preparation of voter list, how can he give more importance to the details as mentioned in the student admission record over the details as mention in the voter identity card or voter list.

9.B. It is settled position of law that while deciding the age of person to contest a particular election in an election dispute the details as mentioned in the voter identity card holds more evidentiary value than the details as mentioned in the High School certificate or student admission record. In the case of Tipnnakesab Reddy v. State of Orissa, (2011 (Suppl 1) OLR

122) the Hon'ble Orissa High Court held as follows :-

<10. However, even accepting all the materials, it is found that the date of birth mentioned in the Voter Identity Card Ext-B as on 01.01.2002 shows to be 18 years. It can, therefore, safely be concluded that the Petitioner had a right to exercise his franchise as on 01.02.2002 having been considered to be eligible to be registered in the electoral roll being not less than eighteen years of age u/s 19(a) of the Representation of the People Act, 1950. It is a common knowledge and judicial notice can also be taken of the fact that parents have a tendency to reduce the age of the child by mentioning a subsequent date of birth in the school register, which would ultimately culminate in the

// 5 //

certificate granted to the children in the High School Certificate Examination. No doubt, the date of birth as reflected in the Matriculation Certificate relates to the date of birth mentioned in the application form filled up by the candidate, which is required to be submitted before the Examining Authority for appearing in the said examination. But, while considering as to whether a person has attained the age of 21 years on the date of filing of the nomination paper as contemplated u/s 11 of the Act, the age mentioned in the Voter Identity Card assumes relevancy more so because such person is allowed to cast his vote in the General Election having attained the age of majority and registered in the electoral roll.=

9.C. Further it's a common practice normally adopted by the parents making a false statement of age in student admission register with a view to secure an advantage in getting public service. Therefore, when it comes to decide the age of a person the details as mentioned in the voter identity card carries more evidentiary value than the details as mentioned in the High School Certificate. In the case of Brij Mohan Singh v. Priya Brat Nareain Sinha,AIR 1965 SC 282 the Hon'ble apex Court made the following observation with respect to the above mentioned issue;

20. An objection was faintly raised by Mr.Agarwal as regards the admissibility of Ex.2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant's case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation

// 6 //

Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However, much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant's age on the entries in these three documents viz. Ex.2, Ex.8 and Ex.18.

During the course of hearing though the Petitioner vehemently submitted before the Opp.Party no.1 that the details pertaining to the date of birth of the Petitioner has been wrongly entered by the School authority during admission, the same was never taken into account, in spite of the fact that there were material evidences placed on record to prove the actual date of birth of the Petitioner. The father of the Petitioner while she was a student of Saraswati Sisu Mandir, Gandabehali, Nuapada, vide application dated 07.04.2007 brought it to the knowledge of the Headmaster that there is discrepancy in the date of birth of the Petitioner in the school record and requested to correct it as 09.01.1999. However, the school authority never bothered to correct the same.

Copy of the letter dated 07.04.2007 addressed to the Headmaster is annexed hereto and marked as Annexure-

13.

9.D. It is significant to note here that the voter list on the basis of which the Election officer held the Petitioner to be eligible to contest the election was stated to have been prepared in accordance with law and no objection, whatsoever was raised by anybody during the preparation or after publication of the same. Therefore, the attempt of the Opp.Parties to declare an elected representative of the people

// 7 //

to be disqualified to hold the post of Sarpanch is an attempt to frustrate the sanctity of the election process.

9.E. The enquiry to be conducted under Section 26 by the Collector is a quasi-judicial enquiry and of summary in nature, in contrary an election dispute raised under Section 30 of the Act is in the nature of a suit, inasmuch as the provisions of the Code of Civil Procedure and the Evidence Act are applicable to the said dispute. The Power of an election tribunal under section 30 of the Act is wide enough to adjudicate a dispute for violation of any of the provisions of the Act, whereas in the section 26 the Collector can only adjudicate the dispute pertaining to grounds of disqualification as mentioned in the section 25(2) of the Act. In the case of Raghunath Sahoo v. Collector & District Magistrate, Keonjhar, 2008 (I) OLR-230, the Hon'ble Orissa High Court discussed the scope of proceeding under section 26 and section 30 as follows :

<6. The grounds for declaring a candidate disqualified in election under Section 30 are confined to the grounds specified under Section 39; whereas in a proceeding initiated under Section 26, the Collector has to only consider the disqualification as stipulated under Section 25(2)...........

From a bare perusal of the impugned order it can be observed that the Opp.Party No.1 has exceeded his jurisdiction while deciding the dispute as referred by the Opp.Party No.2. Though the proceeding under section 26 is of summary nature in contrary to the proceeding under section 30, the Opp.Party no.1 solely relying upon the student admission register and HSC certificate went on to conclude that the Petitioner was ineligible for the post of Sarpanch as per section 11(b) of the Act, for not attaining the age of 21, While adjudicating a proceeding under section 26 the Opp.Party no.1 was supposed to limit his jurisdiction with respect to the grounds of disqualification as mentioned in the section 25(2) of the Act.

9.F. Further it will be pertinent to state here that ignoring all the material evidence on record without assigning any reason thereto, though the Opp.Party No.1 has solely relied upon the HSC certificate and Student admission record as produced by the Principal, Odisha Adarsha Vidyalaya, Badi,

// 8 //

he never though it necessary to record the statement of the Principal with respect to the veracity of the record produced. Moreover the Petitioner was never given an opportunity to cross-examine the Principal in order to ascertain the true facts. Therefore, the whole proceeding before the Opp.Party No.1 is vitiated for being partial, illegal and arbitrary.

9.G. In catena of decision the Hon'ble apex Court has held that correctness of entry of date of birth in the matriculation certificate or school admission record has lesser evidentiary value than the details as mentioned in the voter identity card, while deciding the age of a candidate in an election dispute.=

4. Mr.P.Acharya, learned senior counsel for the Petitioner

apart from the above grounds on the returned candidate declared to be

disqualified attempting through the documents appended herein to

establish the above grounds took this Court to the provision at Section

4(1), 11, 25 & 26 of the O.G.P. Act and submitted that there has been

exercise of power by the Collector beyond the jurisdiction of the

Collector provided to him, vide Section 26 of the O.G.P. Act.

Mr.Acharya, learned senior counsel reading through the provisions at

Section 4(1) of the O.G.P. Act contended, this is a provision dealing

Voter List meant for Assembly Constituency shall be deemed to be a

Voter List of Grama. Through Sections 11 & 25 of the O.G.P. Act,

Mr.Acharya further contended, so far as the provision at Section 11 of

the O.G.P. Act is concerned, this is a chapter dealing with qualification

for membership in the Gram Panchayat. Reading through the provision

at Section 25 of the O.G.P. Act, Mr.Acharya, learned senior counsel

// 9 //

for the Petitioner contended, this provision contains two parts;

Paragraph-1 of Section 25 of the O.G.P. Act when prescribes that a

person shall be disqualified for being elected or nominated as a

Sarapanch or any other member of the Gram Panchayat constituted

under this Act, whereas Paragraph-2 of Section 25 of the O.G.P. Act

prescribes that a Sarapanch or any other member of a Grama Panchayat

shall be disqualified to continue and shall cease to be a member if he

incurs any of the disqualifications provided therein. Mr.Acharya,

learned senior counsel for the Petitioner in the above legal scenario

contended, the provision at Sections 11 and Section 25(1) of the O.G.P.

Act are all pre-election stage, whereas Section 25(2) of the O.G.P. Act

is an attachment post-election. Taking this Court to the provisions as

well as power of the Collector, vide Section 26 of the Act, Mr.Acharya

submitted, the proceeding herein is to giving effect to disqualification.

It is again reading the provision at Section 26 of the O.G.P. Act,

Mr.Acharya, learned senior counsel attempted to contend that the

Collector's power herein is confined to post-election disqualification. It

is here, reading through the provision at Sections 35 & 37 of the

O.G.P. Act, Mr.Acharya attempted to make a distinction in between

the powers of the Collector and the Civil Judge (Jr.Divn.) exercising

their power under Sections 26 & 30 of the O.G.P. Act respectively and

// 10 //

thus contended, the Collector taking up the proceeding here under

Section 26 of the O.G.P. Act taking aid of the provisions at Sections 35

& 37 has exceeded its jurisdiction. Reading through the provision at

Section 26(2) of the O.G.P. Act, Mr.Acharya, learned senior counsel

for the Petitioner, contended, once there is an allegation of a member

being disqualified or is in doubt whether or not such person has

become disqualified or any other member may, the Collector though

takes up such issue under the provision of Sub-Section (2) of Section

26 of the O.G.P. Act, he is to simply make such enquiry as he

considers necessary and after giving the person whose disqualification

is in question an opportunity of being heard, determine whether or not

such person is or has become disqualified and make an order in that

behalf which shall be final and conclusive. It is in this view of the

matter, Mr.Acharya, learned senior counsel for the Petitioner, the

returned candidate, keeping in view the background involving the

complain before the Collector contended, the Petition under Section 26

of the O.G.P. Act does not exist unless an elected Sarapanch earns

disqualification after being elected as Sarapanch under the provision of

Section 25 of the O.G.P. Act. Mr.Acharya, learned senior counsel here

reading through the provision at Section 25 of the O.G.P. Act and the

complain of the private O.P.2, the defeated candidate, advanced his

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submission on the pretext that there is no attraction of disqualification

under Section 25(2) of the O.G.P. Act, and therefore, the complain

submitted under Section 26 of the Act per se was not maintainable and

the Collector has miserably failed on this aspect and has entered into a

unwarranted controversy and decided such Petition taking aid of the

provision at Sections 35 to 37 of the O.G.P. Act and such order

becomes thoroughly improper. Taking to the nature of complain and

reading here the provision at Section 11 of the O.G.P. Act,

Mr.Acharya, learned senior counsel contended, the Collector & District

Magistrate, Nuapada has failed in providing its exercise being limited

only to attachment of disqualification in post-election and the complain

presumes involved the allegation on the qualification for the

membership in the Gram Panchayat, which is ultimately not within the

domain of the Collector.

5. Mr.P.Acharya, learned senior counsel for the Petitioner also

contended, Section 26 of the O.G.P. Act is a draconian provision,

which confers unbridled and uncontrolled power upon executive to

deal with the disqualification having been incurred during the tenure of

an elected representative. Mr.Acharya claimed, unless the Collector's

satisfaction is based on cogent and convincing reasons with reference

to the germane material available on record, the Collector cannot

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cursorily exercise the said power to bring an immature end to the

tenure of popularly elected Sarapanch. Mr.Acharya also alleged, the

test applied by the Collector in the instant case is not only evasive but

also does not stand to reason and also runs contrary to the settled

position of law and an illegal infringement in the people's mandate for

obvious reason. Finally taking to the conclusion arrived at by the

Collector, Mr.Acharya, learned senior counsel alleged, the Collector

has heavily relied upon the submission of School Authority without

applying procedure for proving the same in conformity with Section 35

of the Indian Evidence Act. Mr.Acharya also contended, looking to the

limited role of the Collector in his exercise under Section 26 of the

O.G.P. Act should be a summary proceeding and is in the nature of a

sui generis quasi-judicial function.

6. Mr.P.Acharya, learned senior counsel for the Petitioner to

strengthen his submission took support of the following decision :-

I. Brij Mohan Singh vrs. Priya Brat Narain Sinha & ors :

AIR 1965 SC 282 II. Mayadhar Nayak vrs. Sub-Divisional Officer, Jajpur & ors. : AIR 1982 Ori. 221 III. Sushil Kumar vrs. Rakesh Kumar : (2003) 8 SCC 673 IV. Madan Mohan Singh & ors. Vrs. Rajni Kant & anr. :

(2010) 9 SCC 209

// 13 //

V. Tipnna Kesab Reddy vrs. State Of Orissa & Others :

(2011) 111 CLT 885 (para-9 to 13) VI. Bilash Majhi vrs. Collector & District Magistrate, Kalahandi & anr. : (W.P.(C) No.11412 of 2013 disposed of on 23.09.2015) VII. Saraswati Nayak vrs. State of Odisha & ors. : AIR 2019 Ori. 134 VIII. Manita Sahu Vs State Of Orissa & Others : W.P.(C) No.2924/2019 disposed of on 9.4.2019 IX. Jagdev Majhi vrs. State of Odisha & ors. : (Writ Appeal No.172 of 2019 disposed of on 3.9.2021) X. Tikayat Naik vrs. State of Odisha & ors. : (W.P.(C) No.3321/2018 disposed of on 26.2.2019)

7. Mr.P.Acharya, learned senior counsel for the Petitioner even

though attempted to take this Court to several decisions taken note

herein above, however confined his submission through the decisions

in Mohd. Ikram Hussain vrs. The State of U.P. & ors. : AIR 1964 SC

1625, Brij Mohan Singh vrs. Priya Brat Narain Sinha & ors : AIR

1965 SC 282, Mayadhar Nayak vrs. Sub-Divisional Officer, Jajpur &

ors. : AIR 1982 Ori. 221, Santenu Mitra vrs. State of West Bengal :

AIR 1999 SC 1587, Birad Mal Singhvi vrs. Anand Purohit : 1988

Supp. SCC 604, Sushil Kumar vrs. Rakesh Kumar : (2003) 8 SCC

673, Vishnu alias Undrya vrs. State of Maharastra : (2006) 1 SCC

283, Madan Mohan Singh vrs. Rajni Kant : 2010(II) CLR

// 14 //

(SC)660/AIR 2010 SC 2933, Saraswati Nayak vrs. State of Odisha &

ors. : AIR 2019 Ori. 134 (2019 SCC Online Ori 361).

8. In his opposition, Mr.A.P.Bose, learned counsel for the

contesting O.P.2 in his attempt to support the impugned order passed

by the Collector contended, O.P.2 filed a Petition before the D.P.O.,

Nuapada complaining the disqualification attended by the returned

candidate, the Petitioner herein under the provision of Sections-11, 25

& 26 of the O.G.P. Act involving a request to the Collector for his

decision on the allegation in exercise of his power under Section 26 of

the O.G.P. Act. This proceeding is registered as Misc. Case No.4 of

2022. Mr.Bose further contended, the case of O.P.2, particularly, on

the disqualification of the returned candidate on account of age of the

Petitioner herein at the time of nomination specifically pleaded that the

age of the Petitioner in fact at the time of nomination was 17 years 8

months 2 days as per the School Admission Register in Odisha

Adarsha Vidyalaya, Badi in the district of Nuapada, which has a clear

disclosure on the date of birth of the returned candidate showing it to

be 9.5.2004. Mr.Bose, learned counsel contended, it is based on the

allegation and material support by his Client, the Collector and the

District Magistrate, Nuapada ascertained the date of birth of O.P.2 and

the Principal of Odisha Adarsha Vidyalaya, Badi was asked to produce

// 15 //

the student Admission Register of the School. In response to which the

Principal of the School appeared before the Authority and produced the

students Admission Register. The Collector on verification of the

Admission Register has come to find that the date of birth of the

returned candidate appearing to be 9.5.2004. As a consequence, the

Collector being the Competent Authority declared the Petitioner herein

disqualified to hold the post of Sarapanch of Sunari Sikuan Gram

Panchayat under Khariar Panchayat Samiti, vide the impugned order.

Mr.Bose, learned counsel for O.P.2 also brought to the notice of this

Court that during pendency of the proceeding, the District

Administration of Nuapada has already handed over the charge to the

Naib Sarapanch of the concerned Gram Panchayat and the Naib

Sarapanch in the meantime functioning as Sarapanch has already

commenced to perform as whole time Sarapanch. Mr.Bose, however,

fairly submitted, the Naib Sarapanch is continuing as in-charge

Sarapanch. Mr.Bose also fairly submitted that there was no asking by

his Party, the Complainant to either declare the Voter List and/or entry,

it becomes bad nor there has been any endeavor by his Client even to

involve any such document and the case was fought simply on basis of

entry in the Admission Register and the School Certificate prepared on

such foundation. To satisfy his submission, Mr.Bose learned counsel

// 16 //

for O.P.2 attempted to support the following decisions along with

supply of copy of each such decisions apart from filing a written note

of submission to supplement his above contentions.

i) Raghunath Sahoo vrs. Collector & District Magistrate & ors. : Manu/OR/0425/2007

ii) Jagdev Majhi vrs. State of Odisha & ors. (Writ Appeal No.172 of 2019 decided on 3.9.2021)

iii) Ch. Sudhakar Reddy vrs. Tipnna Kesab Reddy (W.A. No.381 of 2010 decided on 2.2.2011)

iv) Sushil Kumar vrs. Rakesh Kumar : AIR 2004 SC 230

v) Debaki Jani vrs. The Collector : AIR 2014 Orissa 138.

9. For the factual scenario and the nature of contest between the

Parties, this Court here finds, the case needs decision on the following

questions :-

A. For the settled position of law giving weightage to Voter Identity Card vis-à-vis School Admission Register or the Matriculation Certificate, if the Collector is justified in prioritising the School Admission Register and the Matriculation Certificate prepared on such foundation over Voter Identity Card vis-à-vis enrolment in the Electoral Roll ?

B. For the provision at Section 4(1) of the O.G.P. Act makes it clear that a Grama Sasan shall be composed of all persons already entered in the Voter List under the Representation of the People Act, 1950 in so much of the electoral roll for any Assembly Constituency for the time being in force as relates Grama of the roll shall be deemed to be the electoral roll in

// 17 //

respect of the Grama and the Petitioner herein being already registered in the electoral roll failing satisfied through appropriate proceeding that such entry in the electoral roll is wrong and illegal, if the Collector in exercise of power under Section 26 of the O.G.P. Act is competent to discard such role and interfere on one's eligibility to file nomination on the basis of such entry ?

C. Looking to the power conferred on the Collector under Section 26 of the O.G.P. Act and the power conferred on the Election Tribunal under Sections 30 as well as 31 read together with Sections 35 and 37 of the O.G.P. Act, if the power of the Collector is as good as that of the Election Tribunal ?

10. Considering the rival contentions of the Parties and the

undisputed fact remains herein to be the Petitioner and O.P.2 herein

were all candidates for the post of Sarapanch of Sunari Sikuan Gram

Panchayat under Khariar Panchayat Samiti in the district of Nuapada.

The Petitioner appears to have filed her nomination on the basis of

Voter Identity Card on the registration of the Petitioner in the electoral

roll of the Assembly Constituency and further on such basis being a

Member of the Grama involved herein. The dispute here involved

being raised at the instance of O.P.2 raising a question on

disqualification of the Petitioner in even filing the nomination for the

post of Sarapanch being under aged at the time of filing of nomination

being disqualified under the provision of Sections 11 & 25 of the

// 18 //

O.G.P. Act. The Collector in exercise of power under Section 26 of

the O.G.P. Act, for the limited power with him entered into enquiry to

find the foundation in the allegation on disqualification to find as to

whether or not such person is or has become disqualified ? It is in this

connection, both the Parties were noticed to appear before the

Collector with relevant Records for enquiry even asking the Petitioner

herein being the O.P. therein to file show cause as to why her

candidature will not be disqualified ?

11. Attending to the allegation the Petitioner, i.e., O.P. filed

response, inter alia, contending that she filed nomination before the

Election Officer with all relevant documents required for qualifying to

the nomination, which ought to have been duly scrutinized and it was

only after verifying and finding all the documents found to be true and

genuine, the nomination of the Petitioner was passed through. It was

specifically contended by the Petitioner that she had already completed

21 years of age as on the date of declaration of result. She along with

her nomination filed public documents, such as Voter Identity Card,

Voter List, PAN Card, Medical Certificate issued by the Medical

Officer in-charge of Khariar CHC all indicating her age to be more

than 21 years. Entries of birth and death in the Register of Anganwadi

// 19 //

Worker of Sunari Sikuan AWC-4 categorically indicated the date of

birth of the Petitioner mentioned as 9.1.1999.

12. It is for raising an issue through the Admission Register and the

HSC Certificate to ascertain the date of birth of the O.P., the Principal

of Odisha Adarsa Vidyalaya was asked to produce the students

Admission Register of the School. It is only on the basis of material

disclosure through the students Admission Register before the

Collector, the Collector came to observe that the date of birth of the

O.P. as per such Register appears to be 9.5.2004 and accordingly, held

the Petitioner disqualified as per Section 26 of the O.G.P. Act.

13. Now attending to Question No.A, this question is taken up again

herein as follows :-

<A. For the settled position of law giving weightage to Voter Identity Card vis-à-vis School Admission Register or the Matriculation Certificate, if the Collector is justified in valuing the School Admission Register over Voter Identity Card vis-à-vis enrolment in the Electoral Roll ?

This Court here keeping in view the rival contentions of the

Parties, one Party relies on Voter Identity Card along with several other

documents as taken note in Paragraph-11 and O.P.2 taking help of the

Admission Register and the School Certificate prepared on such

foundation, finds, this issue has been considered time and again and

Voter List entry in Voter Identity Card will edge over entry in

// 20 //

Admission Register has been settled long since. This Court here takes

down the law laid down by different Courts including the apex Court

as hereunder :-

In the decision reported in Durga Shankar Mehta v. Thakur Raghuraj Singh and Others, AIR 1954 SC 520 it has been held (para

8):

<... ... ... the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved ... ... ...=

In the decision reported in (1958) 14 Ele LR 386 (Bom) it has been held:

<Much reliance cannot be placed on entries in school admission registers which are not proved to have been made on the basis of statements made by a person, e.g., the father of the boy, who knew the true date of his birth.=

As held in (1958) 14 Ele LR 386 (Bom), much reliance cannot be placed on entries in the school admission registers which are not proved to have been made on the basis of the statement made by a person, e.g. the father of the boy, who knew the true date of his birth.

It is well settled that it would depend entirely on the totality of evidence offered by the rival parties as to what value can be properly attached to them and no hard and fast rule can be laid down as to whether the one kind of evidence should prevail or the other. This must depend on the facts and circumstances of each case. Each case must depend upon its own facts and circumstances and must be decided on the net balance of the various counts of proof offered therein. In this case the petitioner depends solely on the entries in the school and college records (even assuming that the documents marked Z/8, Z/9 and Z/10 are to be taken into consideration) to prove the date of birth of respondent No. 3 to be 25-4-1957. However, there is no oral evidence to support his case. On the other hand there

// 21 //

is overwhelming evidence - both oral and documentary - on behalf of respondent No. 3 to prove his date of birth to be 30-1-1951.

In the decision in Brijendralal Gupta and Another v. Jwalaprasad and Others, AIR 1960 SC 1049 it has been held (at pp. 12 and 15):

<Under S. 36(7) a certified copy of the entry in the electoral roll shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency. ... ..

... ... Section 19 read with S. 36(7) shows that when a presumption is raised under Section 36(7) it may mean prima facie that the person concerned is not less than twenty-one years of age. .. ... ...=

In the decision in Brij Mohan Singh v. Priya Brat Narain Sinha and

Others, AIR 1965 SC 282 it has been held:

<In actual life it often happens that persons give false age of the boy at the time of his 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. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the Court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive.=

<.. .. ... once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub- Inspector of Police.

xxxxxx However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very

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well be true and so it will not be proper for the Court to base any conclusion about the appellant's age on the entries in these three documents, viz., Ex. 2, Ex. 8 and Ex. 18.=

In the decision reported in (1967) 31 Ele LR 401 (Mad), it has been

held as follows :

<The date of birth as given in the School Certificate is not conclusive as proving the age of a person. When there is conflict between the age as given in the School registers and the birth extract, if the birth extract is proved to relate to the person concerned, it is safe to rely on the age as given in the birth extract.= In the decision reported in Bhagwan Das Singla v. Harchand Singh

and Another, AIR 1971 Punj and Har 65 : 42 Ele LR 439 it has been

held :

<The entry in electoral roll is conclusive to prove that age of a person whose name is entered is 21 years at least and where nomination paper was rejected ignoring S. 36(7) of the Representation of the People Act, 1951, such rejection was held improper.= It has been further held in Para 18 as follows:

<It would thus appear that the true legal position is that the entry of a person in the electoral roll on the qualifying date is a conclusive proof of the fact that he is more than 21 years of age. But a candidate has to possess the constitutional qualification that he is 25 years of age. In order that the nomination paper of such a candidate is rejected for want of the constitutional qualification, there must be prima facie evidence that he does not possess the qualification as to age;

and even if a decision is rendered on this matter by the Returning Officer, that decision is not final and it is open to examination by the Election Tribunal when an election petition is filed.=

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Madan Mohan Singh and Others v. Rajni Kant and Another, (2010) 9 SCC 209 :

19. Such entries may be in any public document i.e. school register, voters' list or family register prepared under the Rules and Regulations, etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC 1625 : (1964) 2 Cri LJ 590] and Santenu Mitra v. State of W.B. [(1998) 5 SCC 697 : 1998 SCC (Cri) 1381 : AIR 1999 SC 1587]

20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

Tipnna Kesab Reddy Vs State Of Orissa And Others : (2011) 111

CLT 885 (Para-9 & 13)

9. However, even accepting all the materials, it is found that the date of birth mentioned in the Voter Identity Card Ext-B as on 01.01.2002 shows to be 18 years. It can, therefore, safely be concluded that the petitioner had a right to exercise his franchise as on 01.01.2002 having been considered to be eligible to be registered in the electoral roll being not less than eighteen years of age under section 19 (a) of the Representation of the People Act, 1950. It is a common knowledge and judicial notice can also be taken of the fact that parents have a tendency to reduce the age of the child by mentioning a subsequent date of birth in the school register, which would ultimately culminate in the certificate granted to the children in the High School Certificate Examination. No doubt, the date of birth as reflected in the Matriculation

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Certificate relates to the date of birth mentioned in the application form filled up by the candidate, which is required to be submitted before the Examining Authority for appearing in the said examination. But, while considering as to whether a person has attained the age of 21 years on the date of filing of the nomination paper as contemplated under section 11 of the Act, the age mentioned in the Voter Identity Card assumes relevancy more so because such person is allowed to cast his vote in the General Election having attained the age of majority and registered in the electoral roll.

13. This Court is, therefore, of the view that the learned courts below could not have ignored Ext-B, the Voter Identity Card produced by the petitioner while considering the question as to whether the petitioner was entitled to contest the election to the office of Sarpanch or not in view of mandate of Section 11 of the Act and should have held that his nomination paper was rightly accepted as he already attained 21 years of age on the date of filing his nomination paper.

14. Taking into account many of these decisions referred to herein

above, this Court in the decision in Mayadhar Nayak vr. Sub-

Divisional Officer, Jajpur & ors. : 1982 SCC OnLine Ori 1 (AIR 1982

Ori 221) has come to observe, the entry in the electoral roll can have a

better value than the entries in the Admission Register or the

Matriculate Certificate, as the case may be and this decision declared

the election of the returned candidate as valid.

15. In the above concrete legal scenario, this Court finds, Issue No.1

has to be answered in favour of the Petitioner herein thereby holding

the Collector in exercise of power under Section 26 of the O.G.P. Act

has failed in appreciating the settled position of law on this aspect and

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thus arrived at wrong and illegal order, which ought to be interfered

with and set aside.

16. Now coming to answer Question No.B, this Court here finds, the

provision at Section 4(1) of the O.G.P. Act, reads as follows :-

<4. Constitution and incorporation of Grama Sasan :- (1) For every Grama there shall be a Grama Sasan which shall be composed of all persons registered by virtue of the Representation of the People Act, 1950 (43 of 1950) in so much of the Electoral Roll for any Assembly Constituency for the time being in force as relates to the Grama 1 [and unless the Election Commission directs otherwise] of the roll shall be deemed to be the Electoral Roll in respect of the Grama.=

Reading the aforesaid provision, it becomes clear that the Grama

Sasan, which shall be composed of all persons registered by virtue of

Representation of People Act in so much of electoral roll for any

Assembly Constituency for the time being in force, this roll shall be

deemed to be the electoral roll in respect of Grama. Looking to the

factual scenario involved herein, this Court finds, once the electoral

roll of the Assembly Constituency is deemed to be electoral roll in

respect of a Grama unless somebody raises a question on the entry in

the electoral roll of the Assembly Constituency in appropriate forum

and get it nullified or rectified, there should not be entertaining of any

question on the entry in the electoral roll, which is deemed to be treated

as electoral roll of a Grama and the dispute involving entry in the

electoral roll or Assembly Constituency vis-à-vis Grama again unless

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be agitated in the asking of objection to such preparation in the

concerned election Notification, such issue should not be brought

under the purview of either Election Tribunal or the dispute under

adjudication of the Collector. This Court here thus answering this issue

in favour of the Petitioner observes, the Collector exceeded its

jurisdiction in coming to the impugned conclusion.

17. Coming to decide on the Question No.C, this Court for better

appreciation takes note of Question No.C.

C. Looking to the power conferred on the Collector under Section 26 of the O.G.P. Act and the power conferred on the Election Tribunal under Sections 30 as well as 31 read together with Sections 35 and 37 of the O.G.P. Act, if the power of the Collector is as good as the Election Tribunal ?

Attending to the controversy related to Question No.C, this

Court keeping in view the rival contentions taken note herein above

and reading of the impugned order finds, the Collector since exercised

its power by only entering into an enquiry and deciding the matter only

by providing natural justice to the Petitioner herein, there is strict

compliance of the provision at Section 26 of the O.G.P. Act. Such

action of the Collector also gets full support of a judgment in Full

Court of this Court, vide Debaki Jani vrs. The Collector & anr. : AIR

2014 Ori 138. This Court answers this question holding there is no

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exceeding jurisdiction by the Collector in its exercise of power under

Section 26 of the O.G.P. Act.