CHAKAMANA NAIK Vs. COLLECTOR, KALAHANDI

JUDGEMENT

(1.) A preliminary objection has been raised by the opp.party No.3 to the writ petition on the ground that the case involves disputed question of facts and this Court in exercising power under Article 227 of the Constitution should not interfere with the impugned judgment.

(2.) THE opp.party No.3 filed Election Petition No.13 of 2007 before the Civil Judge (Junior Division), Bhawanipatna challenging the election of the writ petitioner to the office of the Sarpanch of Belkhandi Grama Panchayat in the district of Kalahandi on the ground that the 6th child of the petitioner was born on 8.6.1996 i.e. after the cutt -off date 1.10.1995 and therefore, he was disqualified to contest the election as per the provisions of Section 25(1)(b) of the ORISSA GRAM PANCHAYAT ACT, 1964 (hereinafter referred to as 'the Act). Two witnesses were examined on behalf of the election petitioner, P.W.1 being a clerk of the P.H.C., Pastikudi and the election petitioner being P.W.2. Ext.1, a birth certificate said to be issued by P.W.1 was exhibited in support of the case of the opp.party No.3 -election petitioner that the 6th child of the writ petitioner was born on 8.6.1996. On the other hand, the writ petitioner, who was the opp.party No.2 in the election petition, filed a birth certificate issued by the Medical Officer -cum -Registrar of Birth and Death of the P.H.C. prepared on the basis of an enquiry and order of the learned Magistrate. The said certificate was marked as Ext.A. The writ petitioner also examined himself and two other witnesses in support of his case that his last child was born on 8.6.1994 that was before the cutt -off date.

(3.) WITH regard to the preliminary objection raised by the opp.party No.3, it would be seen that the Supreme Court in the case of Chandrasekhar Singh and others v. Siya Ram Singh and others, AIR 1979 SC 1 held that the power of superintendence conferred under Article 227 of the Constitution of India is to be exercised sparingly and only in special circumstances in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. In Baby v. Travancore Devaswom Board, AIR 1999 SC 519, the Supreme Court considering that revisional jurisdiction being not available to the High Court to interfere in a matter, the Court can exercise its power under Article 227 of the Constitution and quash an order passed by a Court/Tribunal if there is an apparent error or the findings of fact have been arrived at by non -consideration of the relevant and material documents, the conclusion of which would have led to an opposite conclusion. In regard to patent error interpreting the said phrase, the Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044, laid down that a patent error is an error which is self -evident, i.e., which can be perceived or demonstrated without involving any lengthy or complicated argument or a long -drawn process of reasoning and may be corrected by the High Court exercising its power under Article 227 of the Constitution. However, such an error should be manifest and apparent on the face of the proceeding, such as when it is based on clear ignorance or utter disregard of the provisions of law, and grave injustice or gross failure of justice has been occasioned thereby. Though the Apex Court held that while doing so, the High Court may not substitute its own order rather it should provide proper guidelines and issue suitable direction to the subordinate Courts as to the manner in which it would act or proceed thereafter or afresh, but it also held that the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Courts as the Court should have done it in the facts and circumstances of the case. (emphasis supplied)