ROKKAM RAMPRASAD Vs. STATE OF ORISSA

JUDGEMENT

(1.) The writ petition is directed against the judgment dated 25.03.2009 passed by the learned Addl. District Judge, Gajapati, Parlakhemundi in Election Appeal No. 3 of 2008, wherein he allowed the appeal filed by opp. party No. 2 challenging the judgment dated 24.09.2008 passed by the learned Civil Judge (Junior Division), Paralakhemundi in Election Petition No. 6 of 2007.

(2.) The fact necessary for disposal of the writ petition succinctly stated is that, petitioner and opp. party Nos. 2 and 3 contested for the office of Sarpanch in respect of Siali Gram Panchayat under Kasinagar Block in the District of Gajapati in the last Gram Panchayat election held on 21.02.2007. Opp. Party No. 2 having secured highest number of votes, was declared elected. The writ petitioner filed Election petition No. 6 of 2007 before the learned Civil Judge (Junior Division), Paralakhemundi with prayer to declare the election of the returned candidate as null and void and to declare him as elected Sarpanch of Siali Gram Panchayat on several grounds including the ground that the returned candidate was unable to read and write Oriya language. The learned Civil Judge (Junior Division), Paralakhemundi allowed the petition holding that the returned candidate was unable to read and write Oriya and further directed the Election officer-cum-B.D.O., Kasinagar (opp. party No. 4) to declare the petitioner, Rokkam Ram Prasad as elected candidate for the office of Sarpanch, if he had secured second position in the election fray. Being aggrieved with the said Judgment, the returned candidate preferred Election Appeal No. 3 of 2008 before the learned Addl. District Judge, Gajapati at Paralakhemundi, who allowed the appeal holding that the appellant (opp. party No. 2) was able to read and write Oriya and consequentially upheld his election as Sarpanch of Siali Gram Panchayat. The respondent-election petitioner has preferred the present writ petition challenging the appellate Court's judgment.

(3.) Learned Counsel for the petitioner submitted that as found from Ext. A, some words in Oriya language were dictated to opp. party No. 2, but he could not write a single word correctly. He was also asked to read an Oriya manuscript, but failed to read the same. So, the Civil Judge held that opp. party No. 2 was unable to read and write Oriya. The appellate Court erroneously negatived the said findings observing that, Ext-1 was not properly marked and that on perusal of the writing of opp. party No. 2 in Ext-A, it was found that he was able to write Oriya, albeit there was some grammatical mistakes. So far as reading is concerned, the appellate Court held that there was nothing on record to show as to what was given to opp. party No. 2 for reading. It held that when the opp. party No. 2 could write Oriya, he can also read Oriya. In this context, learned Counsel for the petitioner further submitted that reading and writing Oriya means one should be able to read Oriya and also be able to write Oriya. If one is able to read Oriya, it does not necessarily follow particularly, in the manner in which opp. party No. 2 has written in Ext-A that he can read Oriya. If there was no material to show as to what was given to opp. party No. 2 to read, the appellate Court ought to have taken evidence in this regard to satisfy itself, whether he was able to read Oriya or in the alternative, it ought to have remanded the case to the election tribunal to take fresh evidence in that regard, but he ought not have totally brushed aside the Judgment of the Tribunal.