MAMI ROUT Vs. SRIMATI ROUT

JUDGEMENT

(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 challenged 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-ll, C-lll, 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.