DHANESWAR MALLICK Vs. NARAYAN BEHERA

JUDGEMENT

(1.) This writ petition has been filed againstthe judgment dated 3.3.2005 in Election Appeal No. 13 of 2003 passed by the learned District Judge, Puri confirming the order of learned Civil Judge (Jr. Division), Puri in Election Misc. Case No.19 of 2002 declaring the election of the present petitioner as Sarpanch of Badasa Grama Panchayat as invalid

(2.) PETITIONER , opp. party No.1 and three other candidates contested the election for the post of Sarpanch of Badasa Grama Panchayat held on 21.1.2002. In the said election the petitioner secured highest number of votes and was declared elected. The present opp. party No. 1 filed Election Misc. Case No. 19 of 2002 before the learned Civil Judge (Jr. Division), Puri challenging the election of the petitioner alleging that the petitioner being the father of four children was disqualified from contesting the election in view of the embargo provided under Section 25(1)(v) of the Orissa Grama Panchayats Act (hereinafter referred to as 'the Act'). In that petition it was specifically alleged that the fourth child Sanjay was born on 15.1.1997 which is after the cut off date. Petitioner in his counter refuted the allegation claiming inter a that he has only three children, namely Santosh, Susanta and Jai and that these children were born before the cut off date. He specifically pleaded that Sanjay is not his child, but the child of his brother.

(3.) MR . P.K. Rath, learned counsel for petitioner submitted that the Courts below committed legal error in relying heavily on the entries made in the Family Survey Register of Anganbari, Ext. 1, although the said register was not a public document. He submitted that as the Family Survey Register of Anganbari. Centre is never maintained by a public servant the same is therefore, not admissible in evidences per Section 35 of the Evidence Act. In support of his contention he relied on the decisions in : AIR2004Ori14 Bami Bewa v. Krushna Chandra Swain @ Gochhayat and Ors. : AIR1986SC3 Ram Singh and Ors. v. Col. Ram Singh; : 1970CriLJ496 Ram Prasad Sharma v. The State of Bihar. Mr. Rath further submitted that the entries in the School Register, the Birth Certificates and the oral evidence of O.P.Ws. clearly proved that Sanjay born in 1997 is the son of Sarbeswar Mallick, who is the brother of the petitioner, but Courts below ignored those evidence and arbitrarily held that Sanjay is the fourth child of the petitioner. According to him, the finding of the Courts below is contrary to the evidence on record and established principles of law.