TANUJA NAYAK Vs. ALLADIN MISHRA

JUDGEMENT

(1.) THE petitioner calls in question the judgment and order dated 5.5.2005 passed by the District Judge, Khurda at Bhubaneswar in Election Petition No.389 of 2003 wherein she was declared to be disqualified for election as Corporator to Ward No.9 of Bhubaneswar Municipal Corporation. The writ petitioner was the opposite party No.1 and the present opposite party No.1 was the election petitioner in the aforesaid case. The present opposite party Nos. 2 to 9 were also opposite party Nos. 2 to 9 in the said case. As per the case of the election petitioner, she contested against the opposite parties No.1 to 8 for the seat of Corporator of Ward No.9 in Bhubaneswar Municipal Corporation in the last Municipal Election. All the candidates filed their respective nomination forms on 2.9.2003. At that time it came to the knowledge of the petitioner that opposite party No.1 was having three children for which she was not eligible to contest the election in view of the provision contained U/s. 70 (3)(m) of the Orissa Municipal Corporation Act. So she tendered a written objection to the opposite party No.9, the Election Officer for cancellation of her nomination, but it was not accepted. Accordingly, the opposite party No.1 contested the election on 19.9.2003 and was declared elected from Ward No.9, while the petitioner was placed in the second position. It is the specific case of the petitioner that the third child of opposite party No.1 namely, Arundhati was born in Life -line Nursing Home, Nayapalli Bhubaneswar on 16.11.1997, which was duly reflected on 24.11.1997 in the Births and Deaths Register, maintained by Bhubaneswar Municipal Corporation. So, she filed the aforesaid election petition to declare the election of opposite party No.1 as the Corporator to Ward No.9 of Bhubaneswar Municipal Corporation as void and to declare her as the elected Corporator of the said Ward. Opposite party Nos.2 to 8 did not contest the election. Opposite party No.1 in her written objection denied to have three children. She specifically denied to have mothered Arundhati at Life -line Nursing Home, Nayapalli, Bhubaneswar. According to her she was born to Gayalata Swain through Trilochan Swain on 16.11.1997 at Saliasahi, Nilachakra Nagar, Nayapalli, Bhubaneswar. The Election Officer, Opposite Party No.9 in his objection contended that the election petitioner did not tender any written objection to him for cancellation of the nomination of opposite party No.1 on the ground that at the time of filing of nomination she had three children.

(2.) ON the above pleadings of the parties, the Court below framed six issues. To prove that opposite party No.1 gave birth to Arundhati on 16.11.1997 in Life -line Nursing Home, Nayapalli, Bhubaneswar, the Election petitioner besides examining herself, examined witness No.2, the vital statistic clerk Bhubaneswar Municipal Corporation. As per the evidence of this witness entry No.9498 in Volume -7 (1997) of the Birth and Death Register of Bhubaneswar Municipal Corporation shows that Arundhati Swain, daughter of Abdhut Swain and Tanuja Swain (opp.party No.1) was born on 16.11.1997, which was marked as Exhibit -4. Column No.19 of the said entry reflects Arundhati to be the third issue of her parents and she was born in Life -line Nursing Home, Nayapalli, Bhubaneswar, while column No.2 shows that Dr. B. K. Jena was the informer of the birth of the new born baby (Arundhati). During cross -examination, witness No.2 admitted that registration No.9498 was not there in the said register since it was torn up. Similarly the signature in the remark column of Exhibit -4 was also found torn up. He specifically stated that he entered the name of Arundhati in Exhibit -4 after an application was filed to obtain her birth particulars. But he failed to say when and by whom the certified copy of the birth particulars was applied for. Opposite party No.1 filed birth certificate of Arundhati vide Exhibit -A showing that she was born on 16.11.1997 at Saliapada to Gayalata Swain through Trilochan Swain. After examining Exhibits -4' and Exhibit -A the District Judge considered Exhibit -4 to be more authentic and held that Arundhati was the third issue of opposite party No.1 and accordingly declared Opp.party No.1 to be disqualified for election as corporattor to ward No.9 of Bhubaneswar Municipal Corporation. Being aggrieved with the said judgment and order, opposite party No.1 has filed this present petition under Articles 226 and 227 of the Constitution of India, as stated earlier.

(3.) ON the other hand, learned counsel for opp.party No.1 submitted that writ jurisdiction not being appellate jurisdiction it should not be exercised only to set right mere error of law, unless there is grave miscarriage of justice and flagrant of law. Since the judgment and order passed by the trial Court is a plausible reasoned order it should not be interfered with.He further submitted that the Court below had the advantage of seeing witnesses examined before him. Those circumstances must have aided him in appreciating the evidence adduced. The entries with regard to birth made in Birth and Death register maintained by the Registrar in due discharge of his official duty is admissible under Section 35 of the Evidence Act. Evidentiary value of Exhibit -4 would certainly outweigh the evidentiary value of Exhibit -A. So, the trial Court rightly declared the writ petitioner to be disqualified for election as the corporator to Ward No.9 of Bhubaneswar Municipal Corporation. No good ground having been made out in the writ petition, it should be dismissed.