JAIMANI MAJHI Vs. TRUPTIMAYEE MEHER

JUDGEMENT

(1.) Petitioner calls in question legality of decision rendered by the Election Commissioner-cum-Civil Judge (Senior Divn.), Naupada and learned District Judge, Kalshandi-Nuapada in respect of a petition under Section 44 of the Orissa Panchayat Samiti Act, 1959 (in short, the 'Act'). Petitioner was elected as a Samiti member from Gorla Samiti constituency of Sinapali Block, while opp. party No. 1 Truptimayee Meher was elected from Hatibandha constituency of the same Block. Post of Chairman of Sanapali Panchayat Samiti was reserved for Scheduled Tribe woman candidate. Both petitioner and opposite party No. 1 contested for Chairmanship. Petitioner was elected. It is to be noted that election was held on 23-1-1997. An election dispute was filed by opp. party No. 1 challenging petitioner's election on the ground that she does not know how to read and write Oriya. Learned Civil Judge as Election Commissioner on assessment of evidence came to hold that petitioner was disqualified as she is not able to read and write Oriya. For that purpose, evidence of opp. party No. 1 and Block Development Officer who was examined as OPW 1 was taken note of. Conclusion was assailed in appeal before learned District Judge who affirmed the conclusion.

(2.) Learned counsel for petitioner urged that due and proper opportunity was not granted to the petitioner to show that she is able to read and write Oriya before drawing an adverse inference. With reference to the affidavit filed in this Court and vakalatnama, it is stated that those clearly show that she has signed her name in Oriya and it amply goes to prove that she knows to read and write Oriya. Learned counsel for opp. party No. 1 submitted that on assessment of evidence Courts below came to a factual conclusion that she does not know to read and write in Oriya. While dealing with a writ petition, it is not permissible to conclude otherwise, particularly when materials exist to support the conclusion.

(3.) Section 45, appearing in Chapter VII of the Act deals with disqualification for becoming a member and continuing as a member. The said provision, so far as relevant reads as follows :