ORISSA HIGH COURT: CUTTACK W. P.(C) NO.10107 OF 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Labangalata Mallick … Petitioner -Versus- Mandakini Mallick and others … Opp. Parties. For Petitioner : M/s. Mahadev Mishra, Miss M.Mishra & C.Mallik. For Opp. Parties : M/s. Addl. Govt. Advocate. (For O.Ps 2 and 3. M/s. D.Nayak, R.K.Pradhan & P.S.Nayak. (For opp. party no.1 ) ----------------------- Decided on 19.08.2010. ----------------------- P R E S E N T: THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. DAS, J. The petitioner was declared elected as Sarpanch of Kayan Grama Panchayat on 22.2.2007. The opp. party no. 1 filed Election Misc. Case No. 37 of 2007 challenging the election of the petitioner before the learned Civil Judge (Jr. Division)-cum- Election Tribunal, Jajpur. The sole ground taken in the election petition was that the petitioner was not eligible to contest the election to the post of Sarpanch, she being unable to read and write Oriya, which is one of the qualification clauses, as prescribed in section 11 (b) of the Orissa Grama Panchayat Act, 1964 (for short, ‘the Act’). The petitioner after appearing in the said election dispute filed a written statement, inter alia, denying the allegations made by the opp. party no. 1. The learned Election Tribunal framed as many as five issues and issue no. 3 was framed with regard to the question as to whether the petitioner, on the date of filing of the nomination paper, was able to read and write Oriya. 2. During the course of hearing, the petitioner exhibited the book “CHHABILA BARNOBODH” as Ext. A and a job card issued by her under her signature as Ext. B. The petitioner was examined as O.P.W.1 in the Election Misc. Case. In her evidence, she stated that she is able to read and write Oriya. In the examination-in-chief, she read some pages of “CHHABILA BARNOBODH” vide Ext. A and also stated that she was reading in CHATA SALI during her childhood. As, in the cross-examination, she stated that she can read Orissa Grama Panchayat Act in Oriya, she was asked to read sections 147 and 148 of the Orissa Grama Panchayat Act (Oriya Edition). The learned Election Tribunal recorded what she read in verbatim and found that it contains several mistakes. In the cross- examination, she was asked by the learned counsel for the 2 election petitioner to write in Oriya. The words dictated by him are, i.e., “SMRUTISIGNDHA SANDHIBIGRHA”, “SAURASTRA DESA RA EKA SAMBRUDHA ANCHAL”, ‘DOCTOR GARDEN BROWN BARTAMANA BRITISH PRADHAN MANTRI’, TRUPTIMAYEE PANIGRAHI. SAMPRATI CHICKEN GUNIA EKA MARATMAKA ROGA’, “AHEE GHATANA BHARATRA DRUSTI, NASA, KARNA, BISE SANGYA MANAKU UDBIGHNA KARICHI”. The learned Election Tribunal finding that there are number of mistakes in the writing of the petitioner (opp. party no. 1 in the court below) to the dictation of the learned counsel for the election petitioner (opp. party no.1 herein), concluded that the petitioner did not know how to read and write Oriya and, therefore, was not eligible to contest the election. 3. An appeal was carried by the petitioner against the judgment of the learned Election Tribunal before the learned District Judge, Cuttack in Election Appeal No. 11 of 2008. The learned District Judge concluding that the specimen writings of the appellant (petitioner herein) taken in presence of the Presiding Officer do not make any sense at all, confirmed the judgment passed by the learned Election Tribunal. 4. Mr. Mishra, learned counsel for the petitioner contended that it is a well settled principle of law that to avoid an election, it is necessary to lead cogent evidence in support of the 3 charge and an election cannot be set aside on presumption, surmises or conjectures. Clear and cogent proof in support of the allegation is essential (See Uma Ballava Rath v. Moheswar Mohanty and others, 88 (1999) CLT 329 (S.C.) He further contended that the portions dictated to the petitioner in court contained complex sentences and “YUKTAKHYARA” which even a student having minor qualification in Oriya could not have correctly written and in all probability would have committed mistakes. He also relied upon the judgment dated 22.6.2009 of this Court rendered in W.P. (C) No. 19747 of 2008 (Kalabati Jena v. Dhaneswar Jena and three others) in support of his contention that this Court has clearly laid down that when there is no minimum standard prescribed in the Grama Panchayat Act, the disqualification clause cannot be strictly construed. 5. Learned counsel for the opp. party no. 1, on the contrary, relied upon the decisions in the case of Mrs. Suryakanti Mishra v. State of Orissa and seven others, 2005 (Supp.) OLR 906 in support of his contention that a Division Bench of this Court has laid down that a candidate would stand disqualified if he/she is unable to read and write Oriya and even though the said disqualification clause does not speak about educational qualification of a candidate, it signifies that a person having no academic qualification is not eligible to stand for 4 election of the Grama Panchayat if he/she is unable to read and write Oriya. The corollary being, even if, a person has educational qualification, but unable to read and write Oriya, he/she is not eligible to stand for election. According the learned counsel, the petitioner was a total novice in reading and writing Oriya and, therefore, the learned courts below have correctly come to the conclusion that the petitioner was ineligible to contest the election and have declared her election to be invalid. He, therefore, submitted that this Court should not re-appreciate the evidence in a writ petition to come to a different conclusion when the writ is in the nature of certiorari. 6. In the case of Mrs. Suryakanti Mishra (supra), it appears that the petitioner therein, who was elected as the Sarpanch in her cross-examination candidly admitted that she was unable to read and write Oriya, which is contrary to the facts of the present case. This Court, taking into consideration such admission concluded that the petitioner therein was not eligible to contest the election. 7. In the case of Kalabati Jena (supra), this Court had the occasion to deal with section 11 (b) of the Act and interpreting the same, it was held as follows:- “The phrase “Read and Write Oriya” has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed thereunder. It is, therefore, incumbent on the 5 part of the court to interpret the said phrase keeping in view the legislative intent for introducing such a disqualification clause in case of Sarpanch and Naib - Sarpanch inasmuch as to find out the object to be achieved by such introduction of the disqualification clause. A person, who can to some extent, read and write Oriya, cannot be said to be unable to read and write Oriya. The standard of reading and writing Oriya having not been specifically provided in the Act and the Rules, the court cannot introduce a minimum standard of a candidate with regard to reading and writing Oriya. It is a common knowledge that even a candidate who has passed Oriya in Matriculation (H.S.C.) may commit various mistakes in writing his answers in Oriya. However, from the same, it cannot be concluded that such candidate does not know how to write in Oriya. Thus, the only interpretation of the phrase “Read and Write Oriya” can be that the candidate should not be illiterate and should at least know how to read and how to write Oriya as a language to a standard as would be required for a person to function as a Sarpanch or a Naib- Sarpanch of a Grama Panchayat. In the instant case, the matter, which was provided to the writ petitioner, was a portion of the O.G.P. Manual written in Oriya for reading the same before the Election Tribunal. A portion from the said book was also dictated to her by the Bench Clerk of the court. The court has found that the petitioner read the portion with much difficulty and in writing she committed several mistakes. It is a common knowledge that legal terms in Oriya are unique and an inhabitant of a Grama, who is otherwise eligible to contest the election for the seat of a Naib - Sarpanch or Sarpanch, can never be used to such terms………” 8. Thus, considering the decisions of this Court in the cases of Mrs. Suryakanti Mishra (supra) and Kalabati Jena (supra), it is abundantly clear that no hard and fast rule can be prescribed for finding out as to whether, a person, who was a contestant in the Grama Panchayat election knows how to read 6 and write Oriya or not. Such conclusion should be drawn from the analysis of facts of each case. No doubt, this Court while exercising jurisdiction under Article 226 of the Constitution in a writ of certiorari is not to re-appreciate the evidence on records. But, however, if it is found that the conclusion drawn by the authorities/courts below are based on surmises and conjectures, this Court can quash such order or orders. 9. Considering the facts of the present case, this Court finds that in the facts of this case, it is not correct to conclude that the petitioner did not know how to read and write Oriya. It is true that the petitioner while reading “CHHABILA BARNOBODH” did not make any mistake and she committed some mistakes while reading the provisions of the Orissa Grama Panchayat Act (Oriya Edition) which she was asked to read and she committed some mistakes while reading the portions dictated to her by the learned counsel for the opp. party no. 1 in the court below. 10. The portion dictated to the petitioner as quoted herein above contained “Yuktakhyaras” and though a person said to be knowing how to read Oriya should be able to write also Yuktakhyaras, but it appears that the above quoted portion was purposely dictated to her which contained difficult conjunction of letters. Hence, this Court finds that the conclusion of the learned 7 courts below that the petitioner did not know how to read and write Oriya is based on surmises and conjectures and as has been laid down by the Hon’ble Supreme Court, on such materials, a duly elected candidate should not be dislodge from the seat to which he/she has been elected. 11. In the result, therefore, both the impugned judgments under Annexures – 2 and 1 passed by the learned Election Tribunal and the learned District Judge respectively are quashed and the petitioner is directed to continue as the Sarpanch of Kayan Grama Panchayat for the rest of the period of her tenure. 12. The writ petition is accordingly allowed. There shall be no order as to costs. …………………… M.M. Das, J. Orissa High Court, Cuttack. August 19th , 2010/Biswal. 8