HIGH COURT OF ORISSA: CUTTACK W.A. No.381 of 2010 From judgment dated 01.11.2010 passed by the learned Single Judge in W.P.(C) No.2599 of 2009. -------- Ch. Sudhakar Reddy, S/o. Ch. Bairagi Reddy, Vill: Dankapadu, P.S. Mendrajpur, P.S. Golanthara, Dist : Ganjam … Appellent -Versus- Tipnna Kesab Reddy, S/o. T. Khetrabasi Reddy, AT: Parapentha, P.O. Mandrajpur, P.S. Golanthara, Dist: Ganjam and others … Respondents For Appellant : M/s. Mr. Jagannath Pattnaik, Sr. Advocate, B.P. Mohanty, T.K. Pattnaik, A. Pattnaik, K.P. Ray & Miss A. Pattnaik For Respondents : M/s. R.K. Rath and P.K. Panda (For Respondent No.1) Additional Standing Counsel (For Respondent Nos.2 and 3) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Hearing: 17.12.2010 Date of Judgment: 02.02.2011 B.N. MAHAPATRA, J. In this appeal the appellant has challenged legality of the judgment dated 01.11.2010 passed by a learned Single Judge of this Court in W.P.(C) No.2599 of 2009 on the ground that the same has been decided on the basis of wrong interpretation of the statute. The learned Single Judge quashed the impugned judgments passed by the Election Tribunal as well as the appellate authority and directed that respondent No.1 shall continue as the elected Sarpanch of Ekasinghi Grama Panchayat in the district of Ganjam. 2. Bereft of unnecessary details, the facts and circumstances giving rise to the present appeal are that the present appellant along with respondent No.1 filed nomination papers for contesting the election to the office of Sarpanch of Ekasinghi Grama Panchayat in the district of Ganjam. At the time of filing of nomination paper, the present appellant filed an objection before the Election Officer stating that respondent No.1 has not attained the age of 21 years and thus, he was not eligible to contest the election, but such objection was ignored by the Election Officer and nomination paper of respondent No.1 was accepted. Since, respondent No.1 had secured more votes than the appellant, he was declared elected. The appellant filed Election Petition No.2 of 2007 before the Civil Judge (Jr. Division), Berhampur seeking declaration of the election of respondent No.1 as void and for declaring the appellant as Sarpanch of the said Grama Panchayat. The appellant in support of his claim relied upon the certificate granted to respondent No.1 by the Board of Secondary Education, Orissa in the High School Certificate Examination for proving his date of birth as 25.05.1986 and as such, according to the appellant, respondent No.1 was 20 years 7 months and 2 15 days old on the date of filing of the nomination paper. Respondent No.1, on the other hand, claimed that he was born on 08.07.1984 and was admitted in a Project Upper Primary School on 08.11.1989 and while continuing his studies in Class-II, left the school on 30.04.1992 and was admitted in a school at Bhubaneswar. He was again brought back to village Parapentho and was admitted in Biswanthpur Chhaka Upper Primary School in Class-III on 10.07.1993 by mentioning his date of birth as 03.05.1985. His further case is that the date of birth i.e. 25.05.1986 cannot be acceptable as his mother had undergone a family planning operation on 21.12.1984 in the Public Health Centre at Keluha Palli vide entry No.300 dated 21.12.1984. On the basis of the voter’s list the Election Officer held respondent No.1 eligible to contest the election. The voter list has been prepared in accordance with law and no objection was raised during preparation of the same. On the basis of oral and documentary evidence, the Election Tribunal allowed the election petition by judgment dated 07.09.2007 holding that respondent No.1 was not 21 years old on the date of filing of the nomination paper. Respondent No.1 being aggrieved preferred Election Appeal No.6 of 2007 before the learned District Judge, Ganjam- Gajapati, who also confirmed the order of the Election Tribunal by judgment dated 10.02.2009. Being aggrieved, respondent No.1 preferred a writ petition bearing W.P.(C) No.2599 of 2010 before this Court. The learned Single Judge allowed the writ petition, quashed the 3 order/judgment of the Election Tribunal as well as the appellate authority, and directed that respondent No.1 shall continue as the Sarpanch of Ekasinghi Grama Panchayat. Hence, the present writ appeal. 3. Mr. Jagannath Pattnaik, learned Senior Counsel appearing for the appellant submits that in the High School Examination Certificate issued by the Board of Secondary Education, Orissa, the date of birth of respondent No.1 was mentioned as 25.05.1986 and therefore, when respondent No.1 filed his nomination paper to contest the election to the office of Sarpanch in the year 2007, he was 20 years 7 months and 15 days. At the time of filing of nomination, the appellant filed an objection to the nomination of respondent No.1 to the effect that respondent No.1 has not attained the age of 21 years. The Election Officer ignoring the said High School Examination Certificate allowed respondent No.1 to contest the election taking into consideration the voter’s list and voter identity card. Learned District Judge while upholding the decision of the learned Civil Judge (Jr. Division), Berhampur placed reliance on various judgments of this Court as well as the apex Court and came to the conclusion that respondent No.1 was under-age at the time of filing of nomination paper for contesting the election. Learned District Judge, Berhampur has rightly relied upon two decisions of this in the case of Chandrakanti Jena vs. Banalata Jena & Ors., (2004) Suppl. OLR 335 and Harekrishna Das vs. Chairman, Paradeep Port Trust & Another, 99 (2005) 4 CLT 43 and held that the Certificate issued by the Board of Secondary Education is more authentic and acceptable document. Mr. Pattnaik, learned counsel strenuously argued that the learned Single Judge has erroneously come to a conclusion that a person just on completion of 20 years attains the age of 21 years. This finding of the learned Single Judge is contrary to the decision passed by this Court in the case of Kuna alias Pradeep Kumar Jena vs. State of Orissa, 1993 (II) OLR 536. The age mentioned in Voter’s Identity Card is of self declaratory in nature. Both the apex Court and this Court have held in several judgments that when the Board Certificate of a person is available that is more authentic and the same cannot be disbelieved. The learned Single Judge has misinterpreted Section 11(c) of the Grama Panchayat Act and held that respondent No.1 has attained the age of 21 years on the date of filing of the nomination paper. The word “attained” means completed. The respondent No.1 has not completed 21 years of age at the time of filing of nomination paper. Placing reliance upon the judgment of the apex Court in the case of Sushil Kumar vs. Rakesh Kumar, AIR 2004 SC 230, it was submitted that the date of birth in Voter’s List and Election Identity Card issued by the Election Commission is not conclusive. But in the present case, as it appears, learned Single Judge has not considered this aspect. It is submitted that in the case of Ranjan Acharya @ Ranjan Kumar Acharya vs. Arjun Rout and Another, 2010 (1) CLR 17, this Court held that the date of birth 5 available in the School Admission Register has more probative value than the entry made in the Voter’s Identity Card. Placing reliance in the case of the Shalini Shyam Shetty & Anr., vs. Rajendra Shankar Patil, (2010) 8 SCC 329, it was submitted that the learned Single Judge should not have interfered with the concurrent finding of the Election Tribunal as well as the Appellate Authority. 4. Mr. R.K. Rath, learned senior advocate appearing for respondent No.1 strongly supported the judgment passed by the learned Single Judge. It was vehemently contended that the mother of respondent No.1 had undergone family planning operation in December, 1984 and therefore, at no stretch of imagination it can be believed that the elected candidate was born in the year 1986. Relying upon the decisions of the apex Court in the case of State of Punjab vs. Shiv Ram and others, AIR 2005 SC 3280, Mr. Rath contended that the failure of family planning operation has not been proved. Both the Trial court as well as the appellate court have mechanically accepted the stand taken by the writ appellant without any supporting evidence. Placing reliance upon the decision of the apex Court in the case of Brij Mohan Singh vs. Priya Brat Narayan Sinha & Ors., AIR 1965 SC 282, Mr. Rath submitted that normally it often happens that parents suppress the actual date of birth and enter less age of their children at the time of first admission in the School so that in later life they would have an advantage for seeking public service for which the minimum and 6 maximum age limit is prescribed. Relying on the said decision, it is further submitted that where the election is challenged on the ground that the elected candidate was below 25 years of age on the date of filing of nomination paper and thus, is disqualified under Article 137, the burden to prove that the age of the elected candidate is below 25 years on the relevant date is on the election petitioner. 5. On the above contentions, the following questions fall for consideration by this Court: (i) Whether respondent No.1 has completed the age of 21 years on the date of filing nomination paper? (ii) Whether the learned Single Judge is right in reversing the concurrent finding of fact recorded by the Election Tribunal as well as the 1st Appellate Authority by recording a different finding and whether the said finding of the learned Single Judge is erroneous and error in law? (iii) Whether the election of respondent No.1 as Sarpanch of Ekasingi Grama Panchayat is null and void and the appellant can be declared as elected Sarpanch of the said Grama Panchayat ? 6. In order to deal with the above questions it is necessary to keep in mind the facts which are not in dispute. The present appellant, who was the election petitioner, and respondent no.1, who is the elected candidate, were the only two candidates in the election for the office of Sarpanch of Ekasinghi Grama Panchayat. When the nomination papers were scrutinized the appellant raised objection before the Election Officer 7 that respondent no.1 had not attained the age of 21 years and thus was not eligible to contest the election. Ignoring such objection the nomination of respondent no.1 was accepted. In the said election, respondent no.1 secured 48 more votes than the appellant and was declared elected. The specific case of the appellant is that in the High School Examination Certificate issued by the Board of Secondary Education, Orissa, the date of birth of respondent no.1 was reflected as 25.05.1986. Therefore, when respondent no.1 filed his nomination paper for election to the office of Sarpanch in the year 2007, he was 20 years, 7 months and 15 days old. According to respondent No.1, the age mentioned in the certificate issued by the Board of Secondary Education, Orissa is not correct. His specific case is that he was born on 21.12.1984 as per the horoscope. The Election Tribunal as well as the 1st Appellate authority wrongly accepted his date of birth as mentioned in the certificate issued by the Board of Secondary Education and illegally held that on the date of filing of the nomination paper respondent no.1 had not completed the age of 21 years ignoring the voter’s list, voter identity card and the fact that his mother had undergone family planning operation on 21.12.1984. 7. Now coming to the first question as to whether respondent no.1 had completed the age of 21 years on the date of filing of nomination paper, we have to weigh the evidence adduced by the parties 8 in respect of their claims. As per the certificate issued by the Board of Secondary Education, Orissa, the date of birth of respondent No.1 is 25.05.1986. Thus, on the date of filing of nomination paper on 09.01.2007 respondent No.1 was 20 years, 7 months and 15 days old. It is not in dispute that the mother of respondent no.1 had undergone family planning operation in December, 1984. If it is taken into consideration that after family planning operation birth of respondent No.1 is not possible, then the date of birth mentioned in the High School Certificate issued by the Board of Secondary Education that respondent No.1 was born on 25.05.1986, which is after the date of family planning operation is not correct. Learned Single Judge held that the date of birth of respondent No.1 elected candidate mentioned in the Voter Identity Card (Ext-B) as on 01.01.2002 shows to be 18 years and thus, the elected candidate has a right to exercise his franchise as on 01.01.2002. If this is taken into consideration then by the date of filing of nomination in the year 2007, the elected candidate had completed 21 years of age. It is further observed by the learned Single Judge that it is a common knowledge and judicial notice can also be taken to the fact that parents have a tendency to reduce the age of their child by mentioning a subsequent date of birth in the School Register which would ultimately culminate in the certificate issued to the children in the High School Certificate Examination. Referring to the law laid down in the case of 9 Suryadev Rai vs. Ram Chander Rai, AIR 2003 SC 3044, learned Single Judge held that a patent error is an error which is self evident i.e., which can be perceived or demonstrated without involving into any length or complicated argument or a long drawn process of reasoning which can be corrected by the High Court in exercise of its power under Article 227, if such error is manifest and apparent on the face of the proceeding, such as when it is based on clear ignorance or utter disregard of the provisions of law and grave injustice or gross failure of justice will be occasioned thereby. Learned Single Judge further held that to attain the age of 21 years would unambiguously mean that a person on completion of 20 years of age attains the age of 21 years. Therefore, even accepting the date of birth as mentioned in the matriculation certificate of the petitioner, he already attained the age of 21 years as mandate in Section 11(c) (iii) of the Grama Panchayat Act and the learned Courts below have erred in law in interpreting the said clause to the effect that a person should complete 21 years of age. 8. Admittedly, in the instant case, the date of birth of Respondent no.1 has been written as 25.05.1986 in the High School Examination Certificate. Respondent no.1 in his evidence on oath admitted that in the school certificate and Board Certificate his date of birth was recorded as 25.05.1986. He has also admitted that before two months of the Board Examination, he filled up form in the School in which there is a column to mention the date of birth. The date of birth 10 mentioned in the said certificate issued by the Board of Secondary Education, Orissa has never been challenged before any School authority or Board of Secondary Education or any court of law even though respondent no.1 received the same in the year 2003 and filed the nomination paper in 2007. This Court in the cases of Chandrakanti Jena v. Banalata Jena and other; 2004 (Supp) OLR 335 and Harekrushna Das v. Chairman, P.P.T and another; 99 (2005) CLT 43 held that the Matriculation Certificate is a more authentic and more reliable document. Again this Court in the case of Rajan Acharya @ Ranjan Kumar Acharya (supra), held that the date of birth available in the school admission register has more probative value than the entry made in the Voter’s Identity Card. 9. The stand taken by respondent no.1 and the observation of the learned Single Judge that the parents have a tendency to reduce the age of their children by mentioning the subsequent date of birth in the School Admission Register, which would ultimately culminate in the certificate issued to the children in the High School Certificate Examination has not been proved by respondent No.1 through parents to that effect in the present case. 10. The apex Court in Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230, held that the date of birth of a voter contained in the voter’s list and election Identity Card issued by the Election Commission is not conclusive. 11 11. The apex Court in the case of State of Punjab vs. Shiv Ram and others (supra), held that there are instances of failure of many sterilization operations and many women also have given birth of child after under-going such operation. 12. The finding of the learned Single Judge that on completion of 20 years a person attains the age of 21 years is contrary to the decision of this Court in the case of Kuna @ Pradeep Kumar Jena v. State of Orissa, 1993 (II) OLR 536. In the above case, it is held that “attained the age of 18 years” means “completed the age of 18 years”. 13. The Patna High Court in the case of Bhim Mandal vs. Magaram Corian and others, AIR 1961 Pat. 21, held that when the age of majority has been provided by law to be 18 years, any person less than that age, even by a day, would be a minor in law. The fact, therefore, that 17 years 5 months is very close upon 18 years is no legal ground for holding that in such a case, the person should be considered to be a major in law. 14. The horoscope has been marked as Ext. A. It is the admitted fact that the mother of respondent no.1 has not been examined to depose about such fact. The father of respondent no.1 who was examined as D.W.4 in the court below deposed that he prepared the horoscope of respondent no.1 by mentioning his actual date of birth as 08.07.1984, but the person who prepared the horoscope, namely Brahmananda Purohit has not been examined in this case to speak that he prepared 12 the horoscope (Ext.A). Interestingly though the evidence of D.W.4-father of respondent no.1 was that he has three daughters and two sons, but he was unable to say the date of birth of his other four children save and except that of respondent no.1. Moreover, horoscope is a self serving document. In view of the same, the same does not inspire confidence. 15. In view of the above, we are of the considered view that respondent no.1 had not completed the age of 21 years on the date of filing of nomination paper. 16. The second question is as to whether the learned Single Judge is right in reversing the concurrent finding of fact recorded by the Election Tribunal as well the appellate authority by recording a different finding and whether the said finding is erroneous and error in law. The concurrent finding of both the Election Tribunal and the appellate authority is that the date of birth of respondent No.1 is 25.05.1986 and he was under age on the date of filing of nomination paper. Their above finding is based on the date of birth recorded in the High School Certificate issued by the Board of Secondary Education, Orissa. During hearing of the election petition, the present appellant was examined as P.W. 1 and at the behest of the respondents, four witnesses were examined and respondent No.1 was examined as D.W. No.1 and three others were examined as D.W. Nos.2,3 and 4. The appellant exhibited two documents; viz, the Board Certificate issued in favour of respondent No.1, and the objection petition filed before the 13 Election Officer (Ext-2). Respondent No.1 also produced seven documents which were marked as Exhibits-A to F. The learned Election Tribunal believed the genuineness of Ext.1 i.e. Certificate issued by the Board of Secondary Education, Orissa in favour of respondent No.1 and disbelieved Exts A to C which show that respondent No.1 was born on 08.07.1984. Learned 1st Appellate Authority held that respondent No.1 though categorically stated in paragraph-17 of his evidence that his date of birth has been recorded in the hospital records, but he has not produced the said birth certificate. If such an important document was available, but not produced in Court, adverse inference against the case of respondent No.1 is to be drawn. The said finding is in conformity with the law laid down by the apex Court in the case of Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, AIR 1968 SC 1413, wherein the apex Court following the Privy Council decision has held thus: “Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issue in controversy and to rely upon the abstract doctrine of onus of proof.” 14 The learned Appellate Court after vividly discussing the evidence both oral and documentary adduced before the Trial Court came to the conclusion that the date of birth recorded in the High School Certificate Examination issued by the Board of Secondary Education is more authentic and reliable document. The appellate authority further held that respondent No.1 had never challenged the date of birth mentioned in the Board Certificate either in any court of law or before the Board Authority and the finding of the Election Tribunal is based on proper appreciation of evidence on record which cannot be said to be perverse. Relying on several judicial pronouncement, the first appellate court held that the contention that no child could born after tubectomy operation of a lady cannot be sustained. The contention taken by Mr. Rath that failure of family planning operation has not been proved and that no evidence was adduced by the appellant to prove that the horoscope was not correct is not sustainable in view of the fact that the date of birth recorded in the High School Certificate Examination issued by the Board of Secondary Education, Orissa is more authentic and reliable document and the same has not been disproved by respondent No.1 by adducing any evidence. Therefore, the law laid down in the case of Suryadev Rai (supra) has no application to the fact situation. The apex court in the case of Shalini Shyam Shetty & Anr. (supra), held that the High Court cannot interfere to correct mere 15 errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is possible. In other words, the jurisdiction has to be very sparingly exercised. For the reasons stated above, the learned Single Judge is not right in reversing the concurrent finding of fact recorded by both the Election Tribunal as well as the 1st Appellate Authority by recording a differing finding and such finding of the learned Single Judge is erroneous and error in law. 17. In view of our above findings, we answer the third question in affirmative by holding that the election of respondent no.1 as Sarpanch of Ekasinghi Grama Panchayat is null and void, and the appellant is declared as elected Sarpanch of the said Grama Panchayat. 18. In the result, the writ appeal is allowed, the judgment of learned Single Judge is set aside, and those of the Election Tribunal and the appellate authority are maintained. No order as to costs. ……………………... B.N.Mahapatra, J. V. Gopala Gowda, C. J.