Dismissed

Sadasib Barik v. Dhaneswar Baral

Orissa HC17 Mar 2016WP(C)/19727/2013

Case brief

AI extract

What is this about?

This writ petition challenged the election of a respondent to a Panchayat seat on grounds of caste discrepancy between Revenue records. The Court dismissed the petition, holding that it amounted to an impermissible re-appreciation of evidence by the High Court against the concurrent findings of fact by two subordinate courts.

What did the court decide?

The writ petition is dismissed without costs; Legal Right Certificates sent back.

2. In this writ petition the petitioner, being the election petitioner, assails the judgment d ated 18.5.2013 passed by learned District Judge, Puri in Election Appeal No.3/2012 confirming the judgment dated 9.11.2012 passed by learned Civil Judge (Jr. Division), Puri in Election Mi sc. Case No.7/2012 dismissing the election petition of the petitioner in which he has challen ged the election of the returned candidate, i.e. opposite party no.1, who has been elected to hold the post of Member of Ward No.18 of Abhayamukhi Grama Panchayat on the ground that oppo site party no.1 does not belong to Khandayat caste and he belongs to Oda Khandayat, which does not come under OBC or SEBC category.

3. The specific case of the petitioner is that as per the Record of Rights under Ext.1, opposi te party no.1 is the member of Oda Khandayat caste. With reference to the said Ext.1, i.e. t he R.O.R., the Revenue Inspector submitted the report before the Tahasildar, but intentional ly mentioning the caste as Khandayat. It is further stated that as per the Notification Oda Khandayat are not coming under the purview of SEBC or OBC category. On the contrary, the re turned candidate, i.e., opposite party no.1 by relying upon the R.O.R., i.e. Ext.B took a spec ific stand that he is Khandayat by caste which is squarely covered under category of SEBC and OBC.

4. Learned court of first instance took into consideration the pleading as well as the evidenc e adduced on behalf of the parties, especially the R.O.R. Ext.B and the Notification issued by the Government of Orissa in the Department of Tribal Welfare dtd.10.9.1993 came to the findi ng that opposite party no.1 is

Khandayat by caste and is covered under the category of SEBC or OBC. On such finding, the lea rned Trial Judge dismissed the election petition filed by the petitioner as per his judgment described. The findings recorded by the learned Trial Judge has been confirmed by the learned Appellate Judge, i.e. the District Judge, Puri.

5. In assailing the concurrent finding of facts by two courts, learned counsel for the petitio ner submits that the report was prepared on the basis of Ext.1 and Ext.1 clearly describes tha t opposite party no.1 is belong to Oda Khandayat. It is therefore contended that on a similar situation the application for Caste Certificate by one Laxman Swain that he belongs to SEBC o r OBC category and has been rejected as he is a Member of the Oda Khandayat as reported by the Revenue Inspector and therefore the order passed by the Tahasildar granting the certificate i n favour of opposite partyno.1 to be a member of the Khandayat is illegal and should be set a side.

6. It is further argued that opposite party no.1 should have been treated as a Member of the O da Khandayat category and the learned District Judge should not have held that refusing to gr ant certificate in favour of Laxman Swain has not challenged the said order before the appropr iate authority, hence the same cannot be of any avail to the petitioner.

7. Learned counsel for the petitioner also argued that the learned District Judge erred in hol ding that Oda and Odia are synonymous to each other and Oda and Odia are same as land cultivat ors. Hence it is stated that the order passed by the learned District Judge confirming the or der and judgment of the learned Civil Judge (Jr. Division), Puri is erroneous and is liable to be set

8. Learned counsel appearing for opposite party no.1 also argued that since the findings ar e concurrent in nature, the writ court should not ordinarily interfere with the finding s of facts and writ should be dismissed only on that ground. The second contention raised by t he learned counsel for opposite party no.1 is that though Ext.1 describes the petitioners pred ecessors in interest as Oda Khandayat, in the R.O.R. marked as Ext.1 on behalf of the petition er, which has been issued on 22.1.1987, the R.O.R. marked as Ext.B refers the predecessor in interest of opposite party no.1 is members of Khandayat community and curiously enough Ext .B has been issued on 22nd January, 1987 by the same consolidation authorities. So, it is cont ended that the findings of fact that opposite party no.1 belongs to Khandayat community is not per se illegal and having appreciated the materials on record, the caste of opposite p arty no.1 cannot be challenged.

9. It is also stated by opposite party no.1 that the fact that one Laxman Swain has been refus ed to grant of caste certificate belong to SEBC or OBC category as he belongs to Oda Khandaya t caste is not relevant as he is not a party to the proceeding.

10. Taking the issues raised at the bar one after another, this Court finds that coming to th e first contention itself, it is seen that though Ext.1 describes the predecessor in interest of opposite party no.1 as Oda Khandayat, Ext.B itself shows that the predecessor in interest o

f Ext.1 belongs to Khandayat category. So in this view of the conflicting entries in the R.O .R., findings recorded by the learned Trial Judge, who has the benefit of recording the evid ence himself and witnessing the demeanor of witnesses and finally appreciating the evidence, h as come to definite conclusions which

are confirmed by the learned appellate Judge should not be rightly brushed aside. 11. In this case, it is apparent that the petitioners counsel wants this Court to reapprecia te evidence in a writ of certiorari and give a finding by over-turning the concurrent findi ngs of both the learned Trial Judge and the learned Appellate Judge. In this connection, it is appropriate to take note of the constitution Bench Judgment of the Honble Supreme Court in the case of Sayed Yakoob v. K.S. Radhakrishnan and others; AIR 1964 Supreme Court 477, wh erein the Honble Supreme Court has dealt with the scope of writ of certiorari. It is appropri ate to quote the relevant paragraph:-

The jurisdiction of High Court to issue a writ of certiorari is a supervisory jur isdiction and the Court exercising it is not entitled to act as an appellate Court. This limit ation necessarily means that findings of fact reached by the inferior court or Tribunal as res ult of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An e rror of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. xxx xxx xxx.

12. The second question raised is that one Laxman Swain was refused to grant with a certifica te as he belong to the Oda Khandayat category. However, neither the said Laxman Swain is a party to the proceeding nor he is examined as a witness in the case nor the officials are res ponsible for rejecting his application for grant of SEBC or OBC certificate has been examined . Moreover, the learned District Judge was right in holding that none issue of certificate and its challenging the same to be illegal is in the domain of the said Laxman Swain and that can not be taken into consideration in a lis between these parties. In view of the aforesaid

findings, it is not necessary to decide as to whether Oda and Odia are synonymous or not. 13. Thus, on the basis of the aforesaid discussion of facts and law having given considerab le thought to the matter, this Court is of the opinion that the writ petition is devoid of any merit and the same cannot be allowed as it would amount to re-appreciation of evidence by tw o courts, who have come to concurrent finding of facts. 14. Hence, the writ petition is dismissed without cost. Send back the L.C.Rs. immediately.

Sadasib Barik v. Dhaneswar Baral

Case brief

What is this about?

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Sadasib Barik v. Dhaneswar Baral

Case brief

What is this about?

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