Petitioner challenged his disqualification as a Panchayat Samiti Member for allegedly begetting a third child. The High Court upheld the disqualification, finding the Elections Tribunal and District Judge correctly shifted the onus to the petitioner, who failed to prove the claimed child was born to his brother.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P. (C) No.25618 of 2013
04.08.2016 Heard learned counsel for the petitioner and learned counsel for opposite party no.1
Petitioner was elected as a Samiti Member from Pathara Gram Panchayat Constituency o
f Khallikote Panchayat Samiti. The present opposite party no.1 moved the Election Tribunal for
declaration that the present petitioner is disqualified under Section 45 (1)(v) of the Pancha
yat Samiti Act to continue as Samiti Member, as he has begotten a third child after the cutoff
date. The Election Tribunal allowed the election petition and declared the present petitione
r to be disqualified. The present petitioner preferred appeal before the District Judge, Ganj
am at Berhampur. Learned District Judge, Ganjam at Berhampur confirmed the order of the Elect
ion Tribunal. In the present writ petition, the petitioner has therefore impugned the confirm
ing judgment delivered by the learned District Judge, Ganjam at Berhampur in Election Appeal N
o.6 of 2013.
The sole question that arises for consideration in the present writ petition is, whe
ther the alleged third child, a son named Om Subham Dash is the son of the present petitioner
Sakaleswar Dash or the son of his younger brother Gouri Shankar Dash.
The allegation of the Election Petitioner (present opp. party no.1) was countered by
the present petitioner, who was opposite party no.1 before the Election Tribunal, by filing a
written-statement, wherein it was asserted that the alleged third child Om Subham Dash is not
the son of Sakaleswar Dash and he is the son of his younger brother Gouri Shankar Dash.
Both the parties adduced oral as well as documentary evidence. The petitioner himse
lf was examined as P.W.1. P.W.2 is the Headmistress of Balantara U.P. School and P.W.3 is the
Medical Officer of C.H.C., Khallikote. Besides the aforesaid oral evidence, the Election Pet
itioner (present opp. party no.1) relied on several documents from Ext.1 to Ext.9.
The present petitioner (opp. party no.1 before the Election Tribunal) on the other h
and examined himself as O.P.W.1, one Pradeep @ Pradipta Kumar Khatei, Zonal Programmer, Sarva
Siksha Abhiyan (S.S.A.), Chatrapur as O.P.W.2 and his younger brother Gouri Shankar Dash as O.
P.W.3. Besides oral evidence, he also relied on documentary evidence from Ext. A to Ext. E.
Learned Court below, relying on various documentary evidence and oral evidence adduc
ed by the present opposite party no.1 (petitioner before the Election Tribunal), believed the
assertion of the present opposite party no.1 and shifted the onus on the present petitioner (o
pp. party before the Election Tribunal) to prove his assertion that the alleged third child Om
Subham Dash is the son of his younger brother Gouri Shankar Dash. The present petitioner, as
opposite party no.1 before the Election Tribunal, heavily relied on Ext. E, which is an intim
ation given by the Headmistress of Balantara U.P. School to S.S.A., Chatrapur saying the alleg
ed third child Om Subham Dash as the son of Gouri Shankar Dash and his wife.
Learned counsel for the present petitioner submits that, when Ext.3 is a manufacture
d document and Ext.9 is a document bearing nobodys signature, the same should not have been re
lied on by the learned courts below. It is also submitted by learned counsel for the petition
er that, at the time of trial before the Election Tribunal, the present petitioner as opp. par
ty no.1 before the Election Tribunal had filed a petition to send Ext.3 for examination by a H
andwriting Expert, but the same was rejected.
It is strenuously contended by learned counsel for the petitioner that, the document
s relied on by the learned courts below being infirm, the findings arising therefrom by the Co
urts below are also vulnerable.
Learned counsel for opposite party no.1 on the other hand submits that, by adducing
Exts.3, 6, 7, 8 & 9 the Election Petitioner (present opp. party no.1) has conclusively proved
that the alleged third child Om Subham Dash is the son of the present petitioner, and Ext. E t
hough asserted to be a contradictory document, is not in fact contradictory to Exts.7 and 8, a
nd the same itself has no potency to disturb the findings arrived at by the learned courts bel
ow on the basis of Exts.3, 6, 7, 8 & 9.
From the submissions advanced by learned counsels for the parties, it is clear that,
no point of law has been raised in this writ petition except the facts proved before the Elec
tion Tribunal, and the findings thereof has already been confirmed by the appellate court.
The question of onus, however, is the only point of law pressed by learned counsel f
or the petitioner.
From the findings of learned Election Tribunal under Issue No.3, it is clear that, r
ightly reliance has been placed on Exts.3, 6, 7, 8 & 9, and especially when no objection was r
aised by the present petitioner (opp. party no.1 before the Election Tribunal) while admitting
Exts.6 & 9 into evidence.
The present petitioners younger brother Gouri Shankar Dash, who was examined as O.P.
W.3, could not say about the date of birth of the alleged third child Om Subham Dash. From th
e evidence of the aforesaid O.P.W.3, if the date of birth of O.P.W.3s daughter Suprava Dash an
d the alleged third child Om Subham Dash is compared, it is to be found that the gestation per
iod of Om Subham Dash was only six months eighteen days, which, though not a medical impossibi
lity, cannot be accepted without oral and documentary evidence, proving the fact that the alle
ged third child was born premature and he was kept under proper medical care for his survival.
Besides the effect of the oral evidence tendered by the Election Petitioner (opp. party no.1
) and the documentary evidence proved by the present petitioner, especially Exts. 3, 6, 7, 8
& 9 and the documentary evidence proved by the present petitioner vide Ext. E, the learned Cou
rts below have discussed in detail about the effect of the evidence adduced and have come to t
heir findings.
I do not deem it a necessity to reiterate the same rationale and the findings arrive
d at by the learned courts below, on the basis of which the learned Election Tribunal arrived
at the conclusion and the learned appellate court confirmed the order of the Election Tribunal
.
So far as the question of shifting of onus on the petitioner (present opposite party
no.1 before the Election Tribunal is concerned), it is settled in law that onus can always be
shifted in a given case, if the petitioner has proved his case by preponderance of probabilit
y and the opposite party has asserted positively that the facts alleged by the petitioner is n
ot proved.
In the present case the Election Petitioner (present opposite party no.1) has adduce
d sufficient evidence, which clearly discharge his burden to prove that the alleged third chil
d Om Subham Dash is the son of the present petitioner Sakaleswar Dash and not the son of his
younger brother Gouri Shankar Dash. In such a situation, it has been rightly held by the lear
ned lower appellate court that the onus shifted to the present petitioner was not at all disch
arged properly. I find no fault in such findings arrived at by the learned appellate court.
Taking into consideration all the aforesaid facts and especially the evidence on rec
ord and the rationale supplied by the learned courts below in accepting the evidence and esche
wing Ext. E tendered by the present petitioner, I find no infirmity in the orders impugned in
the present writ petition, and accordingly the writ petition is dismissed.
C.R. Dash, J.
2
3 issues framed by the court
Whether the alleged third child Om Subham Dash is the son of the petitioner Sakaleswar Dash or his younger brother Gouri Shankar Dash.
Whether the onus of proving the assertion regarding the paternity of the third child was properly shifted to the petitioner.
Whether the findings of the Election Tribunal and District Judge regarding the insufficiency of the petitioner's evidence are infirm.
1 provisions across 1 enactments
Sakaleswar Dash
Opposite Party No.1
C.R. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court