Saraswati Mallick Vs State of Odisha

1 . Instant writ petition is filed by the petitioner assailing the impugned judgment dated 24^th December, 2024 passed in connection with Election Appeal No. 06 of 2024 by the learned District Judge, Paralakhemundi, Gajapati confirming the decision of the learned Civil Judge (Junior Division), Mohana in Election Petition No. 06 of 2022 dated 6^th September, 2024 on the grounds inter alia that the same is arbitrary and contrary to law, hence, therefore, liable to be interfered with and set aside.

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2 . The petitioner is the returned candidate in the election held on 16^th February, 2022 for the post of Sarpanch of Damadua

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G.P. under Mohana Panchayat Samiti in the district of Gajapati. The result of the said election was announced declaring the petitioner as the elected candidate receiving 749 votes, whereas, opposite party No.3 polled 620 votes and another candidate, namely, opposite party No.4 managed 511 votes. The losing candidate, namely, opposite party No.3 filed the election petition in the Court of learned Civil Judge (Junior Division), Mohana seeking a declaration of the election process and such election of the petitioner as the Sarpanch of the concerned G.P. as null and void with a plea that he is having more than two children born after the commencement of the Orissa Gram Panchayat (Amendment) Act, 1994 and further to declare her as the elected Sarpanch having secured second highest votes in the election.

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3 . A copy of the election petition is at Annexure-1 and the same is gone through.

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4 . According to the petitioner, the election was held on 16^th February, 2022 and three candidates including her submitted the nomination papers received in Form No.4 and after scrutiny of the same, the list of validly nominated candidates were declared in alphabetical order as per Rule 32 of the Odisha Grama Panchayat Election Rules, 1965 (hence to be called as ‘the Rules’). It has been pleaded that at the time of scrutiny of the nomination paper, no allegation was found against the petitioner for having more than two children born to her after the cut-off date i.e. 18^th April, 1994, but with such an allegation, the election petition was filed by opposite party

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No.3 allegedly with the information obtained from the Anganwadi Centre through P.I.O-cum-C.D.P.O., Mohana under the RTI Act, whereafter, the petitioner filed the written statement therein and denied the assertion of opposite party No. 3 alleging that the election petition was filed with a malafide intention to harass her. A copy of the counter filed by the petitioner is at Annexure-2. At last, upon receiving the evidence from both the sides, the learned Civil Judge (Junior Division), Mohana disposed of election dispute vide Annexure-4 on 6^th September, 2024 allowing the same partly and directed a fresh election to be held with the petitioner being disqualified as the Sarpanch. As against the said judgment in Election Petition No. 06 of 2022 dated 6^th September, 2024, the petitioner filed the appeal but it was dismissed upholding the decision declaring the result of election to the post of Sarpanch of the G.P. in question as invalid and to conduct fresh election for creation of casual vacancy as a result thereof.

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5 . Perused the counter affidavit of opposite party No.3 and the rejoinder affidavit filed by the petitioner to the same.

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6 . Heard Mr. Pradhan, learned counsel for the petitioner and Mr. Dash, learned counsel for opposite party No.3 besides Mr. Ray, learned AGA for the State.

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7 . Mr. Pradhan, learned counsel for the petitioner submits that the decision of the learned court below confirming the judgment in Election Petition No. 06 of 2022 declaring the election of the petitioner as null and void is unjustified and

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not in accordance with law. Referring to Section 32(2) of the Odisha Gram Panchayat (Amendment) Act, 1994 (in short, ‘the Act’), it is submitted by Mr. Pradhan, learned counsel that the election petition was filed by opposite party No.3 impleading opposite party Nos. 1, 2 & 4, which is contrary to the Act since opposite party No.4 secured 511 votes, which is less than the votes polled by opposite party No.3. It is further submitted that opposite party No.3 relied upon the RTI information obtained via e-mail, which was accepted by the learned Trial Court as it is not permissible in view of Section 6(1) of the RTI Act, 2000 read with Rule 4(1) of the Odisha RTI Rules, 2005 and in accordance with Form-A i.e. Annexure-7 to the rejoinder of the petitioner as any such information is to be furnished either by hand or received by Post. It is contended by Mr. Pradhan, learned counsel that the information obtained through RTI Act in such manner has been placed reliance on being provided by opposite party No.3 alleging the petitioner having four children at the time of filing of the nomination but no any certificate was appended to the same as required as per Section 65B of the Indian Evidence Act, which is mandatory in view of the judgment of the Apex Court in Anvar P.V. Vrs. P.K. Basheer & others (2014)10 SCC 473 . The further contention is that the result and election of the petitioner declared as void is contrary to the statutory law since decision of the Apex Court in Ravi Yashwant Bhoir Vrs. District Collector, Raigad & others (2012) 4 SCC 407 as the information could not have received as evidence in the

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manner contemplated under law. According to Mr. Pradhan, learned counsel, the learned Courts below ought not to have declared the election of the petitioner invalid disqualifying her as the Sarpanch of the G.P. leading to the creation of casual vacancy and to conduct fresh election.

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8 . On the contrary, Mr. Dash, learned counsel for the opposite party No.3 would submit that there has been no illegality committed by the learned courts below and rightly, therefore, the election of the petitioner has been declared void. It is further submitted that the petitioner is having more than two children born after the cut-off date, which invited her disqualification and considering the evidence received, the learned Trial Court concluded that such election is invalid, hence, it was followed by the order of disqualification finally confirmed in appeal, which is perfectly justified and according to law.

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9 . Mr. Ray, learned AGA for the State would submit that the impugned judgment at Annexure-6 upholding the decision of learned Civil Judge (Junior Division), Mohana in Election Petition No. 06 of 2022 does not suffer from any legal infirmity for the reason that the petitioner is having more than two children born after the commencement of the Amendment Act and since such was the position, as on the date of the nomination, upon receiving clear evidence in that regard, the disqualification was followed and upheld by the learned District Judge, Paralakhemundi, Gajapati in appeal.

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10 . In so far as the counter affidavit of opposite party No.3 is concerned, it is pleaded that the learned Court below correctly appreciated the evidence to reach at the conclusion declaring the election of the petitioner as invalid. It has been denied therein by opposite party No. 3 with the pleading that no objection was raised at the time of nomination alleging disqualification of the petitioner. It is also pleaded that the petitioner having more than two children born after the cutoff date was proved after obtaining information under the RTI Act and since that invites disqualification, the same has been declared accordingly in view of Section 25(1)(v) of the Act. That apart, opposite party No.3 pleaded that the Family Register maintained at the Anganwadi Centre carries evidentiary value for being maintained in regular course of business and that apart, no rebuttal evidence was produced, hence, the disqualification was duly proved. It is also pleaded that the documents obtained under the RTI Act, public reports and accessible information are utilized and in order to establish the date of birth of a child, Anganwadi Registers or School Admission Registers are received in evidence apart from the Birth Certificates issued as per the Registration of Birth and Deaths Act. With such pleading on record, opposite party No.3 justified the decision of the learned Court below for having confirmed disqualification of the petitioner by the learned Civil Judge, (Junior Division), Mohana.

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11 . Opposite party No.3 filed the election petition under Section 34 of the Odisha Grama Panchayats Act, 1964 (hereinafter referred to as ‘the Act’) seeking relief for

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declaring election of the petitioner as the Sarpanch of the concerned G.P. to be null and void in view of her disqualification under Section 25(1)(v) thereof for having more than two children born after the cut-off date and for a further declaration in terms of Section 34 of the Act. Referring to the Anganwadi Register and information supplied by the Anganwadi Centre on 10^th March, 2022 supplied under the RTI Act, the learned Courts below concluded that the petitioner stands disqualified. In fact, the learned Trial Court framed as many as seven issues with a primary question to be determined as to if the petitioner had more than two children born after the cut-off date or lapse of one year post-commencement of the Amendment Act, hence, her election as the Sarpanch to be void; and whether, opposite party No.3 is entitled to any such relief under Section 34 of the Act.

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12 . In course of hearing, learned Trial Court examined three witnesses from the side of opposite party No.3 and also received documentary evidence. The petitioner, on the other hand, examined seven witnesses but without any document being marked as exhibit. As far as the Anganwadi worker is concerned, she has been examined as P.W.1 and at the time of her examination, she produced the original Family Description Register having been supplied to them by the C.D.P.O., Mohana being the custodian of the same and it contained the family description of the petitioner. As per the said Register marked as Ext.1, it was revealed that the petitioner is having two sons and two daughters and the

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eldest of all is the daughter born on 9^th May, 2008 and the youngest of all, namely, Aditi Nayak’s date of birth as 27^th June, 2010 and in so far as the elder son is concerned, he was born on 8^th September, 2014 and the younger on 16^th November, 2018. The relevant entry with regard to the family description of the petitioner stood marked as Ext. 1/a besides the information received by e-mail by opposite party No.3 as Ext. 2, a copy of the description of the family members of the petitioner. The signature of opposite party No.3 on the RTI application has been marked as Ext. 2/a, subsequent to which, the e-mail was received by her. The said witness was cross-examined by the petitioner challenging her authority to officially certify the date of birth of a person. During such cross-examination, P.W.1 denied any alterations made to the birth dates of the children of the petitioner, when she was suggested about Ext.1 having corrections therein and about the relevant entry as erroneous.

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13 . The other witness is examined as P.W.2 is the Panchayat Executive Officer-cum-G.P.E.O., Mohana Block, who upon receiving a direction from the learned Trial Court produced the Original Status Sheet of the contesting candidates for the post of Sarpanch of the G.P. and proved the same as Ext. 3 with the signatures of the then BDO and PEO thereon as Exts. 3/a & 3/b respectively.

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13.1 . Opposite party No.3 examined as P.W.3 deposed that she and opposite party No.4 contested the election and scrutiny of the nomination paper was made on 22^nd January,

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2022 and at that time, she had objected the acceptance of nomination of the petitioner before the Election Officer alleging her inviting disqualification for being a mother of four children born after the cut-off date. The entire evidence was reproduced by the learned Trial Court and finally, considering the arguments advanced from both the sides concluded that the petitioner suffers from disqualification in view of Section 25(1)(v) of the Act as all her children were born after 1994.

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13.2 . The relevancy and admissibility of the Family Description Register as evidence was examined by the learned Trial Court with a conclusion that the same is permissible in view of Section 35 of the Indian Evidence Act. By dismissing such other grounds pleaded by the petitioner, the learned Trial Court ultimately was of the view that she did invite disqualification under Section 25(1)(v) of the Act. So, therefore, the learned Trial Court finally concluded that the election of the petitioner is to be declared void for the disqualification proved and established and directed fresh election to fill up the post of Sarpanch of the G.P.

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14 . Considering the evidence received during trial and the fact that not only information under the RTI Act was received but also such other evidence and when the decision has been based on the family details upon production of the original Family Description Registers, the Court is of the humble view that the learned Civil Judge (Junior Division), Mohana did not commit error or illegality in declaring

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disqualification of the petitioner. The documentary evidence received from the side of opposite party No.3 is admissible in view of Section 35 of the Indian Evidence Act. It is not that the information via e-mail received by opposite party No.3 was the sole consideration to declare the petitioner’s election as invalid. The Court rather finds no reason or any justification to differ with the view expressed by the learned Trial Court and also the learned Court below. The entire evidence has been re-appreciated by the learned District Judge, Gajapati, Paralakhemundi and at the end, upheld the disqualification of the petitioner. Referring to Exts. 1 & 2, it has been held by the learned Court below that the petitioner’s disqualification is certain for the reason that she is having more than two children born after the cut-off date. In fact, the petitioner, in course of her cross-examination as O.P.W.1, admitted the names of the person being her in-laws, when confronted. The family description and other details produced before the learned Trial Court clearly suggest that the petitioner is having four children born after the cut-off date and it has been clearly established through Ext.1 and Ext.2. In so far as, the information supplied to opposite party No.3 is concerned, it has been under the RTI Act and coupled with the evidence produced before the learned Trial Court with the examination of P.W. 1, it has been established beyond doubt that the petitioner was having more than two children born after the cut-off date.

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15 . The Anganwadi worker, namely, P.W.1 proved the concerned Register as Ext.1 admissible under Section 35 of

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the Indian Evidence Act. The source of information of Ext.2 is from the Register maintained at the Anganwadi Centre. Such Registers are maintained at the Anganwadi Centre in regular course of business. It is also a fact that the entries in the Register made in regular course of business. When such evidence is produced, the learned Courts below referring to Section 35 of the Indian Evidence Act rightly held it to be admissible.

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16 . In fact, the learned Trial Court has taken judicial notice of the decision of this Court in Dhaneswar Mallick Vrs. Narayan Behera and another 2006 (I) OLR 132 , while accepting Ext.1 as admissible evidence, with the view that the Anganwadi workers, though, not public servants, are enjoined to make entries in the Family Survey Register after conducting door-to-door visits carried out, which, according this Court, is a correct conclusion to arrive at since Section 35 of the Indian Evidence Act includes such entries of the record, which any person in performance of duties is specifically commanded by law.

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17 . The disqualification of the petitioner for having more than two children after the cut-off date in view of Section 25(1) (v) of the OGP Act has been substantiated by oral and documentary evidence received from opposite party No.3. While challenging such claim, except oral evidence, no any documents have been produced by the petitioner discrediting the authenticity of the relevant entries in Ext.1, rather, the evidence beyond pleading was received and was rightly

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rejected. In absence of any rebuttal evidence or any such contemporaneous document to disprove the fact that the petitioner is having no children born after the cut-off date, in view of the evidence received from opposite party No.3 through Exts. 1 & 2, the Court shall have to reach at the same conclusion upholding the decision of the learned Court below which in turn affirmed the findings of the learned Civil Judge (Junior Division), Mohana. Since, such disqualification was declared, as an inevitable consequence, for the creation of the vacancy as a result, the learned courts below rightly directed a fresh election to be held for the post of Sarpanch of the G.P. The Court does not find any error or illegality in such findings and in concluding that the petitioner suffers from disqualification under Section 25(1)(v) of the Act hence, a fresh election to be held in terms of Section 40 thereof.

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18 . In so far as the evidentiary value with reference to Section 65B of the Indian Evidence Act is concerned, the contention of Mr. Pradhan, learned counsel for the petitioner with such a plea is entirely misconceived as there has been no electronic record received in evidence, hence, the need for any certificate in compliance therewith. The above argument is based on the acceptability of Ext.2, which is just a copy of the family description maintained in record received via e- mail having been supplied in response to the application of opposite party No.3 under the RTI Act. The Court is of the view that any such plea referring to Section 65B of the Indian Evidence Act with a decision of the Apex Court in Anvar P.V. (supra) is totally misplaced. Likewise, the decision of

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the Apex Court in Ravi Yashwant Bhoir (supra) relied upon by Mr. Pradhan, learned counsel is inapplicable since therein the proof of electronic record received in evidence was in question highlighting upon the safeguards to be taken with all such measures to ensure the source and its authenticity. Therefore, the conclusion of the Court is that the above argument is also liable to be rejected.

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19 . Accordingly, it is ordered.

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20 . In the result, the writ petition stands dismissed. As a necessary corollary, the interim order in I.A. No. 93 of 2025 dated 13^th January, 2025 is hereby vacated as a result.

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(R.K. Pattanaik) Judge

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Kabita

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Signature Not Verified

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Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, Cuttack Date: 20-Nov-2025 11:03:16

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Saraswati Mallick v. State of Odisha

Case brief

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Saraswati Mallick v. State of Odisha

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