JUDGMENT
P.K. Tripathy, J.
1. The writ petitioner and opposite party No. 1 are respectively the defeated and successful candidates in the election to the post of Chairman of G. Udayagiri Block in the district of Kandhamal (Phulbani). Petitioner filed Misc. Judicial Case (Election) No. 20 of 2002 in the Court of Civil Judge (Sr. Division)-cum-Election Commissioner, Balliguda to set aside the Election of opposite party No. 1 as the Chairman of the Panchayat Samiti and also to declare her (petitioner) as elected Chairman of the said Panchayat Samiti, Learned Civil Judge by Judgement dated 31.10. 2003 allowed that Misc. Judicial Case in part by setting aside the election of Opposite party No. 1 as Member of Panchayat Samiti from Malikpadi Grama Panchayat and consequentially as the Chairman of G. Udayagiri Block but notified a casual vacancy as a consequence of that order. As against that order, opposite party No. 1 preferred Election Appeal No. 16 of 2003 and the petitioner preferred Election Appeal No. 1 7 of 2003 in the court of the District Judge. Phulbani. Opposite party No. 1 challenged to the decision of the Civil Judge by which she was found disqualified on the ground of having three children. Petitioner prayed to declare her as elected in place of descated opposite party No. 1. Learned District Judge heard argument of both the appeals on the same date and delivered separate Judgements in the appeals on 8.7.2004. It would have been appropriate for Learned District Judge to hear both the appeals analogously and dispose of the same by a common judgement when the parties are same and dispute is same.
2. Petitioner has filed W.P.(C) No. 7707 of 2004 challenging to the Judgement in Election Appeal No. 16 of 2003 (which was field by opposite party No. 1) and W.P.(C) No. 7706 of 2004 challenging to the Judgement passed in Election Appeal No. 17 of 2003 (in which she was the appellant). Both the cases were taken up for hearing analogously and are disposed of by this common judgement.
3. Various facts and incidents and filing of previous writ petitions before this Court have been stated either in the pleadings or the Judgements of the Courts below, but such history is not relevant for the purpose of deciding and disposing of the writ petitioners; therefore, it will suffice to note only the relevant facts. Opposite party No. 1 was elected as Panchayat Samiti Member of Malikpada Grama Panchayat. It was alleged by the petitioner in the Election petition that her nomination paper was opposed by the rival contesting candidates, but the Election Officer rejected such objections and permitted opposite party No. 1 to contest for the post of Panchayat Samiti Member and in that election she got elected. Her election was challenged on the ground that she was having three children by the cut off date and was disqualified to contest the post of Panchayat Samiti Member. On 11.3.2002 Petitioner and opposite party No. 1 field their respective nomination papers for the post of Chairman of the Block. Petitioner raised objection to the nomination of opposite party No. 1 on similar ground, but such objection was overruled and opposite party No. 1 was permitted to contest. In course of that election held on 13.3.2002, as alleged by the petitioner, opposite party No. 1 resorted to booth capturing and keeping some Panchayat Samiti Members in confinement before the election and that is how she secured the highest vote and was declared elected as the Chairman. Petitioner challenged that election in O.J.C, No. 3125 of 2002 and, as per the observation of this Court in the order dated 3.5.2002, she filed Election Dispute under Section 44-A of the Orissa Panchayat Samiti Act, 1959. (in short ‘the Act’). In that petition she reiterated the aforesaid grounds and stated that the first and third were the male children and the second was a female child of opposite party No. 1 and that she said three children were born on 20.1.1995, 7.4.1997 and 27.1. 2001. She also pleaded that opposite party No. 1 has-alias name of Renuma. Opposite party No. 1 denied to all the aforesaid allegations and stated that she married in 1996 and, therefore, the allegation of begetting the male child on 20.1.1995 is false. She claimed to be mother of the female child born on 7.4. 1997 and no other child or children: She denied to the allegation of both, capturing and all other allegations in the Election petition. She also pleaded that Runuma is not her alias name and such a plea has been imported to harass her. She challenged to maintainability of the petition under Section 44-A of the Act alleged suppression of material facts relating to the other litigations instituted by the petitioner and proceeding being barred by law of limitation. The Block Development Officer and the Collector being the Election Officers at respective levels were added as opposite party Nos. 2 and 3 in the election dispute. They filed their objections denying to the allegation of booth capturing and regarding raising of any valid protest with due substantiation thereof. They also challenged to maintainability of the proceeding as well as the ground of limitation.
4. In support of their respective pleas, both the parties adduced oral and documentary evidence. On assessment of such evidence Learned Civil Judge found that in view of the ratio in the case of Suresh Kumar Azad v. State of Orissa and Ors. 1993 (I) OLR 563, the proceeding under Section 44-A of the Act is maintainable even while challenging the Election of a person. to the post of Chairman. In view of the observation of this Court, while disposing of the Misc. petition of the petitioner and the evidence of the petitioner explaining the delay, Learned Civil Judge found sufficient cause to condone the delay and accordingly held that the election petition was not liable to be dismissed on the ground of limitation. Learned Civil Judge referred to the evidence and in view of the entry in the Admission Register (Exts. 1 and 2) and the Certificates of Birth (Ext. 3 to 6) and the oral evidence of the witnesses, he was of the opinion that opposite party No. 1 has not been able to prove that she was a spinster by 20.1.1995 and that the voter list (Ext. A) is not sufficient to warrant such a presumption in her favour though there is some evidence to indicate that there is one Renuma Pradhan; but non-cross-examination of O.P.W. No. 3 and no convincing evidence coming from the side of opposite party No. 1 together with appropriate plea in a counter filed, it cannot be said that husband of opposite party No. 1 had another wife named Runuma. Since the P.Ws. deposed that opposite party No. 1 is the mother of those children, the same is acceptable, because such persons are resident of neighbouring village and are reliable. The allegation of booth capturing at the time of election of Chairman remained not proved. On the basis of such findings Learned Civil Judge disqualified the petitioner to hold the post of Member of the Panchayat Samiti and consequently the post of Chairman of the Panchayat Samiti. He found a causal vacancy of Samiti Member from Malikpada Grama Panchayat and accordingly directed for election of the Panchayat Samiti Member of that Grama Panchayat and also fresh election to the post of Chairman of G. Udaygiri Block.
5. As mentioned at the outset, opposite party No;1 and the petitioner preferred their respective appeals before the District Judge, Phulbani challenging to the Judgement of Learned Civil Judge. So far as the appeal of opposite party No. 1 is concerned, Learned District Judge decided that, on the given facts and evidence on record the burden of proof was on the petitioner with regard to allegation of opposite party No. 1 having three children. Since that contention of the petitioner was accepted by Learned Civil Judge by throwing the burden of proof on opposite party No. 1 and in that respect the evidence from the side the petitioner is not sufficient to prove such a plea, therefore, Learned District Judge set aside the order of disqualification of opposite party No. 1 to the post of Panchayat Samiti Member as well as to the post of Chairman. Accordingly, he allowed that appeal. Consequentially he dismissed the appeal filed by the petitioner to declare her elected as the Chairman.
6. In course of submission, petitioner prayed to set aside the findings of Learned District Judge on the issue of three children and accordingly to set aside the impugned Judgement of Learned District Judge with the prayer to declare the petitioner as the elected Chairman. Opposite party No. 1 on the other hand supported the findings recorded by Learned District Judge and prayed to dismiss both the writ petitions. It is noted in the impugned judgements about series of writ petitions, which were filed so also Election dispute vide Misc. Case No. 5 of 2002 by the petitioner before the District Judge in accordance with the provision under Section 45-B of the Act. It reveals from that narration of fact that this Court declined to consider the case of the petitioner in exercise of the jurisdiction under Article 226 of the Constitution. Therefore, essentially the dispute is to be considered in accordance with the provision in Article 227 of the Constitution of India. It is the settled position of Law that while exercising the supervisory jurisdiction under Article 227, this Court is not to act as the Appellate Court to reassess the evidence in support or against a particular finding unless there is perversity in recording such findings by the Courts below or in the process of recording the findings the Courts below committed illegality which materially affects the rights of the petitioner. Remaining alive to that legal position, we consider the submission in support of and against the claim of the petitioner.
7. For the sake of clarity it is indicated here that the other grounds taken in the election petition and the decisions thereof by the Court below being not under challenge, we do not deal with that aspect.
8. The view expressed by the trial court in shifting the burden to opposite party No. 1 to prove that she was not mother of three children appears to be not in conformity with the provision in Sections 101 and 102 of the Indian Evidence Act. In that respect if evidence from the side of the petitioner would have given rise to a presumption that opposite party No. 1 was the mother of three children, then only opposite party No. 1 was required to give the rebuttal evidence on the relevant issue. In such a case there would have been shifting of burden/onus. The fact and evidence on record discussed by the trial court did not lead to such a sequence. Therefore, approach of Learned District Judge on the issue of three children and in disbelieving the case of the petitioner cannot be faulted with. Under such circumstance the impugned Judgement of Learned District Judge does not suffer from any illegality or perversity. Once that is so, the prayer of the petitioner to declare her elected on setting aside the election of opposite party No. 1 to the post of Chairman becomes redundant. For the said reason we do not find any merit in both the writ petitions. Accordingly, both the writ petitions are dismissed. Under the given facts and circumstances, we direct the parties to bear their respective cost of litigation.