JUDGMENT
S.P. Talukdar, J.
1. This application under Article 227 of the Constitution is directed against the order 15th of January, 2006 passed by the learned Civil Judge, Junior Division, 3rd Court, Tamluk, Purba Medienipur in Misc. Case No. 2 of 2004. Grievance of the petitioner may be stated as follows.
2. The opposite party/plaintiff, Ram Gopal Manna filed application under Section 204 of the West Bengal Panchayat Act, 1973 against the petitioner/ defendant praying inter alia for a declaration that the election No. VIII, Kalaynpur Constituency of Kalyanpur Gram Panchayat is null and void. Plaintiff sought for cancellation of the membership of opposite party No. 1 and further for permanent injunction restraining the opposite party No. 1 from claiming himself to be an elected member of the Panchayat.
3. Such application was registered as Misc. No. 2 of 2004. The present petitioner contested the said misc. case filing written statement thereby denying inter alia all material allegations made in the application. He claimed that he was born as on 3rd of January, 1981 and this was duly recorded in the Admission Register of Rangametiya Uchya Primary Vidyalaya where he got his primary education. Thus, on the date of scrutiny, the petitioner was 22 years, 3 months and 15 days. This was also indicated in the electoral roll. Plaintiff did not raise any objection before publication of the electoral roll. Plea was also taken that since electoral roll was published by the Election Commission, the said authorities are required to be made parties. The learned Trial Court having taken into consideration all relevant facts and circumstances by the impugned order allowed the said application in part and thereby declared the election of the O. P. No. 1 before it as a member of Kalyanpur Gram Panchayat from VIII, Kalyanpur Constituency as void.
4. Learned Counsel for the petitioner while assailing the said order submitted that the learned Court failed to appreciate the matter in its proper perspective and there had been manifest illegal exercise of jurisdiction by the learned Trial Court.
5. It appears from the materials available on record that under the Panchayat Act and the rules thereunder, the candidate intending to contest in the Panchayat Election, must have attained the age of 21 years on the date of scrutiny of the nomination papers. Non-fulfilment of the conditions imposed therein renders disqualification under Section 8(1) of the said Act. It appears that objection was raised at the time of scrutiny of the nomination paper but to no avail. After completion of the election process, it could be learned that the O. P. No. 1 was an examine of Madhyamik Examination in 1999 from Karak High School and he passed the said examination in second division. In his Admit Card, the date of birth is recorded as 13.11.89 which shows that on the date of scrutiny of the nomination papers, he was just 19 years, 5 months, 6 days.
6. In connection with the proceeding before the learned Trial Court, the O.P. No. 1/plaintiff adduced evidence in support of his case. His evidence was sought to be corroborated by three other witnesses. Some documentary evidences were also placed before the learned Court which include the registration certificate and others. In response to this, some witnesses including the petitioner/O. P. No. 1 were examined. Evidence of the present petitioner, who was examined as O. C.W. No. 1, was corroborated by two other witnesses. Such oral evidence also derives support from documentary documents placed before the learned Court. Learned Trial Court upon the pleadings framed as many as four issues and by the order under challenge, disposed of the said application under Section 204 of the Panchayat Act.
7. As indicated earlier, three witnesses were examined before the learned Trial Court on behalf of the petitioner including himself. A number of documents which include attested copy of form No. R-3 of the West Bengal Board of Secondary Education in respect of Registration Code No. 05634 of 1997-98 of Shri Joydev Das were marked exhibits. Some other documents were also exhibited on behalf of the plaintiff before the learned Trial Court. In response to the same, three witnesses including the opposite party No. 1 himself were examined. Certain documents like original Admission Register in the Rangametiya Prathamik Vidalaya and other documents were placed on behalf of the defendant.
8. Section 204 of the West Bengal Panchayat Act prescribes that if any dispute arises as to the validity of an election under the Act, any person entitled to vote at such election may, within thirty days after the date of declaration of the results of such election file a petition challenging such election before the learned Court of Civil Judge, Junior Division having territorial jurisdiction. Rule 74 of the West Bengal Panchayat (Election) Rules, 1974 was also referred to before the learned Trial Court.
9. At the time of hearing of the present application before this Court, it was specifically mentioned that Section 204 of the West Bengal Panchayat Act has since been repealed and as such, learned Court was not justified in entertaining the application.
10. The West Bengal Panchayat (Amendment) Act, 2003 is an Act to amend the West Bengal Panchayat Act, 1973. It was published in the Kolkata Gazette, Extraordinary, Part-III, No. 1163-L dated 14th July, 2003. By such amendment, Section 204 of the Municipal Act was omitted w.e.f. 14th of July, 2003. Then of course, question arises as to how far the grievance of the plaintiff before the learned Trial Court could be entertained under Rule 74 of the West Bengal Panchayat (Election) Rules, 1974. Thus, even assuming that the application under Section 204 of the West Bengal Panchayat Act, was not in force at the relevant time of approaching the learned Civil Court, there could be nothing wrong in maintaining the said application and dealing with the same as per Rule 74 of the West Bengal Panchayat (Election) Rules, 1974.
11. Mr. Haradhan Banerjee, learned Counsel for the petitioner referred the decision in the case of Birad Mal Singhvi v. Anand Purohit . This was in the context of the evidentiary value of the documents placed before the learned Trial Court. The Apex Court referring to such exhibits in connection with the case under reference held that the same are relevant and admissible but their evidentiary value is to be measured in the context of the evidence showing on whose information the date of birth of a person was recorded in the said documents. The Apex Court observed that an entry relating to date of birth made in the School Register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in School Register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. Mr. Banerjee submitted that the Courts have consistently held that the date of birth mentioned in the register of Secondary School Certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined.
12. In the case of Brij Mohan Singh v. Priya Brat Narain Sinha and Ors. , the Apex Court held that an entry of birth made in an official record maintained by an illiterate Chowkidar or, by somebody else at his request does not come within Section 34 of the Evidence Act. While dealing with an entry of date of birth in a School Admission register, it was held that in actual life it often happens that persons given false age of the boy at the time of admission to a school so that later in life he would have an advantage when seeking Public Service for which a minimum age for eligibility is often prescribed. The Apex Court observed that the Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the Court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive. In the case of Brij Mohan Singh (supra), an election was challenged on the ground that the elected candidate was below 25 years of age on the date of filing nomination paper and was, thus, disqualified under Article 137. It was held that the burden to prove that the age was below 25 years on the relevant date is on election petitioner.
13. Mr. Banerjee inviting attention of the Court to the decision in the case of Vashist Narain Sharma v. Dev Chandra and Ors. , submitted that it is duty on the part of the petitioner challenging the result of the alleged irregularity, the result of the election has been materially affected. The Apex Court in the said decision observed that the burden lies upon the objector.
14. In the context of a controversy raised in connection with an order of Election Tribunal, the Apex Court took the view that two conditions are required to be satisfied for an enquiry under Section 100(1)(c). Mr. Banerjee mentioned that it must first be shown that there had been improper reception or refusal of a vote or reception of any vote which is void or non-compliance with the provisions of the Constitution or of the Act or any rules or Orders made in the Act or of any other Act or rules relating to the election or any mistake in the use of the prescribed form. It is necessary to establish that as a consequence, the result of the election is matreially affected.
15. In the case of Hari Vishnu Kamath v. Ahmad Ishaque and Ors. , the Apex Court held that the two conditions are cumulative and must both be established, and the burden of establishing them is on the person who seeks to have an election set aside.
16. The aforesaid legal position derives further inspiration from the decision in the case of Samant N. Balakrishna v. George Fernandez and Ors. .
17. Mr. Banerjee referred to the documents which were placed before the learned Tribunal and in the said context submitted that admissibility of a document is one thing and its probative value quite another. These two aspects cannot be combined. Relying upon the decision in the case of State of Bihar and Ors. v. Radha Krishna Singh and Ors. , it was submitted that a document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.
18. On the other hand, Mr. Banerjee appearing as learned senior Counsel for the opposite parties submitted that the order impugned does not suffer from any jurisdictional error so as to justify any manner of interference. It was contended on behalf of the said opposite parties that Section 8 relates to disqualification of members of Gram Panchayat. A person shall not qualified to be a member of Gram Panchayat if he has not attained the age of 21 years on the date fixed for the scrutiny of nominations for any election. According to Mr. Banerjee, this leaves little scope for further controversy and the learned Court after due consideration of relevant materials available before it was satisfied that the present petitioner did not attain the said age of 21 years at the relevant time and this justified cancellation of his election. Mr. Banerjee further submitted that this Court in response to an application under Article 227 of the Constitution should not embark upon an enquiry nor it is desirable to examine the correctness of the approach made by the learned Trial Court while appreciating the materials.
19. On careful consideration of the impugned order it is found that the learned Court initially took into consideration the aspect relating to maintainability of the proceeding before it. The said point was decided in favour of the petitioner before the learned Trial Court.
20. The learned Court having taken into consideration the oral evidence as well as the documentary evidence placed before it was satisfied that the date of birth of the 0. P. No. 1 before it is 13.11.83. Thus, he did not attain the minimum age of 21 years on the date of scrutiny of the nomination papers, that is, on 19.04.03. This left the Court with no option but to declare the election of the said opposite party No. 1 before it as void.
21. After giving due regard to the submission made by learned Counsel for the parties, it appears that the main grievance of the present petitioner rests on alleged misappreciation of the evidence by the learned Trial Court. It follows from the discussion already made that while adjudicating upon any grievance over the result of an election, the Court has to proceed in a specific manner, if not following a prescribed route. Mr. Haradhan Banerjee, however, seems to be perfectly justified in submitting that this Court can very well intervene when approach made by the learned Trial Court is found to be manifestly wrong.
22. It is the settled principle of law that the jurisdiction under Article 227 of the Constitution is restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. This does not, however, mean to suggest that this Court is to remain indifferent even when it finds that wrong or improper approach has been made while coming to a finding of fact. The Apex Court in the case of K.K. Khaitan and Anr. v. Praveen Kumar Singh held that the failure to render the necessary findings to support the order would also be a jurisdiction error liable to correction.
23. In the present case, it cannot be denied that the learned Trial Court while declaring the result of the election of the petitioner void proceeded in a manner not permitted by law and the documentary evidence could not be assessed in the proper perspective.
24. Having regard to all such relevant facts and circumstances and in view of the discussion made earlier, this Court finds it difficult to brush aside the grievances of the petitioner. Thus, the present application being CO. No. 732 of 2006 be allowed and the impugned order dated 15.01.06 passed by the learned 3rd Court, Civil Judge, Junior Division, Tamluk, Purba Medinipur in Misc. Case No. 2 of 2004 be set aside.
25. Certified copies be supplied to the parties after due compliance with the procedural formalities as expeditiously as possible.
26. The application being CAN No. 8843 of 2006 thus, automatically, stands disposed of.