M.M. DAS, J. - (1.) THE petitioner was declared elected as Sarpanch of Kayan Grama Panchayat on 22.2.2007. THE opp. party no. 1 filed Election Misc. Case No. 37 of 2007 challenging the election of the petitioner before the learned Civil Judge (Jr. Division)-cum- Election Tribunal, Jajpur. THE sole ground taken in the election petition was that the petitioner was not eligible to contest the election to the post of Sarpanch, she being unable to read and write Oriya, which is one of the qualification clauses, asprescribed in section 11 (b) of the Orissa Grama Panchayat Act,1964 (for short, 'the Act'). THE petitioner after appearing in thesaid election dispute filed a written statement, inter alia, denyingthe allegations made by the opp. party no. 1. THE learnedElection Tribunal framed as many as five issues and issue no. 3was framed with regard to the question as to whether thepetitioner, on the date of filing of the nomination paper, was ableto read and write Oriya.
(2.) DURING the course of hearing, the petitionerexhibited the book "CHHABILA BARNOBODH" as Ext. A and ajob card issued by her under her signature as Ext. B. Thepetitioner was examined as O.P.W.1 in the Election Misc. Case.In her evidence, she stated that she is able to read and writeOriya. In the examination-in-chief, she read some pages of"CHHABILA BARNOBODH" vide Ext. A and also stated that shewas reading in CHATA SALI during her childhood. As, in thecross-examination, she stated that she can read Orissa GramaPanchayat Act in Oriya, she was asked to read sections 147 and148 of the Orissa Grama Panchayat Act (Oriya Edition). Thelearned Election Tribunal recorded what she read in verbatimand found that it contains several mistakes. In the cross-examination, she was asked by the learned counsel for the election petitioner to write in Oriya. The words dictated by himare, i.e., "SMRUTISIGNDHA SANDHIBIGRHA", "SAURASTRADESA RA EKA SAMBRUDHA ANCHAL", 'DOCTOR GARDENBROWN BARTAMANA BRITISH PRADHAN MANTRI',TRUPTIMAYEE PANIGRAHI. SAMPRATI CHICKEN GUNIA EKAMARATMAKA ROGA', "AHEE GHATANA BHARATRA DRUSTI,NASA, KARNA, BISE SANGYA MANAKU UDBIGHNA KARICHI".The learned Election Tribunal finding that there are number ofmistakes in the writing of the petitioner (opp. party no. 1 in thecourt below) to the dictation of the learned counsel for theelection petitioner (opp. party no.1 herein), concluded that thepetitioner did not know how to read and write Oriya and,therefore, was not eligible to contest the election. An appeal was carried by the petitioner againstthe judgment of the learned Election Tribunal before the learnedDistrict Judge, Cuttack in Election Appeal No. 11 of 2008. Thelearned District Judge concluding that the specimen writings ofthe appellant (petitioner herein) taken in presence of thePresiding Officer do not make any sense at all, confirmed thejudgment passed by the learned Election Tribunal. Mr. Mishra, learned counsel for the petitionercontended that it is a well settled principle of law that to avoid anelection, it is necessary to lead cogent evidence in support of the charge and an election cannot be set aside on presumption,surmises or conjectures. Clear and cogent proof in support of theallegation is essential (See Uma Ballava Rath v. MoheswarMohanty and others, 88 (1999) CLT 329 (S.C.) He furthercontended that the portions dictated to the petitioner in courtcontained complex sentences and "YUKTAKHYARA" which even astudent having minor qualification in Oriya could not havecorrectly written and in all probability would have committedmistakes. He also relied upon the judgment dated 22.6.2009 ofthis Court rendered in W.P. (C) No. 19747 of 2008 (KalabatiJena v. Dhaneswar Jena and three others) in support of hiscontention that this Court has clearly laid down that when thereis no minimum standard prescribed in the Grama Panchayat Act,the disqualification clause cannot be strictly construed. Learned counsel for the opp. party no. 1, on thecontrary, relied upon the decisions in the case of Mrs.Suryakanti Mishra v. State of Orissa and seven others, 2005(Supp.) OLR 906 in support of his contention that a DivisionBench of this Court has laid down that a candidate would standdisqualified if he/she is unable to read and write Oriya and eventhough the said disqualification clause does not speak abouteducational qualification of a candidate, it signifies that a personhaving no academic qualification is not eligible to stand for election of the Grama Panchayat if he/she is unable to read andwrite Oriya. The corollary being, even if, a person has educationalqualification, but unable to read and write Oriya, he/she is noteligible to stand for election. According the learned counsel, thepetitioner was a total novice in reading and writing Oriya and,therefore, the learned courts below have correctly come to theconclusion that the petitioner was ineligible to contest theelection and have declared her election to be invalid. He,therefore, submitted that this Court should not re-appreciate theevidence in a writ petition to come to a different conclusion whenthe writ is in the nature of certiorari. In the case of Mrs. Suryakanti Mishra (supra), itappears that the petitioner therein, who was elected as theSarpanch in her cross-examination candidly admitted that shewas unable to read and write Oriya, which is contrary to thefacts of the present case. This Court, taking into considerationsuch admission concluded that the petitioner therein was noteligible to contest the election. In the case of Kalabati Jena (supra), this Courthad the occasion to deal with section 11 (b) of the Act andinterpreting the same, it was held as follows:- "The phrase "Read and Write Oriya" has neither been defined in the Orissa Grama Panchayat Act nor in the Election Rules framed thereunder. It is, therefore, incumbent on the part of the court to interpret the said phrase keeping in view the legislative intent for introducing such a disqualification clause in case of Sarpanch and Naib - Sarpanch inasmuch as to find out the object to be achieved by such introduction of the disqualification clause. A person, who can to some extent, read and write Oriya, cannot be said to be unable to read and write Oriya. The standard of reading and writing Oriya having not been specifically provided in the Act and the Rules, the court cannot introduce a minimum standard of a candidate with regard to reading and writing Oriya. It is a common knowledge that even a candidate who has passed Oriya in Matriculation (H.S.C.) may commit various mistakes in writing his answers in Oriya. However, from the same, it cannot be concluded that such candidate does not know how to write in Oriya. Thus, the only interpretation of the phrase "Read and Write Oriya" can be that the candidate should not be illiterate and should at least know how to read and how to write Oriya as a language to a standard as would be required for a person to function as a Sarpanch or a Naib- Sarpanch of a Grama Panchayat. In the instant case, the matter, which was provided to the writ petitioner, was a portion of the O.G.P. Manual written in Oriya for reading the same before the Election Tribunal. A portion from the said book was also dictated to her by the Bench Clerk of the court. The court has found that the petitioner read the portion with much difficulty and in writing she committed several mistakes. It is a common knowledge that legal terms in Oriya are unique and an inhabitant of a Grama, who is otherwise eligible to contest the election for the seat of a Naib - Sarpanch or Sarpanch, can never be used to such terms........." Thus, considering the decisions of this Court inthe cases of Mrs. Suryakanti Mishra (supra) and Kalabati Jena(supra), it is abundantly clear that no hard and fast rule can beprescribed for finding out as to whether, a person, who was acontestant in the Grama Panchayat election knows how to read and write Oriya or not. Such conclusion should be drawn fromthe analysis of facts of each case. No doubt, this Court whileexercising jurisdiction under Article 226 of the Constitution in awrit of certiorari is not to re-appreciate the evidence on records.But, however, if it is found that the conclusion drawn by theauthorities/courts below are based on surmises and conjectures,this Court can quash such order or orders. Considering the facts of the present case, thisCourt finds that in the facts of this case, it is not correct toconclude that the petitioner did not know how to read and writeOriya. It is true that the petitioner while reading "CHHABILABARNOBODH" did not make any mistake and she committedsome mistakes while reading the provisions of the Orissa GramaPanchayat Act (Oriya Edition) which she was asked to read andshe committed some mistakes while reading the portions dictatedto her by the learned counsel for the opp. party no. 1 in the courtbelow. The portion dictated to the petitioner as quotedherein above contained "Yuktakhyaras" and though a person saidto be knowing how to read Oriya should be able to write alsoYuktakhyaras, but it appears that the above quoted portion waspurposely dictated to her which contained difficult conjunction ofletters. Hence, this Court finds that the conclusion of the learned courts below that the petitioner did not know how to read andwrite Oriya is based on surmises and conjectures and as hasbeen laid down by the Hon'ble Supreme Court, on suchmaterials, a duly elected candidate should not be dislodge fromthe seat to which he/she has been elected. In the result, therefore, both the impugnedjudgments under Annexures - 2 and 1 passed by the learnedElection Tribunal and the learned District Judge respectively arequashed and the petitioner is directed to continue as theSarpanch of Kayan Grama Panchayat for the rest of the period ofher tenure. The writ petition is accordingly allowed. Thereshall be no order as to costs. ;