Orissa High Court
Ahalya Mangaraj vs State Of Orissa And Ors. on 3 July, 2006
Equivalent citations: 2006(II)OLR411
Author: I.M. Quddusi
Bench: I.M. Quddusi, N. Prusty
JUDGMENT I.M. Quddusi, J.
1. Heard Mr. Lalitencea Mishra, learned Counsel for the petitioner and learned Additional Government Advocate.
2. Perused the record produced by the learned Additional Government-Advocate.
3. This writ petition has been filed against the impugned order dated 3.4.2006 passed by the learned Collector, Kalahandi in G.P. Case No. 6 of 2005 under Section 25 of the Orissa Gram Panchayat Act (hereinafter referred to as 'the Act') disqualifying the petitioner to hold the post of Sarpanch of Chapriya G.P. in exercise of his power conferred upon him under Section 26 of the Act. The ground of disqualification of the petitioner has been indicated in the impugned order of the Collector that the petitioner has three living children.
4. At the outset, it is necessary to peruse the relevant provisions under Sections 25 and 26 of the Orissa Gram Panchayat Act, which are quoted hereunder:
Disqualification for membership of Grama Panchayat (1) a person shall be disqualified for being elected or nominated as a Sarpanch constituted under this Act, if he xxx xxx xxx xxx
(v) has more than two children Provided that the disqualification under Clause (v) shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayats (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year.
26. Procedure of giving effect to disqualifications-
(1) Whenever it is alleged that any Sarpanch or Naib-Sarpanch or any other member is or has become disqualified or whenever any such person is himself in doubt whether or not he is or has become so disqualified such person or any other member may, and the Sarpanch at the request of the Grama Panchayat shall, apply to the Collector for a decision on the allegation of doubt.
(2) The Collector may suo motuor on receipt of an application under Sub-Section (1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive.
(3) Whether the Collector decides that the Sarpanch, Naib-Sarpanch or any other member is or has become disqualified such decision shall be forthwith published by him on his notice-board and with effect from the date of such publication the Sarpanch, Naib Sarpanch or such other member, as the case may be, shall be deemed to have vacated office, and till the date of such publication he shall be entitled to act as if he was not disqualified.
The Clause V of Sub-section (1) of Section 25 was earlier in Orissa Gazette Extraordinary No. 426 dated 18.4.934 and substituted thereafter in Notification No.6139-I_egis dated 18.4.1994 with effect from date of notification.
5. On the basis of the letter No. 1121 dated 23.6.2005 of. O.I.C. General and Misc. Section, Collectorate, Kalahandi and basing on the complaint of some members of Chapriya G.P. alleging that the petitioner has three children and is not eligible to hold the post of Sarpanch, the Collector asked the Child Development Project Officer, Golamunda/District Panchayat Officer, Kalahandi vide his letter dated 1.8.2005 to inquire into the matter. The Child Development Project Officer, Golmunda, Kalahandi vide his letter dated 30.8.2005 submitted his report to the Officer in Charge, Judicial Section, Collectorate, Kalahandi. The said letter is reproduced below:
Letter No. 491 dt. 30.8.05 To The O.I.C., Judicial Section Collectorate, Kalahandi Sub :- Submission of enquiry report about the Children of Chapriya G.P. Ref :- Your letter No. 1485 dt. 10.8.05 Sir,
As per your letter No. 1485 dt. 10.8.05, I went to the village of Turechhada along with the concerned Sector Supervisor on 26.8.05 and enquired into the matter.
As reported by the Anganawadi Worker of Turechhada, the birth and death register is not available with her where the names of children were enter and the same register was eaten by the white ants.
In the register immunization and pre-school the names of the children of Smt. Ahalya Mangraj is found. The Xerox copy of register is enclosed herewith.
The present Sarpanch Smt. Ahalya Mangaraj has three children namely:
Date of Birth
1. Rinki Mangaraj 10.1.94
2. Pinki Mangaraj 17.12.94
3. Karisima Mangaraj 28.2.96 The report of the Anganawadi Worker of Turechhada is enclosed herewith for your kind information and necessary action.
Yours faithfully Encl: Sd/-
Xerox copy of immunization Child Dev. Project Officer Xerox copy of pre school register Golamunda Kid Original report of acknowledgement
6. A perusal of the above letter shows that the Child Development Project Officer, Golamunda had conducted an inquiry only to the extent of collection of relevant records and referred it to the Collectorate. Another report was sent by the District Panchayat Officer vide his Memo No. 1782 dated 14.11.2005, which is also reproduced hereunder:
Enquiry report on the G.P. Case No. 6/05- State v. Smt. Ahalya Mangaraj Sarpanch Chapriya G.P. As per memo No. 1485 dated 10.08.05 of O.I.C., Judicial Sec, the undersigned has conducted enquiry into the matter as detailed below:
1. As per the records available with the Anganwadi worker of Turechhada A.W. Centre Smt. Ahalaya Mangaraj, W/O of Sri Krushna Ch. Mangaraj has 3 living children as detailed below:
2. 1st child-Rinki Mangaraj-DOB 10.01.94 2nd child-Pinki Mangaraj DOB 17.12.94 3rd child-Karisma Mangaraj DOB 28.2.96 However during the enquiry Smt. Mangaraj has submitted a copy of the Court affidavit sworn before the Sub-Collector, Dharmagarhon 19.11.03. By virtue of this, name of Rinki Mangaraj (1st child) recording her mother name as Kasturi Mangaraj (1st wife of Krushna Ch. Mangaraj) instead of Ahalya Mangaraj.
Copy of all relevant documents are enclosed herewith for reference.
Sd/-
District Panchayat Officer Kalahandi.
Memo No. 1782/ G.P. Dt. 14.11.2005.
Copy forwarded to Officer-in-Charge, Judicial Sec., Collectorate, Kalahandi for information and necessary action with reference to his memo No.1485 dt. 10.8.05.
Sd/-
District Panchayat Officer Kalahandi.
7. On the basis of the above quoted two reports, i.e., of the CD.P.O. and D.P.O., the Collector without holding any inquiry started to hear arguments of the learned Counsel for the parties on 20.3.06. Thereafter the remaining arguments were heard on 27.3.06 and the impugned order was passed on 3.4.06.
8. Sub-section (2) of Section 26 of the Act (quoted above) provides that the Collector shall make such enquiry as he considers necessary and only after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person has become disqualified. In the instant matter there is nothing on record to show that at any point of time the Collector conducted inquiry. He, relying upon the letter of the Child Development Project Officer and District Panchayat Officer in part passed the impugned order. The Collector, in the impugned order, has shown the Date of Birth of three children as under:
1. 10.1.94
2. 17.12.94
3. 28.2.96
9. But the Birth certificate issued by the Registrar of Births and Deaths, P.H.C. Chapriya in the District of Kalahandi in a prescribed form, i.e. Form No. 9 under Rule 9 of the Rules made under the Registration of Births and Deaths Act, 1969. It appears that the name of the mother is mentioned as Ahalya Mangaraj in respect of the female child born on 18.1.2004 and a male child born on 21.2.96 but in respect of a female child born on 17.12.94, the name of mother has been mentioned as Smt. Kasturi Mangaraj, i.e. different to the instant petitioner. Further, on the record an affidavit of Shri Krushna Ch. Mangaraj, husband of the petitioner is available, in which it has been inter alia stated as under:
(1)That I have married-two wife, Kasturi Mangaraj (1st wife) & Ahalya Mangaraj (2nd wife) (2) That kumari Rinki Dei is my 2nd daughter through Kasturi Mangaraj (1st wife) born on dt 17.12.94.
(3) That Ahalya Mangaraj (2nd wife) have one son and one daughter born on 15.1.94 and 21.2.96 respectively.
10. Determination of disqualification can only be made by the Collector after an opportunity is given to the person concerned of being heard meaning thereby that no order prejudicial to a person can be made without giving him reasonable opportunity of being heard. That reasonable opportunity should be full and fair. In the case of Fazal Bhai Dhala v. Custodian-General Evacuee Property New Delhi and Anr. , the Apex Court has held that the custodian has also to allow a party either personally or through counsel, a reasonable opportunity of being heard and in suitable cases it may be property and necessary for the custodian to allow the party concerned even to adduce evidence. Since in the Orissa Grama Panchayats Act though procedure has been laid down to conduct an enquiry, therefore, it is necessary that the Collector by determining the disqualification to follow the principle of natural justice, the requirement of which is that the person concerned should be supplied with the material and the evidence which is to be used against him and he should be allowed to rebut evidence and to cross-examine the witnesses. In the case of Kuldeep Singh v. The Commissioner of Police and Ors. the Apex Court has held that reasonable opportunity means "hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them.
Principle of natural justice cannot be subjected to any straightjacket formula and it will vary from case to case, circumstance to circumstance and situation to situation. The genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the facts, which weigh with the Court in considering the effect of violation of principles of natural justice.
11. In the instant case, from the undisputed facts, it appears that the years of birth of two children have been shown within one year, i.e. in the year 1994. But it appears that the Collector has not paid any attention towards the same. Learned Counsel for the caveator has submitted that it may possibly be a premature child but that could be taken into consideration only when there would have been allegation to that effect.
12. Considering the facts and circumstances of the case, we are of the opinion that the impugned order passed by the Collector is not in consonance with Sub-Section (2) of Section 25 of the Act as no proper inquiry was conducted by the Collector and the petitioner was not granted any opportunity to defend her case. The Medical Certificate issued by the Registrar Births and Deaths, available on record are the public documents issued on the basis of Register, maintained under the Registration of Births and Deaths Act, 1969. Therefore, the documents cannot be disbelieved.
13. In view of the above-mentioned facts and circumstances, the writ petition is allowed. The impugned order dated 03.04.2005 passed by the Collector, Kalahandi in G.P. Case No. 6 of 2005 is quashed. No order as to cost.
14. However, it will be open for the Collector to conduct enquiry into the matter afresh and conclude the same, but only after affording reasonable opportunity to the petitioner to defend her case, in the light of the observation made above, in accordance with law.
N. Prusty, J.
15. I agree.