Orissa High Court
Rabindra Kumar Das vs State Of Orissa And Ors. on 18 February, 2000
Equivalent citations: 2000(I)OLR463
Author: Pradipta Ray
Bench: Pradipta Ray, L. Mohapatra
JUDGMENT Pradipta Ray, J.
1. The writ petitioner has filed this writ petition as a public interest litigation alleging that the opp. party No. 4 Sadasiva Barisal, a Sarpanch of Pangarisingha Grama Panchayat is disqualified to hold the post of Sarpanch of the Grama Panchayat as he was more than 3 children. His grievance is that although the attention of the appropriate authority has been drawn to the said disqualification of opp. party No. 4, he has not taken any step to enquire into the said allegation and to declare opp. party No. 4 as disqualified to hold the post of Sarpanch.
2. The opp. party No. 4 has entered appearance, but has not filed any counter disputing the allegations contained in the writ petition. Dr. Tripathy, learned Advocate appearing for the opp. party No. 4 has, however, raised an objection that such allegation of incurring disqualification can be decided only in an election dispute particularly when the alleged disqualification came into existence before the election. In support of his submission Dr. Tripathy cited two decisions of this Court, namely. Maheswar Tripathy v. State of Orissa and Ors. [7992 (II) OLR 90] and Baneswar Biswal v. State Election Commissioner, Orissa and Ors. [1997 (I) OLR 310]
3. Opp. party No. 3, the Block Development Officer, Begunia, has filed a counter in which it has been stated that .opp, party No. 4 has got three living children and the third child was born on November 3. 1995. But it has also been asserted in the counter by him; that opp. party No. 4 selection can be declared null and void only by the competent Civil Court as provided in the Act.
4. The disqualification specified in Section 25(1)(u) and (v) of the Orissa Grama Panchayat Act (hereinafter referred to as the 'Act') have been inserted by amendment of Section 25 with effect from April, 1.8.1994. Consequently Section 25(2)(a) of the Act was also amended with effect from the said date. The relevant portions of Section 25(1) and (2) of the Act are quoted below :
"25. Disqualification for membership of Grama Panchayat -
(1) A person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he -
(a) 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 Panchayat (Amendment) Act, 1 994 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.
(2) A Sarpanch or any other member of a Grama Panchayat shall be disqualified to continue and shall cease to be a member if he -
(a) incurs any of the disqualifications specified in Clauses (a) to (j) (Clauses (m) to (p) and Clauses (t) to (v) of Sub-section (I); or Section 26 of the Act has laid down the procedure for giving effect of the disqualifications, Section 26, Sub-section (1) and (2) are quoted below :
"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 motu or 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) xx xx xx"
4. Section 25( 1) of the Act relates to election and nomination. At the stage of nomination or election one can raise the question of disqualification of a particular person for being nominated or elected as a Sarpanch or a Member of the Grama Panchayat and if any person who has filed nomination in the same election wants to challenge the acceptance of nomination or election of the alleged disqualified person, he is required to file an election petition before the forum prescribed Under Section 35 of the Act. Section 25(2) makes it clear that a Sarpanch or a Member of a Grama Panchayat incurring any of the disqualifications specified in Clauses (a) to (j), (m) to (p) and (t) to (v) has no right to continue and he will cease to be a member. Thus, even after election at each point of time a Sarpanch or a member of a Grama Panchayat is to be free from any of the disqualifications as specified in the clauses mentioned in Section. 25(2)(a) of the Act. A dispute relating to the election and dispute alleging that an elected Sarpanch or a member of the Grama Panchayat is disqualified to continue as such are different. For the purpose of determining the dispute raised Under Section 25(2) the procedure has been laid down in Section 26. Under Section 25(2) read with Section 26 of the act, the Collector will see whether a Sarpanch or member of the Grama Panchayat is having any disqualification at the time when the enquiry is being made. The Collector cannot enquire whether the election was valid or not or whether the Sarpanch or the member was disqualified to be nominated or elected, but he has the authority to determine whether at the time of determination by him the Sarpanch or the member is having any disqualification or not. An illustration will make it clear. 'A' having more than two children got elected to the office of the Sarpanch. His election was not challenged. One year after the election one person raised the question of his disqualification.' In the meantime one of the children of the elected Sarpanch died. Although he was disqualified to be elected at the time of election, but when the Collector was making an enquiry for the purpose of Section 25(2) and Section 26 of the Act, his disqualification had disappeared and accordingly, the Collector in exercise of his power Under Section 26 of the Act cannot declare him to be disqualified to continue. If there was an election petition challenging the election then the competent Civil Court could have declared the election void in spite of the fact that subsequently after the election one of the children died. Thus, the Collector is competent and has been empowered to determine whether a Sarpanch or the member of the Grama Panchayat is disqualified at the time of enquiry to continue as Sarpanch or as a member.
5. Under Section 32 of the Act an election petition can be presented only by a person who has filed nomination in the election. Thus, no person other than a person who has filed nomination in the same election can present an election dispute. In the present case the petitioner did not file any nomination in the election and accordingly he had no right to file any election petition challenging the election. His remedy is only Under Section 25(2) read with Section 26 of the Act.
6. The decisions cited by Dr. Tripathy have no considered the question involved in the present writ petition. In Maheswar's case challenge was to improper acceptance or improper rejection of nomination papers. In Baneswar Biswal's case also legality of acceptance of nomination paper was questioned. The disputes raised in those two cases were under Sub-section (1) of Section 25 of the Act and in that context it was decided that such dispute should be raised in election petition.
7. It has been stated by the opp. party No. 3 in his counter that the writ-petitioner has not submitted any representation as alleged at all. The opp. party No. 3, however, stated in his counter that after receipt of the notice of the present writ petition the opp. party No. 3 himself made an enquiry and he was informed by the Medical Officer, Community Health Centre, Sotalma by letters (Annexures A/3, & B/3) that the Opp. party No. 4 was blessed with three children and the last one was born on November 3, 1995. Section 26 of the Act imposes a duty upon the Collector to make an enquiry even suo motu if he receives any information and is prima facie .satisfied that there is a case to be enquired into. In the present case when opp. party No. 3 himself states that the opp. party No. 4 was blessed with three children, it is his duty to draw the attention of the Collector to the said information so that the Collector may exercise his jurisdiction suo motu Under Section 26(2) of the Act. The stand taken by opp. party No. 3 in the counter is contrary to the Scheme and purpose of the Act.
8. For the foregoing reasons, we dispose of this writ petition by directing the Collector to treat this writ petition and the counter filed by opp. party No. 3 as information relating to disqualification of opp. party No. 4 and to proceed under Sub-section (2) of Section 26 of the Act to make enquiry and to take appropriate decision in accordance with law. The exercise should be completed within two months from the date of communication of this order.
L. Mohapatra, J.
9. I agree.