Orissa High Court
Jagdev Majhi vs State Of Odisha & Others on 3 September, 2021
Author: S.K. Mishra
Bench: S.K. Mishra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
Writ Appeal No.172 of 2019
An appeal challenging the order dated 09.04.2019 passed by the learned
Single Judge in W.P.(C) No.2924 of 2019
Jagdev Majhi .... Appellant
-versus-
State of Odisha & others .... Respondents
Advocates appeared in the case through Hybrid Mode:
For Appellant : Mr. Bibhuti Keshari Biswal
For Respondents : Addl. Government Advocate
(for respondents nos.1 and 2)
Mr. Samvit Mohanty and
Saswata Mohapatra, Advocates
(for respondent nos.3)
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
DATE OF HEARING:-31.03.2021 & 16.08.2021
DATE OF JUDGMENT:- 03.09.2021
S.K. Mishra, J.
. "Whether Collector of a district has jurisdiction under Section 26 (2) of the Odisha Grama Panchayat Act, 1964 Page 1 of 11 to decide the question of disqualification of a returned candidate for not having the requisite qualification under Section 11(a)(i) of the aforesaid Act for not having attained the minimum age of 21 years for the post of Sarpanch of a Grama Panchayat."
2. The above question arose in this intra-Court appeal. The appellant, being the petitioner before the Collector, Nuapada assails the correctness of order dated 09.04.2019 passed by the learned Single Judge in W.P.(C) No.2924 of 2019, wherein he set aside the order passed by the learned Collector, Nuapada in exercise of jurisdiction under Section 26, read with Section 11 (a)(i) of the Odisha Grama Panchayat Act, 1964, hereinafter referred to as 'Act' for brevity.
The respondent no.3 was elected as a Sarpanch of Saliha Grama Panchayat of Nuapada block on 27.02.2017. A petition under Section 26 of the Act was filed by the appellant and others on the ground that nomination of the respondent no.3 was accepted illegally as she has not attained the age of 21 years on the date of filing of the nomination and as such, she was not qualified to the post of Sarpanch as per Section 11 (b) of the Act. The Collector, Nuapada issued notices and after accepting evidences etc came to the conclusion that the respondent no.3, opposite party before him, had not attained the minimum age prescribed in Section 11 (b) of the Act at the time of filing nomination for the post of Sarpanch, as her date of birth is Page 2 of 11 29.09.1997. Accordingly, he declared the respondent no.3-Manita Sahu to be disqualified for being elected as Sarpanch of Saliha Gram Panchayat of Nuapada Panchayat Samiti and her election for the said post was declared to be void and illegal.
3. The learned Single Judge after taking into consideration the materials placed before him and relying upon a judgment of this Court in W.P.(C) No.3321 of 2018 held that the allegation with regard to not attaining the age of 21 i.e. the age of eligibility is a violation of Section 11
(b) of the Act, and it can only be challenged in a election petition filed under Section 30 of the Act and the allegation made does not come within the purview of Section 25 of the Act. Hence, he held that the Collector should not have exercised the jurisdiction under Section 26 of the Act and therefore, allowed the writ petition and quashed the order passed by the Collector, Nuapada.
4. The appellant filed an application before the Collector, Nuapada that the respondent no.3 was under age at the time of filing of the nomination, which can be known from reliable source. The respondent no.3 suppressed her date of birth and filed a false affidavit. The appellant examined the Head Master, Government UG High School, Magurpani and the information dated 28.12.2016 and 22.12.2017 obtained under the Right to Information Act has been exhibited. It was established before the Page 3 of 11 Collector that the respondent no.3-Manita Sahu was admitted in the School having date of birth 29.09.1997. The respondent no.3-petitioner in W.P.(C) No.2924 of 2019 has not given an alternative date with regard to her date of birth. In other words, the petitioner has not put an alternative case that she was born on a particular date to make her eligible to contest the election of Sarpanch having attained the age of 21 on the date of nomination. She has only relied upon averments and the document filed as Annexure-5 to the writ petition, which happens to be copy of the electoral roll prepared by the State Election Commissioner for Saliha Grama Panchayat, that she was 22 years on 2017. The contentions raised before the learned Single Judge are that the lack of qualification mentioned in Section 11(b) of the Act cannot be adjudicated upon or answered in a proceeding under Section 26 of the Act as the Section 26 of the Act is confined only to the disqualification referred to in Section 25 of the Act and that the Collector does not have jurisdiction to declare the election void under Section 26 of the Act.
5. Mr. Bibhuti Keshari Biswal, learned counsel for the appellant relied upon the reported case of Bilash Majhi v. Collector and District Magistrate, Kalahandi and another, 2015 (II) CLR 897. In the reported case, the learned Single Judge held that a disqualification appearing in Section 11(a)(i) of the Act can be decided in a proceeding under Section 26(2) of the Act. The learned Single Judge took into account the earlier Page 4 of 11 reported case of Raghunath Sahoo v. Collector & District Magistrate, Keonjhar and others, 2008 (I) OLR 230 and the full Bench judgment of this Court in Debaki Jani v. The Collector and another, 2014 (I) CLR 922.
6. The learned counsel for the respondent no. 3, on the other hand, very emphatically submitted that the order passed by the learned Single Judge does not suffer from any infirmity or illegality. He relied upon the reported cases of Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa and others, AIR 1999 SC 1120 and Debaki Jani v. the Collector and another, (supra). While answering the question formulated at the beginning of the judgment, we are of the opinion that the procedure adopted by the learned Single Judge in disposing of the writ petition is improper in view of the fact that a Bench of co-ordinate strength has already decided this matter in Bilash Majhi v. Collector and District Magistrate, Kalahandi and another (supra). If the learned Single Judge was of the opinion that the judgment and the ratio decided in Bilash Majhi case (supra) is not the correct law, the best course should have been to refer it to a larger Bench. The judgment of the learned Single Judge impugned in this intra-Court appeal is therefore hit by the principles of stare decisis.
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7. We are of the opinion that the view taken by C.R. Dash,J. in Bilash Majhi vs. Collector & District Magistrate, Kalahandi and another (supra) is correct. We give the reasons for the same as follows:
" In Raghunath Sahoo v. Collector & District Magistrate, Keonjhar and others (supra), this Court held that simultaneous proceedings under Sections 26 and 30 of the Act are maintainable. Section 30 of the Act provides for the election dispute before the Civil Judge (Junior Division) whereas Section 26 provides for an enquiry by the District Magistrate and Collector. For the purpose of convenience, the relevant portions of the provisions applicable to the case are quoted below:
" Section 11. Qualification for membership in the Grama Panchayat - Notwithstanding anything contained in Section 10 no member of a Grama Sasan shall be eligible to stand for election-
xxx xx xx
(b) as a Sarpanch or Naib-Sarpanch, if he has not attained the age of twenty-one years or is unable to read and write Oriya;
xx xx xx Section 25 of the Act provides for disqualification for membership of Grama Panchayat. The relevant portion is 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 - xx xx xx Page 6 of 11
(s) is disqualified by or under any law made by the Legislature of the State; or xx xx xx"
Section 26 of the Act reads as follows:
" 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) Where 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."
8. Thus, a joint reading of the aforesaid provisions leaves no doubt in the mind of the Court that in a proceeding under Section 26 of the Act, the Collector has the jurisdiction to determine whether or not such person is or has become disqualified and make an order in that behalf, which shall be final and conclusive. As provided under sub-Section (3) of the aforesaid Act, Page 7 of 11 such decision is to 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, shall be deemed to have vacated office.
Section 25 of the Act lays down the disqualification for membership of Grama Panchayat or to hold the office of Sarpanch. Clause
(s) of Section 25(1) provides that a person shall be disqualified for being elected or nominated as a Sarpanch or other member of the Grama Panchayat constituted under that the Grama Panchayat Act, if he is disqualified by or under any law made by the legislature of the State. In that very Grama Panchayat Act of 1964, Section 11 provides for the qualifications to be a member of the Grama Panchayat or Grama Sasan. Clause (b) of Section 11 very clearly lays down that notwithstanding anything in Section 10 no member of a Grama Sasan shall be eligible to stand for election as a Sarpanch or Naib-Sarpanch, if he has not attained the age of twenty-one years. Thus, a conjoint reading of Section 25 (1) (s) and Section 11 (b) of the Grama Panchayat Act leads to the irresistible conclusion that in order to contest for the post of Sarpanch of a Grama Panchayat, a person should have attained the age of 21. Though there is no mention as about the date on which the candidate should complete 21 years, Page 8 of 11 we are of the opinion that it is on the date of nomination that she/he should have attained the age of 21.
Admittedly, in this case, the factual findings of the Collector, Nuapada that the date of birth of the respondent no.3 is 29.09.1997, hence she had not attained the age of 21 years on the date of nomination, has not been set aside by the learned Single Judge. Therefore, her nomination is illegal and cannot be upheld by the Court.
9. The learned counsel for the respondent no.3 submitted that the Collector-cum-District Magistrate cannot pass an order that the election is void. However, we are of the opinion that the choice of word by the Collector, Nuapada, may not be proper but that does not nullify the findings he has arrived at in a quasi-judicial proceeding. As per sub-Section (3) of Section 26 of the Act, once the Collector comes to the conclusion that a person is not qualified to hold the office and that he takes a decision to that effect and publish the same in his notice board, from that day onwards, the Sarapanch or Naib-Sarpanch or Member of the Grama Panchayat shall be deemed to have vacated the office. So, merely because the Collector used the word 'void' in his order, it will not make his decision on the petition filed under Section 26 of the Act by the appellant susceptible to interference. The argument of Mr. Samvit Mohanty, learned counsel for the respondent no.3 that in an application under Section 26 of the Act only disqualification Page 9 of 11 appearing under Section 25 of the Act should be considered and not the absence of qualification enumerated under Section 11 of the Act, is of no substance. He argued that absence qualification as enumerated in Section 11 can only be decided in a election petition under Section 30 of the Act is also of no substance. In election petition filed under Section 30 of the Act, questions relating to absence of qualification or presence of disqualification as mentioned in Sections 11 and 25 of the Act can be gone into. In our considered opinion, an application under Section 26 of the Act has within its gamut the absence of qualification as well as the presence of disqualification.
10. Thus, we come to the conclusion that the order passed by the learned Single Judge in W.P.(C) No.2924 of 2019 on dated 09.04.2019 is not sustainable and has to be interfered with.
Accordingly, the Writ Appeal is allowed. The order dated 09.04.2019 passed in W.P.(C) No.2924 of 2019 is hereby set aside. It is directed that the election of the respondent no.3 to the post of Sarpanch is illegal as she did not have the qualification to contest in the election on the date in question. It is further directed that the respondent no.3 shall be deemed to have vacated the office from the date of the decision of the Page 10 of 11 Collector, Nuapada that she was disqualified for being elected as Sarpanch on 27.02.2017.
Urgent certified copy of this judgment be granted on proper application.
........................
S.K.Mishra, J.
Savitri Ratho, J. I agree
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Savitri Ratho,J.
Orissa High Court:Cuttack
Dated, 3rd Sept, 2021/PCD
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