Orissa High Court
Padmini Majhi vs Collector And D.M on 6 August, 2024
Author: B. P. Routray
Bench: B. P. Routray
Signature Not Verified IN THE HIGH COURT OF ORISSA AT CUTTACK
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack W.P.(C) No.3202 of 2024
Date: 08-Aug-2024 17:58:33
Padmini Majhi .... Petitioner
Mr.K.K.Mishra, Advocate
-versus-
Collector and D.M., Nuapara and
others .... Opposite Parties
Mr.S.Ghose, AGA
Mr.S.K.Mohanty, Advocate for O.P.No.4
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
6.8.2024 Order No.
3. 1. The matter is taken up through hybrid mode.
2. Heard Mr.Mishra, learned counsel for the Petitioner and Mr.Mohanty, learned counsel for Opposite Party No.4 as well as Mr.Ghose, learned Additional Government Advocate for the State- Opposite Parties.
3. The Petitioner is the elected candidate for the office of Sarpanch of Pendrawan Gram Panchayat under Komana Block in the district of Nuapara. She was disqualified from the office by the Collector, Nuapara under Section 26 of the Odisha Gram Panchayat Act vide impugned order dated 19th January 2024 (Annexure-4), on the petition filed by O.P. No.4 who also contested the election along with the petitioner. The ground for disqualification was that the Page 1 of 3 Signature Not Verified Petitioner does not know, in the opinion of the Collector, to read and Digitally Signed Signed by: CHITTA RANJAN write Oriya.
BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 08-Aug-2024 17:58:33
4. Mr.Mishra submits that such a petition preferred by Opposite Party No.4 under Section 25 and the jurisdiction of the Collector exercised under Section 26 of the Odisha Gram Panchayat Act, is not maintainable in view of the settled law. In support of his submission, Mr.Mishra relies on a decision of this Court in Tikayat Naik vrs. State of Odisha, AIR 2019 Orissa 89.
5. In the above cited case, this Court has held, as follows:
"5.1. Reading both the above provisions, this Court from reading of Section 11(b) of the Act, finds this is a provision making a candidate for the post of Sarpanch and Naib-Sarpanch ineligible, if he has not attained the age of 21 years or is unable to read and write Oriya. Looking to the allegation in the plaint to the Collector, it became clear that the challenge is made to the election of the petitioner to the post of Sarpanch on her not satisfying the age criteria at Section 11(b) of the Orissa Grama Panchayats Act. However, in the specific ground of challenge, this Court finds for there being no availability of the ground under Section 25 of the Orissa Grama Panchayats Act, the only remedy for the petitioner was to avail the remedy under Section 30 of the Orissa Grama Panchayats Act. Admittedly, there is no election dispute within the time framed. Further, facts involved herein also discloses that the petitioner moved this Court in an earlier writ petition much after the time for raising an election dispute, may be for no scope available to the petitioner, this Court considering the liberty requested by the petitioner and as an application under Section 26(2) of the Orissa Grama Panchayats Act was already pending before the Collector, this Court permitted her to move under Section 26(2) of the Act to the Collector of the concerned district. Now looking to the provision at Section 25 read with Section 26(2) of the Act, this Court finds the provision at Section 25 does not include ineligibility of a candidate on account of not attaining the age of 21 years on the date of filing of the nomination. Further, reading of both the provisions at Section 11 as well as Section 25 of the Orissa Grama Panchayats Act, this Court finds Section 11 of the Act deals with qualification for membership in a Grama Panchayat election whereas Section 25 of the Act deals with disqualification of membership of a Grama Panchayat for being elected or nominated as a Sarpanch. Provision at Section 11 of the Act restricts the persons from contesting the election. Provision at Section 25 of the Act restricts a person from continuing even after being elected. Looking to the allegation, particularly, attracting the provision at Section 11(b) of the Act to make the elected candidate disqualified, here looking to the provision at Section 26 of the Act, this Court finds the Section 26 of the Act provides Page 2 of 3 Signature Not Verifiedprocedure to give effect to disqualification, which undoubtedly means the Digitally Signed cases involving the adjudication of disqualification as enumerated under Signed by: CHITTA RANJAN BISWAL Section 25 of the Act. Therefore, this Court is of no doubt that for the Reason: Authentication Location: Orissa High Court, Cuttackattraction of provision at Section 11(b) of the Act, to the case at hand, the Date: 08-Aug-2024 17:58:33 only remedy available to the petitioner was to prefer an Election Dispute under section 30 of the Act and no proceeding under Section 26(2) of the Act is maintainable particularly for the involvement of election of elected Sarpanch having not got the eligibility to contest the election for not his attaining the age of 21 years. It is in the circumstance, this Court finds the proceeding under Section 26(2) of the Act, 1964 was per se not maintainable. It is suffice to mention here that proceeding under Section 26 of the Act can only be invited in the event there is attraction of any disqualification clause involving Section 25 of the Act. For the involvement of the provision of section 11(b) of the Act, proceeding under Section 26 of the Act was not maintainable and should have been dismissed by the Collector on this ground alone. It is at this stage, a decision of this Court in the case of Smt. Parbati Majhi v. Collector, Kalahand and anotheri, 2008 (2) OLR 198 where the case also involves initiation of a proceeding under Section 26(2) of the Act on account of the elected Sarpanch not attaining the age of 21 years thereby attracting the provision of section 11(b) of the Act. In the aforesaid decision, this Court in a Single Bench has also the view that in such circumstance, the only remedy was to go for the election dispute and proceeding under Section 26(2) of the Act was not maintainable. For the observation of this Court that the proceeding under Section 26(2) of the Act before the Collector was not maintainable, this Court is not inclined to interfere in the merit involving the impugned order leaving other issues involved herein to be decided in appropriate application, if any, raised."
6. The present dispute, where the petition was filed by one of the contestant in the election instead of filing Election dispute, being found squarely covered by the aforesaid decision of this Court, it is held that exercise of the jurisdiction by the Collector is unsustainable and as such, the impugned order dated 19th January 2024(Annexure-4) is set aside.
7. The writ petition is disposed of.
( B.P. Routray) Judge C.R.Biswal Page 3 of 3