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2003 DIGILAW 711 (ORI)

Basudev Sahoo v. Akhaya Kumar Pradhan

2003-12-16

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — In view of the embargo created under Section 25(1) (v) of the Orissa Grama Panchayat Act, 1964 (herei¬nafter referred to as ‘the Act’) whether a person having three children by giving away one child in adoption would become elig¬ible to contest the election for the post of Sarpanch of a Grama Panchayat is the moot question required to be considered in this case. 2. For the sake of brevity and better appreciation, Sec¬tion 25(1)(v) of the Act is quoted hereinbelow : “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 (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, 1964, 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.” 3. Before answering the question posed, it would be pru¬dent to discuss the facts in brief. Basudev Sahoo, the petition¬er, filed his nomination and contested for the post of Sarpanch of Korakara Grama Panchayat under Baranga Block in the district of Cuttack. The said election was held on 23rd of February, 2002. The election results were declared on 28th February, 2003 declar¬ing the petitioner elected as Sarpanch. The results of the elec¬tion were published by the competent authority in exercise of power conferred under Section 15 of the Act on 1st of March, 2002. Opposite party No.1 who was also a candidate for the post of Sarpanch of Korakara Grama Panchayat and was defeated in the election raised an Election Dispute in Consonance with Section 31 read with Section 39(1)(b) and (d) of the Act before the Election Tribunal, i.e. the Civil Judge (Junior Division), First Court, Cuttack with a prayer to declare the election of the petitioner as null and void. According to opposite party No.1, the petition¬er, at the time of filing of his nomination paper, was having more than two children, but suppressing the said material fact had filed the nomination paper. According to opposite party No.1, the petition¬er, at the time of filing of his nomination paper, was having more than two children, but suppressing the said material fact had filed the nomination paper. It was further alleged that though the said disquali¬fication of the petitioner was brought to the notice of the Election Officer, opposite party No.3, i.e. the B.D.O., Baranga, his nomination was not rejected and thus he was constrained to raise the Election Dispute. The said dispute was registered as Election Misc.Case No. 6 of 2002. According to opposite party No.1, the petitioner had begotten three children, namely, Samanta Kumar Sahoo, Kumari Anita Sahoo and Kumari Rosa Sahoo and they were born in the year 1993, 1997 and 2000 respectively. The petitioner, who was opposite party No.3 in the Election Misc. Case, filed his written statement/objection. Though it was admitted by the petitioner that he had three children, the stand taken by him was that his second child, namely, Anita, had been given away in adoption to one Rama Chandra Sahoo soon after her birth and thus he had only two children on the date of filing of the nomination paper for the post of Sarpanch and as such there was no contravention of the provision of Section 25(1)(v) of the Act. 4. To substantiate the plea that one of the daughters of the petitioner, namely, Anita born on 31st July, 1997, had been adopted away by the brother-in-law of the petitioner Rama Chandra Sahoo on 28th November, 1997, the petitioner for examined said Rama Chandra Sahoo as O.P.W.2. Relying upon the evidence of O.P.W. 1, O.P.W.2 and O.P.W.3, the trial Court came to the conclusion that Anita was, in fact, given away in adoption by the petitioner and that on the date of filing of the nomination paper the petitioner had only two children, and not three. Thus it was held that the petitioner had not violated the provision of Section 25(1)(v) of the Act. His nomination having been accepted and he having been duly elected by the mandate of voters, the same could not be held to be invalid in the eye of law. On the basis of such conclusion, the Election Misc.Case was dismissed. 5. Being aggrieved by the said order, opposite party No.1 filed an Appeal before the learned District Judge, Cuttack which was registered as Election Appeal No.9 of 2002. On the basis of such conclusion, the Election Misc.Case was dismissed. 5. Being aggrieved by the said order, opposite party No.1 filed an Appeal before the learned District Judge, Cuttack which was registered as Election Appeal No.9 of 2002. The learned District Judge, on an analysis of the evidence, both oral and documentary, came to a categorical finding that the third child was born to the petitioner one year after the Amendment Act, 1994 stipulating the disqualification was enacted. The first child Samanta was born on 3.7.1993. The second child Anita was born on 23.11.1997 and the third child Rosa was born on 11.5.2000, i.e. beyond one year of the insertion of Clause (v) to Section 25(1) of the Act. It is pertinent to mention here that Clause (V) to Section 25(1) was inserted on 18.11.1994. The District Judge came to the conclusion that the petitioner had begotten the third child beyond the cut off date provided under the Clause and therefore he was not qualified to contest the election. On the basis of such conclusion, the Election Appeal was allowed, the order of the trial Court was set aside and the election of the petitioner to the post of Sarpanch, Korakara Grama Panchayat was declared invalid. The petitioner seeks to challenge the said judgment of the District Judge invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 6. Mr. B. H. Mohanty, learned counsel appearing for the petitioner, forcefully submitted that the learned District Judge acted contrary to law inasmuch as law only requires that a candidate should not have more than two children on the date of filing of the nomination. According to him, adoption of petition¬er’s second child Anita had severed all relationship inter se between Anita and the petitioner from the date of her adoption. According to Mr. Mohanty, Anita no longer continued to be the daughter of the petitioner she having been legally given away in adoption to another person and therefore the petitioner had only two children on the date of filing his nomination paper. 7. Mr. Parija, learned counsel for opposite party No.1, at the other hand strongly repudiated the contention of Mr. Mohanty. According to Mr. 7. Mr. Parija, learned counsel for opposite party No.1, at the other hand strongly repudiated the contention of Mr. Mohanty. According to Mr. Parija, in fact, out of the wedlock of the peti¬tioner and his wife, three children were born, that too two of the beyond one year of amendment of the Grama Panchayats Act. Bringing to our notice the proviso to Clause (v) to Section 25(1) of the Act, Mr. Parija forcefully submitted that the disqualifi¬cation stipulated in the Act is begetting three children. Accord¬ing to him, the petitioner had, in fact, begotten three children and the plea that one of his daughters was given away in adoption does not take away the disqualification earned. It is no more res integra that begetting a third child after 1994 is a disqualifi¬cation for contesting the election of a Grama Panchayat as per Section 25(1)(v) of the Act. In the case of Malaya v. Collector, Mayurbhanj, AIR 1999 Orissa 5, this Court held that if a third child is born to a contestant after the cut off date, he is disqualified to contest the election. Similar view has also been taken n the case of Baneswari Biswal v. State Election Commis¬sioner, 1997 (I) OLR 310. 8. We have patiently heard the learned counsel for the parties, carefully scrutinised the materials on record, meticu¬lously gone through the provisions of law and diligently consid¬ered the matter. The right to contest the election is neither a fundamental right, nor a common law right. It is a right con¬ferred by a Statute. At the most, in view of Part IX of the Constitution, the right to contest election for an office of Panchayat may be said to be a Constitutional right - a right originating in the Constitution and given a shape by a Statute. Thus, there is nothing wrong if the same Statute which confers the right to contest the election also stipulates necessary qualification, without which a person cannot offer his candida¬ture for an elective office and also provides for disqualifica¬tion which would disable a person from contesting or holding an elective statutory office. 9. It was strenuously submitted by Mr. Mohanty, learned counsel for the petitioner, that the embargo created causes serious problems in the rural population, inasmuch as couples having more than two living children are kept out from taking part in the grassroot democracy. 9. It was strenuously submitted by Mr. Mohanty, learned counsel for the petitioner, that the embargo created causes serious problems in the rural population, inasmuch as couples having more than two living children are kept out from taking part in the grassroot democracy. It was also reiterated by him that as one of the children of the petitioner was given away in adoption, it should be construed that the petitioner had only two children. But then a reading of Section 25(1) (v) and the proviso thereto leads us to an irresistible conclusion that the disquali¬fication is earned no sooner the third child is begotten and lives after the two living children. Merely because a person has parted with one child, by giving away the said child in adoption, the disqualification does not wither away. The Supreme Court in the case of Javeed and others v. State of Haryana and others, 2003 (5) Supreme 371 , observed as follows : “While interpreting the scope of disqualification, we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two, who are living, then merely because one or more of them are given in adoption, the disqualification is not wiped out.” 10. The Legislature in its wisdom has provided for the disqualifications for membership of Grama Panchayat under Section 25 of the Orissa Grama Panchayat Act, one of the disqualifica¬tions being having more than two children after the cut off date. If any one chooses to have more living children than two, he is free to do so under the law as it stands now, but then he should pay a little price and that is depriving himself of holding an office in Panchayat in the State of Orissa. There is nothing unreasonable about it. The validity of the said Section has been upheld by this Court as well as by the Supreme Court. 11. In view of the discussions made above, we have no hesi¬tation to hold that giving away a child in adoption to another person shall not take away the disqualification earned by a person by begetting three children. 12. We accordingly find no merit on the submissions ad¬vanced by learned counsel for the petitioner and dismiss the Writ Petition. 11. In view of the discussions made above, we have no hesi¬tation to hold that giving away a child in adoption to another person shall not take away the disqualification earned by a person by begetting three children. 12. We accordingly find no merit on the submissions ad¬vanced by learned counsel for the petitioner and dismiss the Writ Petition. Parties to bear their own costs. Petition dismissed.