Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 101 (ORI)

Gangadhar Bhatra v. State of Orissa

2004-02-20

A.S.NAIDU

body2004
JUDGMENT A. S. NAIDU, J. — Both the aforesaid Writ applications relate to the election of Gangadhar Bhatra, the petitioner in both the cases, to the office of Sarpanch, Pondosguda Grama Panchayat in the election held in the year 2002. As the cause of action in both the Writ applications is the same, the matters were heard together and are being disposed of by this common judgment. 2. Admittedly, Gangadhar Bhatra filed his nomination for contesting the election held in the year 2002 for the office of Sarpanch, Pondosguda Grama Panchayat. After scrutiny his nomina¬tion was accepted and he was elected as the Sarpanch. After declaration of the result, Rupadhar Pujari, the opposite party in W.P. (C) No. 4856 of 2003, one of the defeated candidates in the election, raised an election dispute in consonance with the provisions of the Orissa Grama Panchayat Act, before the Civil Judge (J.D.), Jeypore which was registered as M.J.C. No. 8 of 2002. It was contended by the petitioner in M.J.C. No. 8 of 2002 that as the present petitioner Gangadhar Bhatra had more than two children, he was not eligible to contest the election in con¬sonance with Section 11 of the Orissa Grama Panchayat Act. It was also alleged that Gangadhar Bhatra had three sons, namely, Saheb Naik alias Bhatra aged 21 years, Bulu Naik alias Bhatra born on 24.7.1993 and Lulu Naik alias Bhatra born on 7.7.1998, which was much after the cut-off date and as such he was not eligible to stand for election. 3. While matter stood thus, some other defeated candidates filed a joint application under Section 26 of the Orissa Grama Panchayat Act before the Collector, Koraput which was registered as G.P. Case No. 5 of 2002 raising the self-same allegations, i.e. Gangadhar Bhatra having three children and the third child having born after the cut-off date, he was not eligible to con¬test the election in consonance with the embargo created by Section 11 of the Act. Challenging the said action of the defeat¬ed candidates, the petitioner filed OJC No. 6305 of 2002 with a prayer to quash the further proceedings of G.P. Case No. 5 of 2002 pending before the Collector, Koraput. This Court by order dated 27.6.2002 directed to issue notice to the opposite parties and stayed further proceedings of G.P. Case No.5 of 2002 on the file of the Collector, Koraput. 4. This Court by order dated 27.6.2002 directed to issue notice to the opposite parties and stayed further proceedings of G.P. Case No.5 of 2002 on the file of the Collector, Koraput. 4. The petitioner appeared in M.J.C. No. 8 of 2002 before the Civil Judge (J.D.), Jeypore and filed his counter denying the allegations. It was averred that he had only one son, namely, Bulu Naik alias Bhatra through his legally married wife and the other two children were illegitimate children born through a concubine. 5. To substantiate his case, the petitioner in the afore¬said M.J.C. examined four witnesses and exhibited the relevant entry in the Birth Register of C.H.C., Boriguma for the year 1998 and the certified copy of decree in T.S. No. 57 of 2001 of the Court of the Civil Judge (Senior Division), Jeypore as Exts.1 and 2 respectively. The present petitioner, opposite party in the M.J.C., examined three witnesses and exhibited a Divorce Decree as Ext. 4. 6. Under issue No. 4, the trial Court on discussion of the evidence, both oral and documentary, disbelieved the plea taken by the present petitioner that Bimla, his wife, had been divorced by him vide the Divorce Decree, Ext.4. It was held that in fact Bimla was continuing as the wife of the petitioner till the judg¬ment was pronounced. The Court below arrived at the conclusion on the basis of Ext.1 that the petitioner had begotten his third child on 7.7.1998 through Bimla and that he had three sons at the time of filing his nomination on 21.2.2002. On the basis of such conclusion, the Court blow held that Gangadhar Bhatra, the pre¬sent petitioner, had begotten three children, one of them having born after the cut-off date and thus he was disqualified to contest the election. Accordingly, the Court below set aside the election of the present petitioner and allowed the M.J.C. It also declared Rupadhar Pujari, the petitioner in the M.J.C. (opposite party in W.P. (C) No. 4856/03), as the elected Sarpanch. 7. Being aggrieved by the aforesaid order of the trial Court, the present petitioner (opposite party in the M.J.C.) preferred an Election Appeal, which was numbered as Election Appeal 1 of 2003, before the District Judge, Koraput, Jeypore. The said appellate Court by a well-discussed judgment, confirmed the order of the trial Court and dismissed the appeal. 7. Being aggrieved by the aforesaid order of the trial Court, the present petitioner (opposite party in the M.J.C.) preferred an Election Appeal, which was numbered as Election Appeal 1 of 2003, before the District Judge, Koraput, Jeypore. The said appellate Court by a well-discussed judgment, confirmed the order of the trial Court and dismissed the appeal. The afore¬said judgments of the Courts below are impugned in the present W.P. (C) No. 4856 of 2003. 8. No doubt Section 26 of the Orissa Grama Panchayat Act confers jurisdiction on the Collector to make an enquiry, even suo motu, or if he receives any information, and if he is prima facie satisfied that there is a cause to be enquired into. But then in view of the fact that the dispute as to whether the petitioner was disqualified to contest the election or not, as he allegedly had more than two children on the date of filing of the nomination, was pending adjudication in the “election dispute”, invoking jurisdiction under Section 26 of the Act by the Collec¬tor was not just and proper. This Court has in fact stayed further proceedings of G.P. Case No. 5 of 2002 pending before the Collector. In the meanwhile the said election dispute has been efficaciously adjudicated by the Civil Judge (J.D.) and a deci¬sion has already been arrived at. The Appeal preferred before the District Judge has also been dismissed. Thus G.P. Case No. 5 of 2002 has become infructuous. Consequently there is nothing more to be decided in O.J.C. No. 6305 of 2002 which is accordingly dis¬posed of as infructuous. 9. So far as W.P. (C) No. 4856 of 2003 is concerned, we have carefully perused the pleadings and documents filed as also the affidavits of the parties. We have also heard the learned counsel for the parties and most diligently considered the sub¬missions made. We have no hesitation to arrive at the conclusion that the petitioner had begotten a third child by the time the nomination for election was filed by him and that too the child was born after the cut-off date. The concurrent findings of the Courts below do not suffer from any vice of non-consideration of material facts, nor do they suffer from any illegality or irregu¬larity. Therefore, we do not find any reason to interfere with the findings of the Courts below in exercise of our Writ juris¬diction. The concurrent findings of the Courts below do not suffer from any vice of non-consideration of material facts, nor do they suffer from any illegality or irregu¬larity. Therefore, we do not find any reason to interfere with the findings of the Courts below in exercise of our Writ juris¬diction. 10. But then, learned counsel for the petitioner forcefully submitted that in absence of any prayer in the M.J.C. to the effect that the petitioner in the M.J.C. should be declared as the elected Sarpanch after setting aside the election of the Writ petitioner, the Court below acted illegally in declaring the petitioner in M.J.C. (opposite party in W.P. (C) No. 4856 of 2003) as the elected Sarpanch. 11. Section 34 of the Orissa Grama Panchayat Act specifi¬cally stipulates that a petitioner in an election dispute may, in addition to claiming a declaration that the election of all or any of the returned candidates is void claim a further declara¬tion that he himself or any other candidate has been duly elect¬ed. Section 40 of the Act stipulates that if any person who has lodged a petition, has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Civil Judge (Junior Division) is of opinion - (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candi¬date by a corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes; he shall after declaring the election of the returned candidate to be void declare the petitioner or such other candi¬date as the case may be, to have been duly elected. 12. Scrutiny of the relief sought reveals that the peti¬tioner in the M.J.C. before the Court below had not sought any relief to declare him elected. Rather, the alternative relief sought was to direct to conduct a fresh election. In the absence of a specific prayer to declare the petitioner in the M.J.C. as the elected Sarpanch, we feel that it was not just and proper for the Court below to declare the said petitioner as the elected Sarpanch. The Court below has not kept in mind the provisions of Section 40 of the Orissa Grama Panchayat Act. In the absence of a specific prayer to declare the petitioner in the M.J.C. as the elected Sarpanch, we feel that it was not just and proper for the Court below to declare the said petitioner as the elected Sarpanch. The Court below has not kept in mind the provisions of Section 40 of the Orissa Grama Panchayat Act. In view of the aforesaid discussion, we have no hesitation to quash the portion of the order of the Courts below declaring the petitioner in the M.J.C. (opposite party in W.P. (C) No. 4856 of 2003) as the elected Sarpanch and we order accordingly. We further direct that as the election of the Writ petitioner has been set aside, it would be open to the authorities to proceed in accordance with law. According¬ly, W.P. (C) No. 4856 of 2003 is allowed in part. We direct the parties to both the Writ Petitions to bear their respective costs. SUJIT BARMAN ROY, C.J. I agree. One petition disposed of and one allowed in part.