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2006 DIGILAW 877 (ORI)

Chandrakanti Bhoi v. Collector, Balangir

2006-12-22

I.M.QUDDUSI, N.PRUSTY

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JUDGMENT I. M. QUDDUSI, J. : The petitioner by means of this writ petition has challenged the proceeding initiated against him by the Collector, Bolangir, vide order dated 27.7.2004 passed under Section 26 of the Orissa Grama Panchayat Act for declaring him disqualified to hold the office of Sarpanch of Mundapadar G. P. on the ground that he has begotten more than two children. On the same ground an Election Petition registered as MJC No.8 of 2002 is filed in the Court of the Addl. Civil Judge (Jr. Division) Kantabanji by one Dipa Bhoi, who was a candidate in the said election. 2. The question that arises for determination in this case is whether during pendency of an Election Petition, the Collector can hold an enquiry on the question of petitioner’s incurring disqualification on the same ground. Before proceeding further, it is necessary to peruse the relevant provisions of the Orissa Grama Panchayat Act relating to filing of the election petition and the power of the Collector to hold proceeding for the purpose of adjudicating the question of disqualification of a person for holding the post of Sarpanch or a Member of a G.P. In this regard Sub-Section (1) of Section 25 of the Orissa Grama Panchayat Act (for short, “the Act”) provides that a person shall be dis¬qualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act; whereas Sub-section (2) thereof provides that a Sarpanch or any other member, of a Grama Panchayat shall be disqualified to continue and shall cease to be a member if he incurs any of the disqualification specified in Clauses (a) to (j), Clauses (m) to (p) and Clauses (t) to (v) of Sub-section (1). The relevant provi¬sions of Sections 25 and 26 of the Act are quoted hereunder: “25. Disqualification for membership of Grama Panchayat. The relevant provi¬sions of Sections 25 and 26 of the Act are quoted hereunder: “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) is not a citizen of India; or (b) is not on the electoral roll in respect of the Grama or of the ward, as the case may be; or (c) is of unsound mind; or (d) is an applicant to be adjudicated as an insolvent or is an undischarged insolvent; or (e) is a deaf-mute, or is suffering from tuberculosis; or in the opinion of the District Leprosy Officer is suffering from an infectious type of leprosy; or (f) is convicted of an election offence under any law for the time being in force; or (g) is convicted for an offence involving moral turpitude and sentenced to imprisonment of not less than six months unless a period of five years has elapsed since his release or is ordered to give security for good behaviour under Section 110 of the Code of Criminal Procedure, 1898 (5 of 1898); or (h) holds any office of profit under the State or Central Gov¬ernment or any local authority; or (i) is a teacher in any school recognized under the provisions of the Orissa Education Code for the time being in force; or (j) holds the office of a Minister either in the Central or State Government; or (k) has been dismissed from the service of the State Government or of any local authority; or (l) being a member of a Co-operative Society, has failed to pay any arrear of any kind accrued due by him to such society before filing of the nomination paper in accordance with the provisions of this Act and the rules made thereunder : Provided that in respect of such arrears a bill or an notice has been duly served upon him and the time, if any, specified therein has expired; or (m) is in the habit of encouraging litigation in the Grama and has been declared to be so on enquiry by the Collector in the prescribed manner or by any other authority under any law for the time being in force; or (n) is interested in a subsisting contract made with or in any work being done for the Grama Panchayat or the Samiti, or any Government except as a shareholder other than a Director in an incorporated company or as a member of a Co-operative Society; or (o) is a paid and trained legal practitioner on behalf of the Grama Sasan; or (p) is a member of the Orissa Legislative Assembly or of either of the Houses of Parliament; or (q) is a member of the Samiti elected under Clause (h) of Sub-section (1) of Section 16 of the Orissa Panchayat Samiti Act, 1959 (Orissa Act 7 of 1960); or (r) is disqualified by or under any law for the time being in force for the purposes of an election to the Legislature of the State; or (s) is disqualified by order any law made by the Legislature of the (State); or (t) is in arrear of any dues payable by him to the (Grama Panchayat); or (u) has more than one spouse living; or (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 Panchayats (Amendment) Act, 1994 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 (1); or (b) has failed to attend the consecutive ordinary meetings held during a period of four months commencing with effect from the date of the last meeting which he has failed to attend; or (c) being a legal practitioner appears or acts as such against the Grama Sasan; or (d) being a member of a Co-operative Society has failed to pay any arrears of any kind accrued due by him to such society within six months after a notice in this behalf has been served upon him by the society. (3) Without prejudice to the provisions of the foregoing Sub-section the Sarpanch of a Grama Panchayat shall be disquali¬fied to continue and cease to be the Sarpanch, if he fails to attend three consecutive ordinary meetings of the Samiti, of which he is a member, without the previous permission in writing of the said Samiti. (4) Notwithstanding anything contained in the foregoing Sub-sections; (a) the State Government may remove any one or more of the disqualifications specified in Clauses (f), (g), (k) and (e) of Sub-section (1); (b) when a person ceases to be a Sarpanch or Naib-Sarpanch or any other member in pursuance of Clause (g) of Sub-section (1) he shall be restored to office for such portion of the term of office as may remain unexpired on the date of such restoration, if the sentence is reversed or quashed on appeal or revision or the offence is pardoned or the disqualification is removed by an order of the State Government; and any person filling the vacancy in the interim period shall on such restora¬tion vacate of the office. 26. Procedure of giving effect to disqualification - (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 Sar¬panch 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 applica¬tion 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 on 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 publica¬tion he shall be entitled to act, as if he was not disqualified. xxx xxx xx” Section 30 of the Act provides :- “no election of a person as a member of a Grama Panchayat or as a Sarpanch or Naib-Sarpanch held under this Act shall be called in question except by an election petition presented in accordance with the provisions of Chapter....... . Sub-section (1) of Section 31 provides “the petition shall be presented on one or more of the grounds specified in Section 39 before the Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be pre¬scribed in that behalf as security for costs within fifteen days after the date on which the name of the person elected is pub¬lished under Section 15 : Provided that if the office of the Civil Judge (Junior Division) is closed on the last day of the period of limitation, as aforesaid, the petition may be presented on the next day on which such office is open. Provided further that if the petitioner satisfies the Civil Judge (Junior Division) that sufficient cause existed for the failure to present the petition within the period aforesaid the Civil Judge (Junior Division) may in his discretion condone such failure. Provided further that if the petitioner satisfies the Civil Judge (Junior Division) that sufficient cause existed for the failure to present the petition within the period aforesaid the Civil Judge (Junior Division) may in his discretion condone such failure. Sub-section (2) of Section 31 provides :- no candidate who has been elected to be a member, Sarpanch or Naib-Sarpanch of a Grama Panchayat shall be debarred from holding office as such member, Sarpanch or Naib-Sarpanch merely by reason of any elec¬tion petition having been filed against him unless his election has been declared void by the Civil Judge (Junior Division.)” Section 32 of the Act provides :- “(1) the petition may be presented by any person who has filed his nomination. (2) A person whose election is questioned and where the petition is to the effect that any other candidate is to be de¬clared elected in place of such person, every unsuccessful candi¬date who has polled more votes than such candidate shall be made opposite party to the petition. Section 39 provides; grounds for declaring election void. The Civil Judge (Junior Division) shall declare the election of a returned candidate void, if he is of the opinion-in-which one of the grounds is : (a) that on the date of his election the candidate was not qualified or was disqualified to be elected under the provisions of this Act or the rules made thereunder; or....” 4. A bare comparison of Sections 30 to 32 with 26 of the Act shows that an election petition can be presented by a person who filed his nomination on the ground mentioned in Section 25, i.e., disqualification for being elected or nominated as Sar¬panch. But the Collector under Section 26 of the Act has power to determine disqualification either suo motu or on receipt of an application under Sub-section (1) and make an order in that behalf which shall be final and conclusive. Under Section 26 of the Act the Sarpanch at the request of the Grama Panchayat or if such person is himself in doubt whether or not he is or has become so disqualified may apply to the Collector for a decision on the allegation of doubt. Under Section 26 of the Act the Sarpanch at the request of the Grama Panchayat or if such person is himself in doubt whether or not he is or has become so disqualified may apply to the Collector for a decision on the allegation of doubt. Thus, it is clear that no other person except one who had filed nomination can apply for setting aside the election of the elected candidate whereas any member of the Grama Panchayat or Naib Sarpanch or Sarpanch at the request of the G.P. can apply to the Collector for taking a decision as to the disqualification of the elected candidate. Therefore, the mode of decisions by the Civil Judge (Junior Division) and the Collector are quite different. A person who contested the elec¬tion cannot file application under Section 26 of the Act and he is only to file an election petition. Similarly, a member of the Grama Panchayat concerned cannot move an election petition and the course open to him is to file a petition under Section 26 before the Collector. 5. In view of the above, if the election petition is pending for decision against the petitioner on the ground that he was having more than two children within a period of one year from the date of commencement of the Orissa Grama Panchayat (Amendment) Act, 1994 which came into force on 22.4.1994 and a Sarpanch or Member of the Grama Panchayat has moved the applica¬tion before the Collector under Section 26 of the Act, the latter cannot be restrained from proceeding on the ground that an elec¬tion petition is pending before the Civil Court. The Civil Judge (Junior Division) in the election petition can determine the question of disqualification. Under Section 26 of the Act on being moved by a Member of Grama Panchayat or Sarpanch at the request of the Grama Panchayat or on the basis of such informa¬tion received, the Collector can take suo motu action for such determination. 6. In view of the above mentioned facts and circumstances, this writ petition is disposed of with the direction that the Collector shall see if any application moved by the complainant is maintainable. Only after taking such a decision, if he wants to take suo motu action in the matter, he can do so. 6. In view of the above mentioned facts and circumstances, this writ petition is disposed of with the direction that the Collector shall see if any application moved by the complainant is maintainable. Only after taking such a decision, if he wants to take suo motu action in the matter, he can do so. Needless to mention here, the petitioner shall be given an opportunity of being heard in compliance with the principles of natural justice as laid down by this Court. N. PRUSTY, J. I agree. Petition disposed of.