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2011 DIGILAW 165 (ORI)

JADUNATH MARANDI v. STATE OF ORISSA

2011-03-16

R.N.BISWAL

body2011
JUDGMENT : R.N. Biswal, J. - The petitioner has challenged the order dated 18.10.2010 passed by the Collector and District Magistrate, Mayurbhanj in G.P. Misc. Case No. 15 of 2007 declaring him disqualified to hold the office of Sarpanch of Patisari Grama Panchayat under Badasahi Block in the district of Mayurbhanj. 2. Admittedly the Petitioner was elected as Sarpanch of Patisari Grama Panchayat in the last election held during the year 2007. While he was continuing as such, one Kartikeswar Mohanty made a complaint before the Collector and District Magistrate, Mayurbhanj that the petitioner had six children namely, Kinaram Marandi, Arati Marandi, Minati Marandi, Sumati Marandi, Bhima Charan Marandi and Rebati Marandi, of whom, the latter two children were born on 15.4.1996 and 20.5.1997 respectively and as such he was disqualified to continue as the Sarpanch, in view of the provision contained u/s 25(2)(a) of the Orissa Grama Panchayat Act, 1964 (in short 'G.P. Act'). The Collector registered the complaint as G.P. Misc. Case No. 15 of 2007 and directed the B.D.O. Barasahi to conduct an enquiry on the complaint and submit a report. The petitioner was noticed to file show cause, in response to which, he filed show cause denying to have six children. According to him, he begot only two children through Malha Majhi. Earlier, Malha Majhi had married to one Jogeswar of West Bengal, while they were working at Bhubaneswar and out of their said wedlock, six children were born. After death of Jogeswar, the petitioner kept Malha in his house. As per the report of the B.D.O., the petitioner begot eight children, out of whom, the 8th child was a male, who was born on 24.6.1999 and expired on 19.6.2001. So by the time of enquiry, the petitioner had seven children. The 6th Child Bhima was born on 15.4.1996 and the 7th child Rebati on 20.5.1997. The complainant and the petitioner were also examined by the Collector. Besides examining himself, the complainant examined another witness namely Jagannath Marandi, the brother of the petitioner to establish his complaint. The petitioner, besides examining himself, examined two other witnesses namely, Bhala Murmu, the brother of Malha and Ramesh Chandra Marandi, his (petitioner) brother. Petitioner proved four documents marked Annexures-1 to 4. Annexure-1, the Job Card of the petitioner shows that Arati, Minati and Sunati are his three daughters. The petitioner, besides examining himself, examined two other witnesses namely, Bhala Murmu, the brother of Malha and Ramesh Chandra Marandi, his (petitioner) brother. Petitioner proved four documents marked Annexures-1 to 4. Annexure-1, the Job Card of the petitioner shows that Arati, Minati and Sunati are his three daughters. As per Annexure-2 granted by the Executive Officer, Patisari Grama Panchayat, the petitioner has a handicapped son, after the name Kina Ram Marandi, who is getting handicapped stipend. Annexure-3 is the certificate granted by the Headmaster Patisari Govt. U.G.M.E. School indicating that as per the School Admission Register the date of birth of Bhima Charan Marandi son of Jadunath Marandi, a student of class-VII of his school, was 15.4.1996. Similarly, Annexure-4 issued by the Headmaster In-Charge of Brahmapur Primary School shows that as per School Admission Register, Rebati Marandi daughter of Jadunath Marandi, a student of Class-V, was born on 20.5.1997. After assessing their evidence and the report of the B.D.O., the Collector held that in fact the petitioner begot seven children, of whom, the last two children were born on 15.4.1996 and 20.5.1997 respectively and accordingly, by exercising the power under Sub-Section 2 of Section 26 of the G.P. Act, declared the petitioner disqualified to hold the office of Sarpanch vide order dated 18.10.2007, as stated earlier. Being aggrieved with the said order, the petitioner has preferred the present writ petition. 3. As per Section 25(2)(a)of the G.P. Act, a Sarpanch or any other members of a Grama Panchayat shall be disqualified to continue and shall cease to be a member, if he incurs any of the disqualifications specified in Clauses (a) to (j), (m) to (p) and Clauses (t) to (v) of Sub-Section (1) of Section 25 of the G.P. Act. As per Clause (v) of Section 25(1) of the said Act, a person shall be disqualified for membership of a Grama Panchayat, if he has more than two children, provided that, the said disqualification shall not apply to any person, who has more than two children on the date of commencement of the Grama Panchayat (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. The amended provision came into force with effect from 18.4.1994. The amended provision came into force with effect from 18.4.1994. So up to 17.4.1995 even if one is having more than two children he cannot be disqualified to hold the office of Sarpanch. But, in the case at hand, the last two children of the petitioner were born after 17.4.1995, as held by the learned Collector. Learned counsel for the petitioner submits that learned Collector held that the petitioner begot the 6th and 7th children on 15.4.1996 and 20.5.1997 respectively without taking into consideration the report of the health worker, which shows that, the 7th child was born on 15.7.1996. If the date of birth of the 6th child namely, Bhima Charan Marandi is taken to be 15.4.1996 as per the School Admission Register, then the report of the Health Worker that the 7th child was born on 15.7.1996 is an impossibility, as a female cannot give birth to two children within a span of three months. In support of his submission, he relied on the decision in the case of Madan Mohan Singh and Others Vs. Rajni Kant and Another. It transpires from Annexure-3, the certificate issued by the Headmaster, Patisari Govt. U.G.M.E. School, that as per the Admission Register, the date of birth of Bhima Charan Marandi, son of Jadunath Marandi was 15.4.1996. Similarly, Annexure-4, the certificate, issued by the Headmaster in-charge of Brahmapur Primary School, reflects that Kumari Rebati Marandi daughter of Jadunath Marandi was born on 20.5.1997, as per the School Admission Register. It also transpires from the enquiry report of the B.D.O. Barasahi that the date of birth of Bhima Charan Marandi and Kumari Rebati Marandi were 15.4.1996 and 20.5.1997 respectively. Of course, it is found from the report of the Health Worker, Barasahi, C.H.C., that the 7th child of Jadunath Marandi was born on 15.7.1996. The name of the 7th child is not there in the report. In view of the overwhelming oral and documentary evidence that Bhima Charan Marandi and Kumari Rebati Marandi were born on 15.4.1996 and 20.5.1997, it cannot be said that the petitioner begot any other child on 15.7.1996. So the decision in the case of Madan Mohan Singh (supra) cannot be applicable to the present case. Learned counsel for the petitioner further submitted that the petitioner was not given the copy of enquiry report and a chance of being heard. So the decision in the case of Madan Mohan Singh (supra) cannot be applicable to the present case. Learned counsel for the petitioner further submitted that the petitioner was not given the copy of enquiry report and a chance of being heard. But it is found from the order dated 7.1.2008 passed by he Collector in G.P. Misc. Case No. 15 of 2007 that the petitioner was allowed to take copy of enquiry report, complaint petition and other documents. As stated earlier petitioner examined himself, besides two others. He also cross examined the complainant and the witness, examined on his behalf. So, it cannot be said that no chance of being heard was afforded to the Petitioner. Under such circumstances, the writ petition stands dismissed. No cost. Final Result : Dismissed