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2014 DIGILAW 106 (ORI)

Sahadev Giri v. State of Orissa

2014-02-11

B.K.NAYAK

body2014
JUDGMENT B.K. NAYAK, J. : Order dated 3.8.2013 passed by the Collector, Mayurbhanj, O.P.2 in G.P. (Disqualification) Case No.1/2012 (Annexure-1) declaring the petitioner disqualified under Clauses (t) and (v) of Sub-Section (1) of Section 25 of the Orissa Grama Panchayat Act, 1964 (in short, “the Act”) to become Ward Member in respect of Ward No.3 under Hatbadra Grama Panchayat of Kusumi Block in the district of Mayurbhanj is the subject matter of challenge in this writ petition. 2.The disqualification proceeding against the petitioner was initiated on the basis of a petition filed by O.P. 4. The allegations are that the petitioner had begotten a third child after the cut off date and that he was in arrear of rent payable by him to the Grama Panchayat. 3.The petitioner filed his show cause reply after receipt of notice contending that he has not begotten a third child and that such third child, who had been abandoned on a river bed, was recovered by him and was brought up as a foster child, and therefore, he has not incurred any disqualification under Clause (v) of Sub-Section (1) of Section 25 of the Act. With regard to he petitioner’s default in paying the arrear rent in respect of the shop room allotted in his favour by the Grama Panchayat, it was stated by him in the show cause reply that in view of pendency of a civil suit at Rairangpur between the Grama Panchayat and one Mahendra Majhi with regard to ownership over the land, on which the shop room stands, the Secretary of the Grama Panchayat did not accept the rent from the petitioner even though he offered to him, and therefore, he cannot be said to be in arrear of dues to the said Grama Panchayat, as contemplated under Clause (t) of Sub-Section (1) of Section 25 of the Act. 4.The Collector, Mayurbhanj, during the course of hearing took evidence of the parties and also considered a report of the B.D.O., Kusumi, O.P.3, which had been called for by him and on consideration of the materials passed the order declaring the petitioner disqualified under Clauses (t) & (v) of Sub-Section (1) of Section 25 of the Act. 5.Mr. 4.The Collector, Mayurbhanj, during the course of hearing took evidence of the parties and also considered a report of the B.D.O., Kusumi, O.P.3, which had been called for by him and on consideration of the materials passed the order declaring the petitioner disqualified under Clauses (t) & (v) of Sub-Section (1) of Section 25 of the Act. 5.Mr. Das, learned counsel for the petitioner, while assailing the impugned order has raised the contention that the report of the B.D.O., Kusumi, on which much reliance has been placed by the Collector, Mayurbhanj, having not been served on the petitioner, he was not in a position to know about its contents, and therefore, he was unable to meet them, which amounts to violation of principle of natural justice. In this respect, he has relied on a decision of this Court in the case of Smt. Pabani Gajendra v. State of Orissa and others : 2005 (II) OLR 686 . His other contention is that the petitioner had filed a petition before the Collector, Mayurbhanj during the proceeding to issue summons to two persons, namely, Arjun Mandal and Gokul Mahakud for their evidence since those two persons are witnesses to recovery of the foster child from the river bed, which is said to be the third child of the petitioner and that the said petition having been illegally rejected, the petitioner was not in a position to prove his case. The last contention of the petitioner is that since the rent payable by him to the Grama Panchayat cannot be said to be amount “accrued due” to the Grama Panchayat from the petitioner, it cannot be said that he has incurred disqualification under Clause (t) of Sub-Section (1) of Section 25 of the Act. 6.Learned counsel for O.P. 4, Mr. Routray, with reference to his counter affidavit and learned Additional Standing Counsel for the State have submitted that the petition for summoning the two witnesses filed by the petitioner before the Collector, Mayurbhanj was rejected by order dated 23.2.2013, which was also challenged by the petitioner in an earlier writ petition bearing W.P.(C) No.7519/2013 but since this Court was not inclined to interfere with the same, the petitioner withdrew the said writ petition, and therefore, it is not open to the petitioner to raise the same question again in the present writ petition. It is further submitted by the learned counsel for the opposite parties that the petitioner having not denied that he was in arrears of rent in respect of the shop room taken by him on rent and having not been able to prove that the Secretary of the Grama Panchayat refused to receive the rent from him he must be held to be in arrears of dues payable to the Grama Panchayat, and therefore, he has been rightly found disqualified by the Collector. 7.It is appropriate to consider the propriety of the Collector’s order with regard to the disqualification of the petitioner under Clause (t) of Sub-Section (1) of Section 25 of the Act at the first instance. The said provision is re-produced herein below :- “Section 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 - (t) is in arrear of any dues payable by him to the Grama Panchayat.” 8.Apart from submitting that the amount of rent cannot be said to be “accrued due”, it is stated by the learned counsel for the petitioner that the same amount can be recovered in accordance with the provision of Section 102 of the Act and the petitioner is still ready and willing to pay the same to the Grama Panchayat. 9.It is apparent from Clause (t) of Sub-Section (1) of Section 25 of the Act that a person incurs disqualification, if he is in arrear of dues payable by him to the Grama Panchayat. This provision has been incorporated in the Act by way of amendment by Orissa Act No.4 of 1993. It is not the requirement of provision any more that the dues payable by the person concerned to the Grama Panchayat must have “accrued due”. Therefore, the contention raised by the learned counsel for the petitioner has no force. Similarly, the provision of Section 102 of the Act only provides for the manner and procedure, in which the arrear dues can be recovered. Even if no proceeding for recovery in terms of Section 102 of the Act has been initiated, it cannot be said that the arrear is not due to the petitioner. Similarly, the provision of Section 102 of the Act only provides for the manner and procedure, in which the arrear dues can be recovered. Even if no proceeding for recovery in terms of Section 102 of the Act has been initiated, it cannot be said that the arrear is not due to the petitioner. On his own admission the petitioner has stated that he offered the rent to the Secretary of the Grama Panchayat but he did not receive it because of pendency of the civil suit. Rather the judgment in the said suit filed by O.P.4 as Annexure-A/4 to her counter affidavit reveals that the said suit filed by some persons against the Grama Panchayat has been dismissed already on 15.5.2013. The petitioner except his bare statement has not led any evidence to show that, in fact, the Secretary of the Grama Panchayat refused to accept the rent. There is neither pleading nor any evidence as to when and how many times the petitioner offered the rent to the Secretary, and even if the Secretary refused he could have sent it by Money Order to show his bona fides. There being no acceptable evidence with regard to the fact that the petitioner offered the rent and the Secretary refused to accept and he being admittedly in arrear of rent since prior to the date of filing of the nomination for the election, he has definitely incurred the disqualification under Clause (t) of Sub-Section (1) of Section 25 of the Act. 10.So far as the challenge to disqualification under Clause (v) of Sub-Section (1) of Section 25 of the Act is concerned, even though there is violation of principles of natural justice for non-supply of a copy of the report of the B.D.O., Kusumi to the petitioner, as held by this Court in Smt. Pabani Gajendra (supra), and even if the finding with regard to the third child of the petitioner cannot be sustained for that reason, still then since the petitioner has been found to have incurred disqualification for being in arrears of dues payable to the Grama Panchayat in terms of Clause (t) of Sub-Section (1) of Section 25 of the Act, no relief can be granted to him in the present writ petition. Accordingly, the writ petition is dismissed. No costs. Petition dismissed.