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2016 DIGILAW 204 (ORI)

Jitendra Muduli v. State of Orissa

2016-03-14

BISWAJIT MOHANTY, PRADIP MOHANTY

body2016
JUDGMENT : Biswajit Mohanty, J. The present writ appeal has been filed by the appellant to set aside the order dated 13.3.2013 (Annexure-3) passed by the Collector, Nabarangpur (respondent No.2) and order dated 27.1.2016 passed by the learned Single Judge in W.P. (C) No.5773 of 2013. 2. The facts in this appeal are as follows: The appellant was elected as Sarpanch of Gouda Deopalli Grama Panchayat under Tentulikhunti Block of Nabarangpur District on 17.2.2012. Respondent No.4 filed RMC No.1 of 2013 under Annexure-1 before respondent No.2 under Section 26 of the Orissa Grama Panchayat Act, 1964, for short, “the Act” with a prayer to declare the election of the appellant as Sarpanch of Gouda Deopalli Grama Panchayat as null and void. He further prayed that fresh election be directed to be held in respect of the said Grama Panchayat. According to the respondent No.4, long before the elections were held, the appellant was blessed with three children, namely, Ms. Susila Muduli, Ms. Kanaka Muduli and Mr. Praharaj Muduli. The dates of birth of the above noted two daughters and one son are-29.8.1996, 29.4.1994 and 10.12.2001 respectively. Thus, according to respondent No.4, the nomination paper of appellant should not have been accepted by the authorities as on the date of filing of the nomination, the appellant was disqualified on the ground of having more than two children after the cut-off date. On 19.2.2013 vide Annexure-2, respondent No.2 issued a notice to the appellant to appear on 6.3.2013 for hearing of the case. On 6.3.2013, as per the submission of Mr. Bhokta, learned counsel for the appellant, the case stood adjourned to 12.3.2013 for appearance and filing of show cause. On 12.3.2013, appellant appeared and filed counter. In the counter/show cause, there was no denial of the fact that appellant had begotten three children after the cut-off date. However, appellant prayed for time to submit the documents and respondent No.2 allowed time to the appellant to submit the documents and posted the case to 13.3.2013. On 12.3.2013, appellant appeared and filed counter. In the counter/show cause, there was no denial of the fact that appellant had begotten three children after the cut-off date. However, appellant prayed for time to submit the documents and respondent No.2 allowed time to the appellant to submit the documents and posted the case to 13.3.2013. Relying on the report of Medical Officer, C.H.C., Tentulikhunti which proved that the appellant had got three children on the above noted dates, the respondent No.2 passed the order on 13.3.2013 disqualifying the appellant from the office of Sarpanch as per Section 25 (1) (v) of “the Act” and further directed that the candidate who has obtained the next highest votes be declared elected for the post of Sarpanch of Gouda Deopalli Grama Panchayat with immediate effect. Challenging the same, the appellant filed W.P. (C) No.5773 of 2013 before this Court making a grievance that he was not given adequate opportunity as the report received from the Medical Officer, C.H.C., Tentulikhunti was not served on him. The said matter was taken up by the learned Single Judge who came to hold that since despite specific allegation against the appellant that he had begotten three children after the cut-off date; there was no denial of the above allegation in the show cause/counter filed by the appellant, non-service of report of the Medical Officer on the appellant would not amount to denial of opportunity of hearing as the said report only supported the plea of respondent No.4. In such circumstances, the learned Single Judge came to hold that there was no infirmity in the order under Annexure-3 passed by the respondent No.2 so far as it disqualified the appellant. However, the learned Single Judge set aside the second part of the order of the respondent No.2 wherein it was directed that the candidate obtaining the next highest votes be declared elected. Challenging the order dated 27.1.2016 passed by the learned Single Judge, the present Writ Appeal has been filed by the appellant mainly on the ground that adequate opportunity of hearing was not given to the appellant as he was not given any opportunity to rebut the report submitted by the Medical Officer-in-charge, C.H.C., Tentulikhunti and as he was kept completely in dark about the contents of such report. This was reiterated by Mr.Bhokta, learned counsel for the appellant. However, Mr. B.P. Pradhan, learned Addl. This was reiterated by Mr.Bhokta, learned counsel for the appellant. However, Mr. B.P. Pradhan, learned Addl. Government Advocate and Mr. S.K. Padhi, learned counsel for the respondent No.4 supported the order passed by the opp. party No.2 under Annexure-3 and the order dated 27.1.2016 passed by the learned Single Judge. 3. Heard Mr. Dipti Ranjan Bhokta, learned counsel for the appellant, Mr.S.K.Padhi, learned counsel for the respondent No.4 and Mr. B.P. Pradhan, learned Addl. Government Advocate for the State. 4. After giving our anxious considerations to the submissions made by the parties and on perusal of the records, we are not at all impressed by the arguments of Mr. Bhokta, learned counsel for the appellant. Here is a case, where the main issue revolved around birth of three children of the appellant after the cut-off date and consequent disqualification. For better appreciation, the relevant provision of law, i.e., Section 25 (1) (v) of “the Act” is quoted hereunder for ready reference: “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- (a) is not a citizen of India; 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), [Clause (m) to (p) and Clauses (t) to (v) of Sub-section (1); or xxx xxx xxx xxx” A reading of above provisions would show that a person with more than two children is not qualified for being elected/nominated as Sarpanch of a Grama Panchayat. However, a person who has more than two children on 18.4.1994, i.e., the date of commencement of Orissa Grama Panchayats (Amendment) Act, 1994 is not disqualified for being elected or nominated as a Sarpanch. However, a person who has more than two children on 18.4.1994, i.e., the date of commencement of Orissa Grama Panchayats (Amendment) Act, 1994 is not disqualified for being elected or nominated as a Sarpanch. Similarly a person who begets a 3rd child within a period of one year from 18.4.1994 is also not disqualified for being elected or nominated as a Sarpanch. However, since in the instant case, the first child of the appellant was born on 29.8.1996, the proviso has no application to the present case. Here, though in the petition under Section 26 of “the Act” filed by the respondent No.4 under Annexure-1, it was clearly mentioned that three children were born after the cut-off date, however, there was no denial of the said fact in the show cause filed by the appellant. It is well settled that Court will not insist on observance of principles of natural justice, when the allegations remain undisputed or are admitted. 5. In such background, in our considered opinion, the learned Single Judge has correctly come to a conclusion that non-service of report of Medical Officer on the appellant would not amount to denial of opportunity of hearing which only supported the allegations made by respondent No.4 in his petition under Annexure-1, which remained undisputed. In such circumstances, we do not find any illegality or infirmity in the order of the learned Single Judge upholding the disqualification of the appellant as directed by respondent No.2. Accordingly, the Writ Appeal stands dismissed. No cost.