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2020 DIGILAW 80 (ORI)

Jogo Bhatra v. State of Odisha

2020-03-05

D.DASH

body2020
JUDGMENT : D. Dash, J. 1. The petitioner, by filing this writ application, seeks to assail an order dated 31.12.2019 passed by the Collector and District Magistrate, Nabarangpurin R.M.C. (GP) Case No. 6 of 2017 in an enquiry held by him under section 26 of the Odisha Grama Panchayat Act, 1964 (hereinafter, referred to as 'the OGP Act') in holding the petitioner, the elected Sarpanch of Kanakote Grama Panchayat as disqualified under clause (v) read with the proviso under sub-section (1) of section 25 of the OGP Act. 2. The opposite party No. 6 had submitted a petition before the Collector that this petitioner has begotten third child after the cut off date and, therefore, is disqualified to hold the Office of Sarpanch. He has also stated that when on 17.01.2017, this petitioner had filed his nomination, he had raised the objection to the same praying for its rejection on the ground of his disqualification having begotten the third child after the cut off date, i.e. 18.04.1994 which had been illegally turned down. 3. The Collector, on receipt of the above petition, had issued the notice to the petitioner and after hearing and on going through the documents, as have been referred to in the order, has held that the petitioner is disqualified to hold the Office of Sarpanch of Kanakote Grama Panchayat as his third child has been born on 22.04.1994 making him disqualified under Clause (v) read with the proviso under sub-section (1) of section 25 of the OGP Act 4. Section 26 of the OGP Act reads as under: "26. Procedure of giving effect to disqualifications:- (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 Sarpanch 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 application 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 an 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 publication he shall be entitled to act, as if he was not disqualified." On a plain reading of the aforesaid provision, it reveals that the same has no concern with declaring the election void or as to improper acceptance of nomination or granting any consequential declaration as to who has been duly elected. It enables the Collector in rendering a decision on the question of disqualification of a member of the Grama Panchayat on receiving an allegation that he is or has become disqualified and he can also suo motu make such enquiry in that direction 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 then make an order in that behalf which shall be final and conclusive. 5. It has been held by the Full Bench of this Court in the case of Debaki Jani V. The Collector and another, 2014 (I) OLR (FB) 867 that:- "9. While under sub-section (1) of Section 26 of the Act, the categories of persons enumerated therein apply to the Collector for a decision on the allegation or doubt whether or not he is or has become so disqualified; under sub-section (2) the Collector may suo motu or on receipt of an application under sub-section (1), make an enquiry as he considers necessary. The power of the Collector to enquire into the matter suo motu cannot be cabined, cribbed or confined. The power-is wide enough. But then the same cannot be exercised "in a routine manner. The power has to be exercised with great care and circumspection. In the elegant words of Benjamin N. Cardozo in the legal classic "The Nature of the Judicial Process". "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. But then the same cannot be exercised "in a routine manner. The power has to be exercised with great care and circumspection. In the elegant words of Benjamin N. Cardozo in the legal classic "The Nature of the Judicial Process". "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness.' He is to draw his inspiration from consecrated principles. He is not yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains". The Collector has to prima facie satisfy himself and apply his mind before issuing any notice to the person whose disqualification is in question. The only rider is to observe principles of natural justice. The legislature in its wisdom thought it proper to grant ample power to the Collector to see that purity and sanctity in the election process is maintained and no unqualified person holds the post. The same also does not exclude any other person to bring the notice of the Collector about the disqualification incurred by any Sarpanch or Naib-Sarpanch or any other member of the Grama Panchayat. The Collector exercising the suo motu power is not debarred from obtaining information and materials from various sources." Thus, it has been the settled position that the Collector has to prima facie satisfy himself by applying his mind before issuance of the notice and in the matter; he has to observe the principles of natural justice. This power has been bestowed upon the Collector in order to maintain the purity and sanctity in the election process and see that no unqualified person, in terms of the OGP Act, clings to the post which strikes at the most fundamental principle of democratic set up and for that only legislature has enacted the provision relating to qualification and disqualification of a candidate in contesting the election for the Office of the Institution and the law having frowns upon a disqualified person to continue in the post even though he has been elected by huge support of voters. It has been clarified in the above decision that the Collector, in exercising said power, is not debarred from obtaining information and materials from various sources for their consideration in proper perspective. 6. Heard learned counsel for the petitioner, learned counsel for the State and learned counsels for the opposite parties 4 to 6 as also for the opposite party No. 7. I have carefully gone through the impugned order passed by the Collector. 7. Before going to take note of the rival submissions of the learned counsels for the parties; it would be apposite to first place the scope of interference with the said finding of the Collector arrived at in an enquiry under section 26 of the OGP Act. The enquiry as contemplated under section 26 of the OGP Act is distinct from the trial of an Election petition as provided under section 30 of the OGP Act which as per sub-section 1 of section 30 of the OGP Act are tried as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits subject to the provisions of OGP Act and the rules made thereunder, especially under sub-section 2 to 8 of the Act. The statute however does not make any provision for filing an appeal against the said decision of the Collector in that enquiry unlike the provision contained in sub-section-4 of section 38 of the OGP Act providing right of appeal against the decision in the election petition. In the above legal premises, the scope of interference with a finding of fact returned by the Collector in an enquiry held under section 26 of the OGP Act, is not that wide as if in seisin of an appeal and it is limited to the extent that whenever a finding of fact has been rendered by the Collector in that enquiry upon consideration of the evidence/materials on record, the same can only be interfered with when there surfaces any such manifest illegality or is the outcome of perverse appreciation of evidence/materials on record that if such a finding is allowed to stand, it would amount to failure of justice. In that exercise, thus it is always to be guarded that merely because another view is possible to be taken on the materials/evidence on record, that cannot be the basis for upsetting the factual finding standing so impugned unless there appears manifest error of law or procedure or the conclusion reached by the Collector is, on the face of it, perverse. One important aspect is also to be kept in mind that here the enquiry is as to the disqualification of a member of the Panchayat Samiti now having its root to Part-IX of the Constitution of India brought in by 73rd Constitutional Amendment providing a three tire structure of Panchayat Administration for strengthening the perambular vision of Democratic Republicanism in giving the Panchayat Raj Institutions, constitutional status, as a third Government finding place in Article 243B of the Constitution. It is trite that the right to contest the election is a statutory right but for exercising such a right, the persons should be qualified in terms of the statute and so also to continue in the office as such, he should not be subject to any disqualification as may be imposed by the statute in making provision for the elective office with distinct role to play and, therefore, it is expected from them that they would maintain the purity and integrity; also in not incurring any such disqualification during the period or else to face the ouster in making the exit. It cannot thus be said that once being elected, notwithstanding the incurring of disqualification, as prescribed, the person so elected is secured of holding the office for the fixed term. The whole" object is to see that said elected persons maintain the dignity of the office and purity in public life so as to earn the confidence of the people throughout Thus in my considered opinion, the sustainability of the factual finding under challenge is required to be examined within the scope as aforesaid as also in the backdrop of the above set-forth objective. 8. The case stands against the petitioner is that he has three children and the last one was born after the cut off date, i.e., 18.04.1994. The three children are namely, Jamubati Bhatra, DOB-15.10.2004, Tulabati Bhatra, DOB 30.08.2008 and Akash Bhatra, DOB-02.02.2012. The birth register maintained by the Anganwadi Worker, Kanakote Anganawadi Centre shows the entries relating to the birth of those three children. The three children are namely, Jamubati Bhatra, DOB-15.10.2004, Tulabati Bhatra, DOB 30.08.2008 and Akash Bhatra, DOB-02.02.2012. The birth register maintained by the Anganwadi Worker, Kanakote Anganawadi Centre shows the entries relating to the birth of those three children. The copy of the same has been filed as Annexure-3. At serial No. 65, the name of the child Jamubhati Bhatra finds place indicating his father's name as Jogo. At serial No. 90, name of Akash Bhatra finds place and his father's name although appears to have been crudely overwritten, yet there being absence of prior planning and with a view that over writing in any shape would render it impossible for acceptance, some openings still remains making it quite possible to even read and original writing within little pain. Be that as it may, a close examination even in the naked eye goes to show that father's name had been initially written as Jogo Bhatra. Inviting the attention of this court to the statement of the Anganawadi Worker, namely, Binodini Nanda elicited during cross-examination by this petitioner, learned counsel for the petitioner submits that she has admitted to have made the overwriting and thus its for no use in the matter of the dispute that Akash Bhotra was born to the petitioner on 02.02.2012. She has however clearly stated the names of all the three children as also their respective dates of birth and the name of their father to be 'Jogo Bhatra' and mother as 'Baidehi Bhatra'. It has been further stated by her that there is no other person in those names in Kanakote village. The Block Education Officer, Jharigram being asked by the Collector to verify and check the genuineness of the admission register produced by the opposite party No. 4, which had been obtained under the Right to Information Act from the Headmaster of Kanakote PUP School, Kanakote and Principal BVN Public School, Chatiguda, has checked and verified those with reference to the copies obtained and found all those to be correct. Accordingly, the Block Education Officer has given the report. Accordingly, the Block Education Officer has given the report. The Child Development Project Officer, Jhangam in her letter dated 10.07.2017 has stated to have conducted a joint enquiry with the concerned supervisor of Anganawadi Centre as regards the children of the petitioner which stand to support the said facts as to the petitioner having three children and the last one being born on 02.02.2012 The Collector has verified the admission register produced by the Additional Block Education Officer, Jhangam and has found that Damini Bhatra was admitted on 11.04.2016, Jasmini Bhatra had been admitted on 05.04.2013 and the name of this petitioner has been mentioned as their father So from this, the Collector has found that Damini and Jasmini are two children of the petitioner. The application form of BVN Public School being placed before the Collector; its genuineness has been verified through the Block Education Officer and therein, the date of birth of the male child, namely, Akash Bhatra born to this petitioner and his wife Baidehi Bhatra is mentioned as 01.02.2012. So, even keeping the birth register maintained by the concerned Anganawadi Worker aside for a moment and ignoring the same; on verification of several other documents, the Collector has ascertained the fact that the petitioner has three children with the last one born after the cut off date. 9. In the instant case, the petitioner in the enquiry has been noticed. He has entered appearance through his learned counsel and has participated in the enquiry. It appears that in the said enquiry before the Collector, the petitioner has been given due opportunity of hearing and the learned counsel for the petitioner has also been given the opportunity to cross-examine that Anganwadi Worker examined during the enquiry whose statement has been recorded by the Collector. The written note being accepted has been perused. It appears that in the said enquiry before the Collector, the petitioner has been given due opportunity of hearing and the learned counsel for the petitioner has also been given the opportunity to cross-examine that Anganwadi Worker examined during the enquiry whose statement has been recorded by the Collector. The written note being accepted has been perused. In the case of 'Ahalya Mangaraj V. State of Orissa and others; 2006 (II) OLR 411 , cited by the learned counsel for the petitioner; this Court in the factual settings of said case, found that on the basis of the two reports of the Child Development Project Officer (CDPO) and District Panchayat Officer (DPO), the Collector, without holding any enquiry, simply hearing the arguments from the side of the parties and without even noticing the glaring infirmity that years of birth of two children of the petitioner therein had been shown to be in one year which was not receiving any such explanation had passed the order. So, it was held that the order was not the outcome of proper enquiry providing due opportunity of hearing to the petitioner. In the cited case of 'Sri Gouranga Chandra Padhi V. State of Orissa and others; 2002 (Supp) OLR 948, the Collector on perusal of the documents and the contentions in the written note vis-a-vis, the report of the Cub-Collector had found that the certificates of different authorities to be overlapping with each other relating to the proof of birth of the third-child after the cut off date. So, the Collector had asked for a report from the Medical Officer of the concerned Primary Healthy Centre (PHC). The Medical Officer when submitted the report that the petitioner has three children, the Collector had rejected the claim of the petitioner in finally passing the order of disqualification of the petitioner. In that event, the Court held that when the documents relied upon by the parties were inconsistent and contradictory to each other; the Collector should have provided an opportunity to the petitioner by allowing him to cross-examine the persons who made statements and reports against him so also relating to the correctness of the documents relied upon by the intervener and Enquiry Officer. None of the above or any such other situation in that light being seen in instant case. None of the above or any such other situation in that light being seen in instant case. The cited decisions do not come to the aid of the petitioner inasmuch those were on different factual settings and happenings during enquiry as detailed above. 10. In view of the foregoing discussions, no such glaring mistake is seen in the approach of the Collector in conducting the enquiry under section 24 of the OGP Act and there surfaces no such infirmity in arriving at the conclusion of the Collector that the petitioner is disqualified under clause (v) read with the proviso thereto under sub-section (1) of section 25 of the OGP Act. 11. In the result, the writ application questioning the order dated 31.12.2019 passed by the Collector, Nabarangpur disqualifying the petitioner under clause (v) read with the proviso thereto under sub-section (1) of section 25 of the OGP Act stands dismissed. No order as to cost.