Bijay Pradhan vs The Collector and Others

P.K. Misra, J.—The petitioner has challenged the legality of the order passed by the Collector under Annexure-6 holding that the petitioner was disqualified to continue as Sarpanch of Golapada Grama Panchayat.

The petitioner was the Sarpanch of Golapada Grama Panchayat. Initially he was placed under suspension u/s 115 (1) of the Orissa Grama Panchayat Act (hereinafter referred to as the "Act"). However, in exercise of power u/s 115 (3-a) of the Act, the said order of suspension was set aside and the petitioner was restored to office by order dated 7.6.2000 (Annexure-2). The petitioner claims that after such order was passed, the Collector instead of permitting the petitioner to assume office, subsequently passed an order purporting to be one u/s 26 (1) and (2) of the Act. Before passing such order, the Collector had served notice on the petitioner stating that the petitioner had married Kumudini Pradhan and Bengabati Pradhan and a daughter was born on 26.6.1999 which being the fourth child of the petitioner disentitled the petitioner to continue as Sarpanch. After receipt of such notice, the petitioner filed explanation. It was stated that he had not married Bengabati Pradhan and in the absence of any order declaring the status of Bengabati and her children, it cannot be assumed that the children of Bengabati were the children of the petitioner. The aforesaid explanation was filed on 31.7.2000. On the very same day, the following order as per Annexure-6 was passed by the Collector :

"In pursuance of Section 25 (1) (u) & (v) of Orissa Grama Panchayat Act, 1964, I, Smt. Ranjana Chopra, IAS, Collector and District Magistrate, Dhenkanal after considering the report of the Sub-Collector, Hindol, do hereby removed/ disqualified to continue Sri Bijaya Pradhan, Sarpanch, Galapada Grama Panchayat under Hindol P.S. of Dhenkanal district as required u/s 26 (1) and (2) of the Orissa Grama Panchayat Act, 1964, with effect from today i.e. on 31.7.200."

Section 25 of the Act envisages the various disqualifications for being elected or nominated as Sarpanch or member of Grama Panchayat. The relevant provisions contained in Section 25 (1) (u) and (v) and Section 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

.... .... .... (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.

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 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 sou motu or 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."

The afores said provisions make it clear that if a person has more than two children after the appointed date, he can be so disqualified to hold the office. Section 26 (2) makes it clear that the Collector may act sow motu, or on receipt of an application he has to make enquiry as considered necessary and he has to give the person whose disqualification is in question an opportunity of being heard before deciding whether such person is disqualified or not.

In the present case, the Collector had issued notice under Annexure-4. The petitioner was required to remain present at 3.00 P.M. on 31.7.2000. The petitioner filed explanation denying the allegation on 31.7.2000. The order of the Collector does not indicate as to whether there has been any enquiry or not. Even the order does not show the conclusion of the Collector regarding the alleged disqualification. From a perusal of Annexure-6, it is not clear as to whether the Collector found that the petitioner had more than two children on the appointed date and the order appears to be a mere reproduction of the provisions contained in Section 26 (1) and (2) of the Act. Moreover, the Collector has referred to the report of the Sub-Collector. It has been asserted in the writ petition that the report which was utilised by the. Collector has not been furnished to the petitioner and as such, the petitioner was not in a position to explain anything about the report. It is thus evident that the Collector has acted upon materials which had been collected behind the back of the petitioner and for which no opportunity had been given to the petitioner for explaining. Section 26 (2) envisages that an opportunity of being heard should be given. In other words, if any evidence or material is to be considered that should be in presence of the petitioner and he should be given opportunity of explaining such adverse material. Since in the present case, the Collector has relied upon a material which had been collected behind the back of the petitioner and an opportunity of being heard had not been given, the order under Annexure-6 cannot be sustained and is accordingly quashed. It would be open to the Collector to give further opportunity to the petitioner in accordance with Section 26 (2) of the Act and thereafter take a fresh decision in the matter in accordance with law.

The writ application is allowed. There will be no order as to costs.