Jitendra Muduli vs State of Orissa

B.K. Nayak, J.—Heard learned counsel for the petitioner, learned Additional Standing Counsel and learned counsel appearing for opposite party

No.4.

The petitioner challenges the order dated 13.03.2013 passed by the Collector, Nabarangpur in RMC No.01 of 2013 declaring the petitioner,

who was elected Sarpanch of Gouda Deopalli Grama Panchayat in the district of Nabarangpur, disqualified under section 25(1)(v) of the Orissa

Grama Panchayat Act, in exercise of power under section 26 of the said Act.

Complaint was lodged by the present opposite party no.4 alleging that the petitioner was disqualified under section 25(1)(v) of the Act since she

begot three children after the cut off date i.e. 18.04.1994. It was specifically mentioned in the complaint that two daughters were born to the

petitioner on 29.08.1996 and 24.04.1999 and a son was born to him on 10.12.2001. On receipt of notice the petitioner filed his show cause

stating that the complainant being not a Sarpanch, nor a Naib Sarpanch, nor a Ward Member of the G.P. he has no locus standi to file complaint

and that the disqualification as alleged is a pre-election disqualification and therefore the Collector had no jurisdiction to entertain such complaint in

a proceeding under section 26 of the Orissa Grama Panchayat Act. The Collector took up enquiry suo motu. The complainant also submitted

documents, such as, information received under RTI Act from Community Health Centre, Tentulikhunti under Letter No.282 dated 08.10.2012,

copies of Nomination paper and affidavit of the petitioner, copy of transfer certificate granted by U.P.School vide T.C.No.7188. On consideration

of the report received from the Community Health Centre along with copies of documents the Collector was satisfied that the petitioner begot three

children on 29.08.1996, 24.04.1999 and 10.12.2001 which were after the cut off date and the documents further revealed that the petitioner

falsely represented before the Election Officer that he has no spouse.

The Collector thus declared the petitioner disqualified under section 25(1)(v) of the OGP Act and at the same time also directed that the

candidate obtaining the next highest votes be declared elected for the post of Sarpanch of Gouda Deopalli G.P.

Learned counsel for the petitioner submits that no adequate opportunity of hearing was given to the petitioner and the copy of the documents

and report received from the CHC were not served on him and therefore the said documents could not have been relied upon by the Collector. It

is further submitted by him that within the scope of Section 26 of the Act the Collector has no power to declare the candidate obtaining next

highest vote as elected Sarpanch. With regard to non service of copies of documents, particularly the report received from the Medical Officer,

CHC, he has relied upon the decision of this Court reported in 2005(1) OLR 411 Smt. Pramila Pradhan v. State of Orissa and another.

It appears from the order sheet of the Collector''s records that after notice the case had been fixed to 12.03.2013 for filing of show cause and

on that date both the parties appeared so also the Government Pleader. The writ petitioner filed his counter/show cause and advocate for opposite

party no.4 filed hazira and requested for adjournment for submitting further documents and the case was posted to 13.03.2013 on which date

advocate for both the parties were heard. The report submitted by the Medical Officer in-charge, Community Health Centre, were perused along

with other documents and on the same day the impugned order was passed.

Decision in Smt.Pramila Pradhan (supra) on which the learned counsel for the petitioner relied upon is one where in the show cause filed by the

disqualified Sarpanch before the Collector, the allegation made against her were specifically denied and therefore, it was held that non-service of

enquiry report on the basis of which the proceeding was drawn, on the elected Sarpanch was tantamount to not giving adequate opportunity to

rebut the contents of the report.

In the present case, it was specifically alleged that the petitioner begot three children after the cut off date, and the birth dates of the children

were stated specifically. There is no denial of the said fact in the show cause filed by the petitioner. On the other hand, a plea was taken that the

aforesaid disqualification was a pre-election disqualification which was not within the jurisdiction of the Collector to enquire within the scope of

section 26 of the OGP Act.

Since there is no specific denial of the disqualification as alleged against the petitioner, non-service of a report of the Medical Officer on the

petitioner would not amount to denial of opportunity of hearing. The report submitted by the Medical Officer, C.H.C. was fully in consonance with

the allegations made in the complaint with regard to birth of three children to the petitioner much subsequent to the cut off date. In such

circumstances, I find no infirmity in the order declaring the petitioner disqualified.

So far as the other declaration that the candidate securing next highest votes be declared as elected Sarpanch is concerned, this court is of the

view that within the scope of Section 26 of the OGP Act, the Collector has no power to make such declaration. Therefore, I set aside the said

declaration.

The writ application is accordingly disposed of.