SARAT CHANDRA MUKHI Vs. MOHAN NAIK

JUDGEMENT

(1.) B. N. MAHAPATRA, J. :- In this writ petition challenge has been made to the judgment and order dated 11-03-2010 passed by learned District Judge, Dhenkanal in Election Petition No. 193 of 2008 filed under the Orissa Municipal Act, 1950 (for short, 'the Act') by which the learned District Judge, inter alia, held that the third child of the writ petitioner was born much after the cut off date as provided under Section 16(1)(xvii) of the Act and as such the petitioner was disqualified from contesting the election for the post of Councillor of Ward No. 6 of Angul Municipality and his election as Councillor from said Ward was invalid.

(2.) SHORN of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner was elected as Councillor from Ward No.6 of Angul Muncipality in the year 2008. In the said election, the petitioner obtained 252 votes whereas O.P. Nos. 1 and 2, who were also contesting the election from the same Ward, obtained 176 and 96 votes respectively. Opp. Party No. 1 filed Election Petition No. 193 of 2008 in the Court of District Judge, Dhenkanal to declare the election of the present writ petitioner invalid on the ground that under Section 16(1)(xvii) of the Act the petitioner was disqualified to contest the election inasmuch as his third child was born after the cut off date. According to the writ petitioner, the third child was born to him much prior to the cut off date as provided under the said Section of the Act and therefore there is no occasion to question his election under that provision. Proforma O.P. No. 3 Sub-Collector-cum-Election Officer in his show cause notice has stated that O.P. No. I did not raise any objection at the time of scrutiny of nomination papers that the date of birth of third child of the present petitioner was after the cut off date. On the above rival pleadings, the learned District Judge framed as many as five issues. While the matter was pending before the District Judge, the present petitioner filed an application under Section 24 of the C.P.C. to transfer the case from the Court of District Judge, Dhenkanal to the Court of Addl. District Judge, Angul, as both parties were residing within the jurisdiction of Addl. District Judge, Angul. The said application was rejected by the learned District Judge, Dhenkanal. Being aggrieved by the said order of rejection, the writ petitioner filed W.P. (C) No. 5736 of 2009 before this Court challenging the said order of rejection. This Court by its order dated 17-08-2009 dismissed the aforesaid writ petition. Thereafter, the writ petitioner filed Writ Appeal No. 183 of 2009 challenging the order of the learned Single Judge. While the said Writ Appeal was pending, the learned District Judge passed the impugned judgment dated 11-03-2010 in Election Petition No. 193 of 2008 and declared election of the present petitioner as Councillor of Ward No. 6 of Angul Municipality invalid on the ground that a third child was born to the petitioner much after the cut off date. Hence, the present writ petition.