BIJAY PRADHAN Vs. COLLECTOR

JUDGEMENT

(1.) 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.

(2.) THE petitioner was the Sarpanch of Golapada Grama Panchayat. Initially he was placed under suspension Under Section 115 (1) of the Orissa Grama Panchayat Act (hereinafter referred to as the 'Act'). However, in exercise of power Under Section 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 Under Section 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 :

(3.) 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.