BRAJA MOHAN MANGARAJ Vs. DURYODHAN PRADHAN

JUDGEMENT

(1.) ORDER of the learned District Judge, Khurda at Bhubaneswar passed on 09.08.2004 in Election Misc. Case No. 114 of 2002 registered under Section 45 -B of the Orissa Panchayat Samiti Act, 1959 (in short 'the Act 1959') in disqualifying the writ petitioner, who was opp. party No. 3 in the Court below, to hold the post of Samiti Sabhya (Panchayat Samiti Member) of Haripur Grama Panchayat as well as the post of Chairman of Jatni Block is under challenge.

(2.) OPP . Party No. 1 filed the above Election Misc. Case inter alia alleging disqualification of the petitioner on the ground that the 3rd child of the petitioner was born on 25.05.1998 and, therefore, in view of provision of law in Clause (v) of Section 45 of the Act 1959, petitioner was not eligible to contest and hold the post as a member of the Panchayat Samiti or the Chairman of the Block. According to the case of the Opp. Party No. 1, petitioner (O.P.W. No. 4) married to Santilata (O.P.W. No. 3) in the year 1991 and out of the wedlock they were blessed with three children. Amongst them, the eldest daughter Baijayantimala was born on 19.06.1994, the second daughter Baisali was born on 06.06.1996 and the third issue, i.e., a son namely Biswabhusan was born on 25.05.1998. That disqualification was brought on Statute Book vide Orissa Act No. 7 of 1994 and a period of one year had since expired much before 25.05.1998, therefore the petitioner was disqualified to hold both the above noted posts. That contention of the Opp. Party No. 1 was contested by the petitioner. In that context, his contention in the Court below was that Baijayantimala was not born out of the wedlock between him and Santilata, but she is the natural born daughter of Gadadhar Mangaraj (O.P.W. No. 1). Said Gadadhar suffered from leprosy and therefore, to avoid difficulty in her marriage, petitioner adopted her as a daughter when she was about six months old. By then, petitioner was a bachelor. He denied to the allegation of his marriage in the year 1991 and stated that he married to Santilata in the year 1995 and, therefore, Baijayantimala who was born in the year 1994, cannot be counted as his daughter.

(3.) BOTH the parties led evidence in support of their respective contentions. The Opp. Party No. 1. besides examining himself as P.W. No. 2 also examined three more witnesses and relied on four documents marked as Exhibits 1 to 4. Out of the other witnesses. P.W. No. 1 was the Headmaster of the School where both the girls undertake their study. For the circumstances noted in the impugned judgment and stated at a later part of this judgment, P.W. No. 1 was treated as a hostile witness to the Opp. Party No. 1 and the Court below permitted to put leading questions to him. P.W. No. 3 was the Sarpanch of Haripur Grama Panchayat and P.W. No. 4 claimed to be a relative of petitioner as agnatic nephew. Amongst the exhibited documents, Ext.1 is the certificate granted by the Registrar of Birth and Death and Executive Officer, Jatni Municipality relating to birth of a male child in the family of the petitioner on 25.05.1998, Ext.2 is the order passed by the S.D.J.M., Bhubarieswar in I.C.C. Case No. 322 of 2003 relating to the complaint that petitioner committed theft of the Admission Register from the School of P.W. No. 1, Ext.3, an affidavit dated 26.03.2002 filed by P.W. No. 3 regarding the fact that petitioner is disqualified for having three children and Ext.4, a copy of the Voter List of the year 1995 showing that Santilata is the wife of the petitioner.