RAJKISHORE DALAI Vs. KALANDI PRADHAN

JUDGEMENT

(1.) In this Writ Petition the petitioner has assailed the order dated 23.4.2004 passed by the Learned Addl. District Judge, Nayagarh in Election Misc. Appeal No. 1 of 2004 affirming the order dated 16.1.2004 passed by the Learned Civil Judge (Junior Division), Nayagarh allowing the Election Misc. Case No. 17 of 2002 filed by the present Opp. Party No. 1 declaring the election of the petitioner as Sarpanch of Baghuapalli Grama Panchayat null and void.

(2.) BEREFT of unnecessary details the fact leading to the present writ petition is that in the election held for the post of Sarpanch, Baghuapalli Grama Panchayat in the year 2002 the petitioner, Opp. Party No. 1 and others had filed their nomination papers and accordingly contested the election. The petitioner having polled the highest number of votes was declared as elected Sarpanch of the Baghuapalli Grama Panchayat and was allowed to assume the office of Sarpanch. Opp. Party No . 1 who had polled third highest votes filed a petition under Section 31 of the Orissa Grama panchayat Act (hereinafter referred to as 'the act') before the learned Civil Judge (Jr. Division), Nayagarh vide Election Misc. Case No. 17 of 2002 with a prayer to declare the election of the petitioner as null and void basically on the plea that the petitioner had more than two children on the date of filing nomination paper for the election and was disqualified under the provision of Section 25(1)(v) of the Act. Opp. Party No. 1 also simultaneously filed a petition under Section 5 of the Limitation Act praying the court to condone the delay in presentation of the petition under Section 31 of the Act with a plea that due to illness and intervening summer vacation, he could not present the petition within the prescribed time. The petitioner appeared and filed written statement refuting the allegation of Opp. party No. 1 and pleading inter alia that the disqualification provided under Section 25(1)(v) of the Act is not applicable to him as twin children were born in the second conception of his wife. He also challenged that the petition of Opp. Party No. 1 filed under Section 31 of the Act is barred by limitation and there is no ground to condone the delay. Considering the pleadings of the parties learned Civil Judge (Jr. Division), Nayagarh framed as many as five issues and received evidences of the parties. The present Opp. Party No. 1 as petitioner in the election petition examined five including himself and produced number of official and private documents which were marked Exts. 1 to 14. The present petitioner as Opp. Party No. 1 examined ten witnesses including himself but did not adduce any documentary evidence. After considering the oral and documentary evidence adduced by the parties learned Civil Judge came to hold that there is good ground for condonation of delay in presentation of the Election Misc. Case. He also held that the present petitioner had three children on the date of nomination and was disqualified under Section 25(1)(v) of the Act. He accordingly declared the election of the petitioner null and void. Aggrieved, the petitioner carried Election Misc. Appeal No. 1 of 2004 before the learned Addl. District Judge, Nayagarh. The said appeal having been dismissed and the order passed by the Learned Civil Judge (J.D.), Nayagarh in Election Misc. Case No. 17 of 2002 confirmed, petitioner has filed the present Writ Petition with a prayer to quash the judgements of Election Misc. Case No. 17 of 2002 and Election Appeal No. 1 of 2004 annexed to the Writ Petition as Annexures 3 and 4.

(3.) MR . A.K. Acharya, Learned Counsel for Opp. Party No. 1 while supporting the impugned judgments submitted that the provision of Section 25(1)(v) of the Act being specific and no exception having been provided, any person having more than two children stands disqualified from contesting an election for Ward member or Sarpanch of a Grama Panchayat.