RAMAKANTA DOLAI Vs. BIPIN BIHARI HIAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 6.12.2003 passed by the learned District Judge, Koraput, Jeypore in Misc. Judicial Case No. 36 of 2002 declaring the election of the appellant as a Member of Koraput Zilla Parishad for Dasamantapur Zilla Parishad Constituency No. I as invalid and illegal, declaring the nomination of respondent No. 2 as invalid, declaring the nomination of respondent No. 2 as invalid and further declaring the respondent No. 1 as elected as Member to Koraput Zilla Parishad form the aforesaid Constituency.

(2.) RESPONDENT No. 1 filed the election petition before the learned District Judge under Section 32 of the Orissa Zilla Parishad Act for a declaration that the election of the appellant as Member of the Zilla Parishad, Koraput form Dasamantapur Zilla Parishad Constituency No. I is invalid and illegal. The other prayer relates to respondent No. 2 who has expired in the meanwhile. Case of the respondent No. 1 is that in the Panchayati Raj Election of 2002, nomination papers were filed for election to the office of Members to Koraput Zilla Parishad form Dasamantapur Zilla Parishad Constituency No. I. Respondent No. 1 was a B.J.D. candidate whereas the present appellant was a Congress -I candidate. On 21st January, 2002, during scrutiny of nomination paper by the designated Election Officer -cum -Sub -Collector, Koraput, respondent No. 1 placed a written objection for rejection of the nomination paper filed by the appellant on the ground that he has begotten four children out of whom one was born after the cut off date. According to respondent No. 1, the appellant has four children and the first child Parameswar Dolai was born on 30.6.1981, the second child on 6.8.1986, the third child in 1991 and the fourth child, a daughter, on 13.2.1996. The specific case of the respondent No. 1 was that the fourth child was born after the cut off date and therefore the appellant was disqualified to contest for the post. However, the objection raised by respondent No. 1 was not accepted and the election took place on the 21st of February, 2002. The appellant was declared elected on 1.3.2002. The election petition was filed for declaring the election of appellant as invalid only on the above ground.

(3.) SHRI Indrajit Mohanty, learned counsel appearing for the appellant, submitted that the only question that is required to be determined in the appeal is as to whether the appellant had four children and as to whether the fourth child was born after the cut off date. Referring to the evidence adduced on behalf of the parties, it was contended by Shri Mohanty that there is no material to show that the first two children referred to in the election petition are of the appellant and rather, on the other hand, the evidence adduced on behalf of the appellant clearly indicate that the first two children referred to in the election petition are of Ramachandra Dolai who happens to be the elder brother of the appellant. It is also contended by Shri Mohanty that since the appellant had only two daughters, even if it is accepted that the second child was born after the cut off date, he cannot be declared as disqualified to contest in the election. The learned counsel for the respondent No. 1, on the other hand referring to the evidence on record, submitted that materials have been placed before the trial Court to show that the appellant had four children and the last child was born after the cut off date and the same having been accepted by the trial Court, there is hardly any scope for this Court to interfere in this appeal.