GYANA SUNDARI PRADHAN Vs. CHANDRAMA PRADHAN

JUDGEMENT

(1.) The writ petitioner and opposite party No. 1 are respectively the defeated and successful candidates in the election to the post of Chairman of G. Udayagiri Block in the district of Kandhamal (Phulbani). Petitioner filed Misc. Judicial Case (Election) No. 20 of 2002 in the Court of Civil Judge (Sr. Division) -cum -Election Commissioner, Balliguda to set aside the Election of opposite party No. 1 as the Chairman of the Panchayat Samiti and also to declare her (petitioner) as elected Chairman of the said Panchayat Samiti, Learned Civil Judge by Judgement dated 31.10. 2003 allowed that Misc. Judicial Case in part by setting aside the election of Opposite party No. 1 as Member of Panchayat Samiti from Malikpadi Grama Panchayat and consequentially as the Chairman of G. Udayagiri Block but notified a casual vacancy as a consequence of that order. As against that order, opposite party No. 1 preferred Election Appeal No. 16 of 2003 and the petitioner preferred Election Appeal No. 1 7 of 2003 in the court of the District Judge. Phulbani. Opposite party No. 1 challenged to the decision of the Civil Judge by which she was found disqualified on the ground of having three children. Petitioner prayed to declare her as elected in place of descated opposite party No. 1. Learned District Judge heard argument of both the appeals on the same date and delivered separate Judgements in the appeals on 8.7.2004. It would have been appropriate for Learned District Judge to hear both the appeals analogously and dispose of the same by a common judgement when the parties are same and dispute is same.

(2.) PETITIONER has filed W.P.(C) No. 7707 of 2004 challenging to the Judgement in Election Appeal No. 16 of 2003 (which was field by opposite party No. 1) and W.P.(C) No. 7706 of 2004 challenging to the Judgement passed in Election Appeal No. 17 of 2003 (in which she was the appellant). Both the cases were taken up for hearing analogously and are disposed of by this common judgement.

(3.) IN support of their respective pleas, both the parties adduced oral and documentary evidence. On assessment of such evidence Learned Civil Judge found that in view of the ratio in the case of Suresh Kumar Azad v. State of Orissa and Ors. 1993 (I) OLR 563, the proceeding under Section 44 -A of the Act is maintainable even while challenging the Election of a person. to the post of Chairman. In view of the observation of this Court, while disposing of the Misc. petition of the petitioner and the evidence of the petitioner explaining the delay, Learned Civil Judge found sufficient cause to condone the delay and accordingly held that the election petition was not liable to be dismissed on the ground of limitation. Learned Civil Judge referred to the evidence and in view of the entry in the Admission Register (Exts. 1 and 2) and the Certificates of Birth (Ext. 3 to 6) and the oral evidence of the witnesses, he was of the opinion that opposite party No. 1 has not been able to prove that she was a spinster by 20.1.1995 and that the voter list (Ext. A) is not sufficient to warrant such a presumption in her favour though there is some evidence to indicate that there is one Renuma Pradhan; but non -cross -examination of O.P.W. No. 3 and no convincing evidence coming from the side of opposite party No. 1 together with appropriate plea in a counter filed, it cannot be said that husband of opposite party No. 1 had another wife named Runuma. Since the P.Ws. deposed that opposite party No. 1 is the mother of those children, the same is acceptable, because such persons are resident of neighbouring village and are reliable. The allegation of booth capturing at the time of election of Chairman remained not proved. On the basis of such findings Learned Civil Judge disqualified the petitioner to hold the post of Member of the Panchayat Samiti and consequently the post of Chairman of the Panchayat Samiti. He found a causal vacancy of Samiti Member from Malikpada Grama Panchayat and accordingly directed for election of the Panchayat Samiti Member of that Grama Panchayat and also fresh election to the post of Chairman of G. Udaygiri Block.