CHANDRAKANTI BHOI Vs. COLLECTOR, BALANGIR

JUDGEMENT

(1.) THE petitioner by means of this writ petition has challenged the proceeding initiated against him by the Collector, Bolangir, vide order dated 27.7.2004 passed under Section 26 of the Orissa Grama Panchayat Act for declaring him disqualified to hold the office of Sarpanch of Mundapadar G. P. on the ground that he has begotten more than two children. On the same ground an Election Petition registered as MJC No.8 of 2002 is filed in the Court of the Addl. Civil Judge (Jr. Division) Kantabanji by one Dipa Bhoi, who was a candidate in the said election.

(2.) THE question that arises for determination in this case is whether during pendency of an Election Petition, the Collector can hold an enquiry on the question of petitioners incurring disqualification on the same ground. Before proceeding further, it is necessary to peruse the relevant provisions of the Orissa Grama Panchayat Act relating to filing of the election petition and the power of the Collector to hold proceeding for the purpose of adjudicating the question of disqualification of a person for holding the post of Sarpanch or a Member of a G.P. In this regard Sub -Section (1) of Section 25 of the Orissa Grama Panchayat Act (for short, "the Act") provides that a person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act; whereas Sub -section (2) thereof provides that a Sarpanch or any other member, of a Grama Panchayat shall be disqualified to continue and shall cease to be a member if he incurs any of the disqualification specified in Clauses (a) to (j), Clauses (m) to (p) and Clauses (t) to (v) of Sub -section (1). The relevant provisions of Sections 25 and 26 of the Act are quoted hereunder:

(3.) A bare comparison of Sections 30 to 32 with 26 of the Act shows that an election petition can be presented by a person who filed his nomination on the ground mentioned in Section 25, i.e., disqualification for being elected or nominated as Sarpanch. But the Collector under Section 26 of the Act has power to determine disqualification either suo motu or on receipt of an application under Sub -section (1) and make an order in that behalf which shall be final and conclusive. Under Section 26 of the Act the Sarpanch at the request of the Grama Panchayat or if such person is himself in doubt whether or not he is or has become so disqualified may apply to the Collector for a decision on the allegation of doubt. Thus, it is clear that no other person except one who had filed nomination can apply for setting aside the election of the elected candidate whereas any member of the Grama Panchayat or Naib Sarpanch or Sarpanch at the request of the G.P. can apply to the Collector for taking a decision as to the disqualification of the elected candidate. Therefore, the mode of decisions by the Civil Judge (Junior Division) and the Collector are quite different. A person who contested the election cannot file application under Section 26 of the Act and he is only to file an election petition. Similarly, a member of the Grama Panchayat concerned cannot move an election petition and the course open to him is to file a petition under Section 26 before the Collector. 5. In view of the above, if the election petition is pending for decision against the petitioner on the ground that he was having more than two children within a period of one year from the date of commencement of the Orissa Grama Panchayat (Amendment) Act, 1994 which came into force on 22.4.1994 and a Sarpanch or Member of the Grama Panchayat has moved the application before the Collector under Section 26 of the Act, the latter cannot be restrained from proceeding on the ground that an election petition is pending before the Civil Court. The Civil Judge (Junior Division) in the election petition can determine the question of disqualification. Under Section 26 of the Act on being moved by a Member of Grama Panchayat or Sarpanch at the request of the Grama Panchayat or on the basis of such information received, the Collector can take suo motu action for such determination.