PRAVAKAR PRADHAN Vs. BHAKTABANDHU SAHOO

JUDGEMENT

(1.) THE present petitioner was elected as the Sarpanch of Malheipada Grama Panchayat. Altogether there were four candidates. Present opposite party No. 1, who was the nearest candidate to the petitioner, filed Election Misc. Case No. 3 of 1997 before the Civil Judge (Junior Division), Deogarh, mainly on the allegation that the present petitioner was not eligible to contest for the office of Sarpanch as he was disqualified to file nomination in view of the provisions contained in Section 25(1)(v) of the Orissa Grama Panchayat Act, 1965 (hereinafter referred to as the 'Act') having more than two children. The trial Court allowed the election petition, set aside the election of the present petitioner and declared present opposite party No. 1 to be duly elected. The said decision of the trial Court has been challenged by the present petitioner before the District Judge, Sambalpur, by filing Misc. (Election) Appeal No. 26 of 1997. During the pendency of the said appeal, the present petitioner filed an application for staying the operation of the judgment of the trial Court. The said petition for stay having been rejected by the appellate Court, the present revision has been filed.

(2.) IN this revision, it has been contended by the counsel for the petitioner that prior to the introduction of the provision of Section 25(1')(v) of Orissa Act 4 of 1993, the petitioner had only one child and subsequently after the amendment was effected, his wife gave birth to twin children at a time. It is, therefore, contended that the birth of two children at a time was an unforeseen event and since the petitioner had only one child prior to the amendment, the subsequent delivery of twin children should not be considered as a circumstance bringing the case of the petitioner within the purview of disqualification contemplated in Section 25( 1 )(v) of the Act. It is not disputed that the birth of the twin had taken place beyond the period of one year contemplated in the proviso to Section 25 (1 )(v). In this back -ground, the appellate Court refused to pass an order of stay as it was of the prima facie view that the petitioner having more than two children was disqualified. Such primafacie view cannot be characterised as illegal or without jurisdiction at this stage.

(3.) THE Civil Revision is accordingly allowed subject to the directions and observations made above. The District Judge should re -consider the question of stay within a period of one month from the date of receipt of this order. There will be no order as to costs.