ALEKHA KUMAR JENA Vs. AKSHAYA @ AKSHAYA KUMAR JENA

JUDGEMENT

(1.) By means of this Writ Petition, the Petitioner has challenged the impugned Judgment and Order Dated 24.2.2005 passed by the District Judge, Cuttack in Election Appeal Nos. 22 of 2003 and 24 of 2003 which appeals were filed against the Judgment and Order Dated 20.11.2003 passed by the Civil Judge (Senior Division), Kendrapara in Election Misc.Case No. 5 of 2002. Election Appeal No. 22 of 2003 was filed by Opposite Party No. 1 against the said Judgment declaring his election to the post of Member of Pattamundai Panchayat Samiti from Sanajaria Gram Panchayat as illegal and void and directing the Election Commissioner to do well to declare the instant Petitioner to be elected in his place. Election Appeal No. 24 of 2003 was filed by the instant Petitioner against that part of the Judgment passed by Learned Civil Judge (Senior Division), Kendrapara by which the Election Commissioner was directed to declare him as elected. Both the appeals were heard analogously and were disposed of by the impugned common Judgment.

(2.) THE brief facts of the case are that the instant Petitioner had filed an Election Petition, registered as Election Misc. Case No. 5 of 2002 before the Civil Judge (Senior Division), Kendrapara alleging that the Opposite Party was having more than two children and as such he was disqualified for being a member of the Samiti. The Civil Judge (Senior Division), Kendrapara framed the following issues:

(3.) HERE , at the very outset, we are considering the findings given on Issue No. 1 Section 45 of the Orissa Panchayat Samiti Act, 1969 prescribes the disqualification for becoming a member of a Panchayat Samiti according to Clause (v) of which a person shall not be eligible to stand for election if he has more than two children. It was alleged that at the time of filing nomination paper, the Opposite Party was having more than two children. However, such disqualification shall not apply to a person who has more than two children on the date of commencement of the Orissa Panchayat Samiti (Amendment) Act, 1994 or, as the case may be, within a period of one year of such commencement, unless he begets an additional child after the said period of one year. The Petitioner deposed that one child was born to Akshya Jena (Opp. Party No. 1) on 5.10.2000 at his village and he exhibited Entry 1435 of the Register of Births and Deaths of U.G.P.H.C, Pattamundai as Ext.7 which indicated that a male child was born to one Akshya Jena and Sovabini on 5.10.2000 as/informed by Malati Parida. Evidence adduced before the Learned Civil Judge (Senior Division) was to the effect that the Opposite Party was blessed with a male child on 5.10.2000. But the evidence produced was the entry made on the basis of the report of one Malati Parida, Auxiliary Nurse -cum -Midwife (ANM) on the basis of Ext. B which was an information sheet in Form No. 2, the details of which was that vide Serial No. 1435 dated 5.10.2000 a male child was born on 5.10.2000 to Akshaya Jena though the name of mother of the child has been reflected as Sobhabini and her educational qualification as M.E. But in fact the name of Akshaya Jena was proved to be the husband of Gurubari Rout. The election Commissioner had also issued a Voter Identity Card, which was exhibited in the case as Ext.A, which reveals that Gurubari Rout was the wife of Akshaya Jena. The Additional Tahasildar also issued certificate to that effect, which was exhibited as Ext.D. Further it had also come in the evidence that one Sobhabini, who was the wife of Ramesh Jena died on 15.1.2001. Therefore, on the basis of the aforesaid evidence, the District Judge set aside the Judgment and order passed by the Learned.Civil Judge (Senior Division), Kendrapara.