MALAYA KUMAR MOHANTA Vs. COLLECTOR MAYURBHANJ

JUDGEMENT

(1.) This is an appeal under Section 32(2)(iv) of the Orissa Zilla Parishad Act, 1991 (Orissa Act 17 of 1991). The appellant and respondents 4 to 9 had contested election to Zilla Parishad from Muruda-II (Zilla Parishad Constituency No. 40). In the said election, respondent No. 4 was declared elected having secured the highest votes. The present appellant had secured the next highest votes. The present appellant filed Election M.J.C. No. 13 of 1997 before the District Judge, Mayurbhanj, Baripada, challenging the election of respondent No. 4, inter alia, on the ground that the present respondent No. 4 was not eligible to contest the election as he had more than two children and his fourth child was born on 4-6-1995.Respondent No. 4 who was opposite party No. 4 before the Court below filed a written statement countering the allegations made in the election petition. It was stated in the written statement that all the issues of opposite party No. 4 were born within the cut-off date as prescribed in Section 33(1)(w) of the Orissa Zilla Parishad Act (hereinafter referred to as the "Act").The trial Court rejected the petition holding that the materials on record did not establish beyond doubt about the birth of the fourth child after the due date and the evidence on that behalf was not conclusive. Hence the present appeal.

(2.) Before entering upon the disputed questions of fact, it would be appropriate to notice the relevant provision of law which was incorporated by way of amendment by the Orissa Zilla Parishad (Amendment) Act, 1993 (Orissa Act 17 of 1993). By Section 12 of the Amending Act, Section 33 of the principal Act was amended. After amendment, the relevant provision contained in Section 33(1)(w) reads as follows :-

(3.) The appellant had categorically stated in the election petition that the fourth child, a daughter, was born in the year 1995. Respondent No. 4 while not denying categorically about the existence of four children, had taken the plea that all the children were born before the stipulated date and the disqualification under Section 33(1)(w) of the Act was not applicable.