Jagdev Majhi vs State Of Odisha & Others
2021 Latest Caselaw 9240 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                      Writ Appeal No.172 of 2019

An appeal challenging the order dated 09.04.2019 passed by the learned
Single Judge in W.P.(C) No.2924 of 2019


  Jagdev Majhi                                  ....           Appellant


                                  -versus-

  State of Odisha & others                      ....          Respondents


  Advocates appeared in the case through Hybrid Mode:

  For Appellant                  :    Mr. Bibhuti Keshari Biswal



  For Respondents                :    Addl. Government Advocate
                                      (for respondents nos.1 and 2)

                                      Mr. Samvit Mohanty and
                                      Saswata Mohapatra, Advocates
                                      (for respondent nos.3)


      CORAM:
           JUSTICE S.K. MISHRA
           JUSTICE SAVITRI RATHO

             DATE OF HEARING:-31.03.2021 & 16.08.2021
                DATE OF JUDGMENT:- 03.09.2021

    S.K. Mishra, J.

. "Whether Collector of a district has jurisdiction under Section 26 (2) of the Odisha Grama Panchayat Act, 1964

to decide the question of disqualification of a returned candidate for not having the requisite qualification under Section 11(a)(i) of the aforesaid Act for not having attained the minimum age of 21 years for the post of Sarpanch of a Grama Panchayat."

2. The above question arose in this intra-Court appeal. The appellant,

being the petitioner before the Collector, Nuapada assails the correctness of

order dated 09.04.2019 passed by the learned Single Judge in W.P.(C)

No.2924 of 2019, wherein he set aside the order passed by the learned

Collector, Nuapada in exercise of jurisdiction under Section 26, read with

Section 11 (a)(i) of the Odisha Grama Panchayat Act, 1964, hereinafter

referred to as 'Act' for brevity.

The respondent no.3 was elected as a Sarpanch of Saliha Grama

Panchayat of Nuapada block on 27.02.2017. A petition under Section 26 of

the Act was filed by the appellant and others on the ground that nomination

of the respondent no.3 was accepted illegally as she has not attained the age

of 21 years on the date of filing of the nomination and as such, she was not

qualified to the post of Sarpanch as per Section 11 (b) of the Act. The

Collector, Nuapada issued notices and after accepting evidences etc came to

the conclusion that the respondent no.3, opposite party before him, had not

attained the minimum age prescribed in Section 11 (b) of the Act at the time

of filing nomination for the post of Sarpanch, as her date of birth is

29.09.1997. Accordingly, he declared the respondent no.3-Manita Sahu to be

disqualified for being elected as Sarpanch of Saliha Gram Panchayat of

Nuapada Panchayat Samiti and her election for the said post was declared to

be void and illegal.

3. The learned Single Judge after taking into consideration the

materials placed before him and relying upon a judgment of this Court in

W.P.(C) No.3321 of 2018 held that the allegation with regard to not

attaining the age of 21 i.e. the age of eligibility is a violation of Section 11

(b) of the Act, and it can only be challenged in a election petition filed under

Section 30 of the Act and the allegation made does not come within the

purview of Section 25 of the Act. Hence, he held that the Collector should

not have exercised the jurisdiction under Section 26 of the Act and therefore,

allowed the writ petition and quashed the order passed by the Collector,

Nuapada.

4. The appellant filed an application before the Collector, Nuapada

that the respondent no.3 was under age at the time of filing of the

nomination, which can be known from reliable source. The respondent no.3

suppressed her date of birth and filed a false affidavit. The appellant

examined the Head Master, Government UG High School, Magurpani and

the information dated 28.12.2016 and 22.12.2017 obtained under the Right

to Information Act has been exhibited. It was established before the

Collector that the respondent no.3-Manita Sahu was admitted in the School

having date of birth 29.09.1997. The respondent no.3-petitioner in W.P.(C)

No.2924 of 2019 has not given an alternative date with regard to her date of

birth. In other words, the petitioner has not put an alternative case that she

was born on a particular date to make her eligible to contest the election of

Sarpanch having attained the age of 21 on the date of nomination. She has

only relied upon averments and the document filed as Annexure-5 to the writ

petition, which happens to be copy of the electoral roll prepared by the State

Election Commissioner for Saliha Grama Panchayat, that she was 22 years

on 2017. The contentions raised before the learned Single Judge are that the

lack of qualification mentioned in Section 11(b) of the Act cannot be

adjudicated upon or answered in a proceeding under Section 26 of the Act as

the Section 26 of the Act is confined only to the disqualification referred to

in Section 25 of the Act and that the Collector does not have jurisdiction to

declare the election void under Section 26 of the Act.

5. Mr. Bibhuti Keshari Biswal, learned counsel for the appellant

relied upon the reported case of Bilash Majhi v. Collector and District

Magistrate, Kalahandi and another, 2015 (II) CLR 897. In the reported

case, the learned Single Judge held that a disqualification appearing in

Section 11(a)(i) of the Act can be decided in a proceeding under Section

26(2) of the Act. The learned Single Judge took into account the earlier

reported case of Raghunath Sahoo v. Collector & District Magistrate,

Keonjhar and others, 2008 (I) OLR 230 and the full Bench judgment of this

Court in Debaki Jani v. The Collector and another, 2014 (I) CLR 922.

6. The learned counsel for the respondent no. 3, on the other hand,

very emphatically submitted that the order passed by the learned Single

Judge does not suffer from any infirmity or illegality. He relied upon the

reported cases of Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa

and others, AIR 1999 SC 1120 and Debaki Jani v. the Collector and

another, (supra). While answering the question formulated at the beginning

of the judgment, we are of the opinion that the procedure adopted by the

learned Single Judge in disposing of the writ petition is improper in view of

the fact that a Bench of co-ordinate strength has already decided this matter

in Bilash Majhi v. Collector and District Magistrate, Kalahandi and

another (supra). If the learned Single Judge was of the opinion that the

judgment and the ratio decided in Bilash Majhi case (supra) is not the correct

law, the best course should have been to refer it to a larger Bench. The

judgment of the learned Single Judge impugned in this intra-Court appeal is

therefore hit by the principles of stare decisis.

7. We are of the opinion that the view taken by C.R. Dash,J. in

Bilash Majhi vs. Collector & District Magistrate, Kalahandi and

another (supra) is correct. We give the reasons for the same as follows:

" In Raghunath Sahoo v. Collector & District Magistrate, Keonjhar

and others (supra), this Court held that simultaneous proceedings under

Sections 26 and 30 of the Act are maintainable. Section 30 of the Act

provides for the election dispute before the Civil Judge (Junior Division)

whereas Section 26 provides for an enquiry by the District Magistrate and

Collector. For the purpose of convenience, the relevant portions of the

provisions applicable to the case are quoted below:

" Section 11. Qualification for membership in the Grama Panchayat - Notwithstanding anything contained in Section 10 no member of a Grama Sasan shall be eligible to stand for election-

xxx xx xx

(b) as a Sarpanch or Naib-Sarpanch, if he has not attained the age of twenty-one years or is unable to read and write Oriya; xx xx xx

Section 25 of the Act provides for disqualification for membership of Grama Panchayat. The relevant portion is quoted below.

"25. Disqualification for membership of Grama Panchayat - (1) 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, if he - xx xx xx

(s) is disqualified by or under any law made by the Legislature of the State; or xx xx xx"

Section 26 of the Act reads as follows:

" 26. Procedure of giving effect to disqualifications. - (1) Whenever it is alleged that any Sarpanch or Naib-Sarpanch or any other member is or has become disqualified or whenever any such person is himself in doubt whether or not he is or has become so disqualified such person or any other member may, and the Sarpanch at the request of the Grama Panchayat shall, apply to the Collector for a decision on the allegation of doubt.

(2) The Collector may suo motu or on receipt of an application under Sub-section (1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive.

(3) Where the Collector decides that the Sarpanch, Naib- Sarpanch or any other member is or has become disqualified such decision shall be forthwith published by him on his notice-board and with effect from the date of such publication the Sarpanch, Naib-Sarpanch or such other member, as the case may be, shall be deemed to have vacated office, and till the date of such publication he shall be entitled to act, as if he was not disqualified."

8. Thus, a joint reading of the aforesaid provisions leaves no doubt in

the mind of the Court that in a proceeding under Section 26 of the Act, the

Collector has the jurisdiction to determine whether or not such person is or

has become disqualified and make an order in that behalf, which shall be

final and conclusive. As provided under sub-Section (3) of the aforesaid Act,

such decision is to be forthwith published by him on his notice board and

with effect from the date of such publication, the Sarpanch, Naib-Sarpanch

or such other member, as the case may, shall be deemed to have vacated

office.

Section 25 of the Act lays down the disqualification for

membership of Grama Panchayat or to hold the office of Sarpanch. Clause

(s) of Section 25(1) provides that a person shall be disqualified for being

elected or nominated as a Sarpanch or other member of the Grama

Panchayat constituted under that the Grama Panchayat Act, if he is

disqualified by or under any law made by the legislature of the State. In that

very Grama Panchayat Act of 1964, Section 11 provides for the

qualifications to be a member of the Grama Panchayat or Grama Sasan.

Clause (b) of Section 11 very clearly lays down that notwithstanding

anything in Section 10 no member of a Grama Sasan shall be eligible to

stand for election as a Sarpanch or Naib-Sarpanch, if he has not attained the

age of twenty-one years. Thus, a conjoint reading of Section 25 (1) (s) and

Section 11 (b) of the Grama Panchayat Act leads to the irresistible

conclusion that in order to contest for the post of Sarpanch of a Grama

Panchayat, a person should have attained the age of 21. Though there is no

mention as about the date on which the candidate should complete 21 years,

we are of the opinion that it is on the date of nomination that she/he should

have attained the age of 21.

Admittedly, in this case, the factual findings of the Collector,

Nuapada that the date of birth of the respondent no.3 is 29.09.1997, hence

she had not attained the age of 21 years on the date of nomination, has not

been set aside by the learned Single Judge. Therefore, her nomination is

illegal and cannot be upheld by the Court.

9. The learned counsel for the respondent no.3 submitted that the

Collector-cum-District Magistrate cannot pass an order that the election is

void. However, we are of the opinion that the choice of word by the

Collector, Nuapada, may not be proper but that does not nullify the findings

he has arrived at in a quasi-judicial proceeding. As per sub-Section (3) of

Section 26 of the Act, once the Collector comes to the conclusion that a

person is not qualified to hold the office and that he takes a decision to that

effect and publish the same in his notice board, from that day onwards, the

Sarapanch or Naib-Sarpanch or Member of the Grama Panchayat shall be

deemed to have vacated the office. So, merely because the Collector used

the word 'void' in his order, it will not make his decision on the petition

filed under Section 26 of the Act by the appellant susceptible to interference.

The argument of Mr. Samvit Mohanty, learned counsel for the respondent

no.3 that in an application under Section 26 of the Act only disqualification

appearing under Section 25 of the Act should be considered and not the

absence of qualification enumerated under Section 11 of the Act, is of no

substance. He argued that absence qualification as enumerated in Section 11

can only be decided in a election petition under Section 30 of the Act is also

of no substance. In election petition filed under Section 30 of the Act,

questions relating to absence of qualification or presence of disqualification

as mentioned in Sections 11 and 25 of the Act can be gone into. In our

considered opinion, an application under Section 26 of the Act has within its

gamut the absence of qualification as well as the presence of

disqualification.

10. Thus, we come to the conclusion that the order passed by the

learned Single Judge in W.P.(C) No.2924 of 2019 on dated 09.04.2019 is

not sustainable and has to be interfered with.

Accordingly, the Writ Appeal is allowed. The order dated

09.04.2019 passed in W.P.(C) No.2924 of 2019 is hereby set aside. It is

directed that the election of the respondent no.3 to the post of Sarpanch is

illegal as she did not have the qualification to contest in the election on the

date in question. It is further directed that the respondent no.3 shall be

deemed to have vacated the office from the date of the decision of the

Collector, Nuapada that she was disqualified for being elected as Sarpanch

on 27.02.2017.

Urgent certified copy of this judgment be granted on proper

application.

........................

S.K.Mishra, J.

Savitri Ratho, J.       I agree


                                                 .......................
                                                 Savitri Ratho,J.




Orissa High Court:Cuttack
Dated, 3rd Sept, 2021/PCD