[Cites 7, Cited by 0]
Orissa High Court
Jamunabai Sahu @ Jamuna vs State Of Odisha & Others .... Opposite ... on 29 November, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.27047 of 2024
Jamunabai Sahu @ Jamuna .... Petitioner
Sahu
Mr. Sudeep Kumar Sarangi, Senior Advocate
-Versus-
State of Odisha & others .... Opposite Parties
Mr. Prabir Kumar Ray, AGA
Mr. Samir Kumar Mishra, Senior Advocate for O.P. No.5
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 26.08.2025
DATE OF JUDGMENT:29.11.2025
1.
Instant writ petition is filed by the petitioner assailing the
impugned order as at Annexure-6 of opposite party No.2 with
a further direction to the said authority not to disengage him
from the post of Sarpanch, Bharuamunda Gram Panchayat on
the grounds inter alia that such decision is legally untenable
and therefore, the same liable to be interfered with in the
interest of justice.
2. According to the petitioner, opposite party No.5 moved an
application under Section 26 of the Odisha Grama
Panchayats Act, 1964 (hereinafter referred to 'the Act')
registered as Misc. Case No.18 of 2022 alleging therein
disqualification of the petitioner under Section 25(1)(v)
thereof and the same was allowed by opposite party No.2
solely on the basis of the allegations received from him
without affording any opportunity to either to examine the
documents filed or to cross-examine the witnesses, hence,
such an action declaring disqualification is bad in law and
contrary to the principles of natural justice.
3. The petitioner was elected as the Sarpanch of the
concerned Gram Panchayat in the year 2022 and took charge
of the office after being declared as such vide notification
No.1985 dated 2nd March, 2022. By alleging that the
petitioner is having more than two children born after the cut-
off date, opposite party No.5 challenged her election on the
ground that she stands disqualified under Section 25(1)(v) of
the Act with the claim that three of her children were born on
25th November, 2009, 10th September, 2011 and 19th August,
2013 with the third child being given in an adoption to one
Ruplal Sahu and Bedika Bai Sahu.
4. According to the petitioner, the application filed by
opposite party No.5 is on the basis of information received
through RTI Act and that apart, while the matter was fixed
for hearing, the petitioner had requested an adjournment on
23rd March, 2023 and to recall Block Development Officer,
Medical Officer and Anganwadi Worker for their cross-
examination in the proceeding. Furthermore, it is claimed
adjournment was also sought for on the ground that the
counsel to appear for the petitioner had undergone eye
operation, however, such request was not entertained and
thereafter, opposite party No.2 proceeded further without
affording any opportunity for him to cross-examine the
witnesses, allowed the application of opposite party No.5 and
set aside her election by order dated 29th March, 2023
communicated on 3rd July, 2023 vide Annexure-1.
5. The above order was challenged by the petitioner in
W.P.(C) No.21575 of 2023, whereafter, the order of
disqualification was set aside by this Court on 12th March,
2024 while disposing of W.P.(C) No.21575 of 2023 vide
Annexure-2 and remitted the matter back with a direction to
opposite party No.2 to rehear the same providing an
opportunity of hearing to the petitioner allowing her to file
show cause fixing a time line of six months to conclude the
proceeding.
6. In course of hearing, opposite party No.2 called for a
report from the Registrar of Birth and Death-cum-Medical
Superintendent, CHC, Khariar Road, Nuapada received as
per Annexure-6 stating therein that the petitioner is having
two children. It is claimed that petitioner's husband had also
served as the Sarpanch of the Gram Panchayat previously for
a tenure of five years between 10th March, 2017 and 10th
March, 2022 and in that regard, a certificate issued by the
concerned BDO at Annexure-4 has been referred to. Besides
that, another certificate at Annexure-5 series issued by the
Registrar of Birth and Death provided under the RTI Act in
favour of the petitioner showing her having two children born
on 25th November, 2009 and 10th September, 2011 is placed
reliance on to claim that the allegation of opposite party No.5
is incorrect.
7. It has been further pleaded that opposite party No.2 called
for a report from the Medical Officer, however, relied on a
deed of adoption produced by opposite party No.5 to prove
that the petitioner is having three children born on different
dates and referring to the same, her election as the Sarpanch
was declared as void vide Annexure-6 in terms of Section
25(1)(v) of the Act. The petitioner's plea is that when she in
the counter affidavit filed before opposite party No.2
categorically declined to have more than two children,
without receiving any evidence or providing her opportunity
to cross-examine the witnesses or verification of documents
in order to test the veracity of the alleged claim, opposite
party No.2 reached at such a conclusion as per Annexure-6.
Adding further, it is pleaded that the deed of adoption filed
by opposite party No.5 cannot by itself be admitted as
evidence, hence, opposite party No.2 should not have relied
upon the same. It is alleged that opposite party No.5 had
contested the election and lost it to the petitioner and
thereafter, filed the application under Section 26 of the Act
and that apart, election dispute was also raised before the
learned Civil Judge (Senior Division), Nuapada in Dispute
Case No.2 of 2022. The pleading is that opposite party No.2
showed unusual haste in disposing of the proceeding
suddenly before six months was to expire and due to such
time line fixed without properly conducting the enquiry and
hearing of the parties and passed the impugned order i.e.
Annexure-6, which is legally not tenable. Lastly, it is claimed
that the petitioner is continuing as the Sarpanch of the Gram
Panchayat since the order of disqualification dated 17th
October, 2024 was not served on her and that apart,
considering the fact that she is a representative of the people
and validly elected, the impugned decision by order at
Annexure-6 is liable to be interfered with and set aside.
8. The State has not filed counter.
9. In fact, opposite party No.5 filed a reply, to which,
rejoinder affidavit is received from the petitioner and the
same are gone through.
10. Heard Mr. Sarangi, learned Senior Advocate for the
petitioner, Mr. Mishra, learned Senior Advocate for opposite
party No.5 and Mr. Ray, learned AGA for the State.
11. According to Mr. Sarangi, learned Senior Advocate for
the petitioner, no proper hearing has taken place before
opposite party No.2 providing a fair amount of participation
and considering the evidence received from opposite party
No.5 by not having proper scrutiny of the same and allowing
to defend with the cross-examination of the witnesses and
verification of documents, the election of the petitioner has
been declared as void under Section 25(1)(v) of the Act. It is
contended that the principles of natural justice have not been
adhered to while concluding the proceeding under Section 26
of the Act, hence, therefore, the impugned order i.e.
Annexure-6 is legally not tenable. Too much of emphasis is
laid on Annexures-3, 4 and 5 to contend that the petitioner is
having two children as certified by the Registrar of Birth and
Death but it has not been taken into account by opposite party
No.2 as further contended by Mr. Sarangi, learned Senior
Advocate appearing for her. Referring to Section 26 of the
Act, it is also contended that there has been no judicial
application of mind by opposite party No.2. The argument is
that opposite party No.5 was required to admit the documents
and opposite party No.2 should have followed due process of
law allowing the petitioner to examine it with the necessary
verification but no such exercise has taken place. Referring to
the decision of this Court in Ahalya Mangaraj Vrs. State of
Odisha and others 2006 (I) OLR 411, it is concluded by
Mr. Sarangi, learned Senior Advocate that in absence of
proper enquiry conducted by opposite party No.2 declaration
of election of the petitioner as invalid under the Act cannot
be sustained in law. Essentially, the challenge to the decision
of opposite party No.2 is on the ground that the documents
have not been confronted to the petitioner nor she had been
provided the opportunity to cross-examine the witnesses,
whose reports were relied on while declaring her
disqualification as the Sarpanch of the Gram Panchayat.
Further referring to another decision in Pabani Gajendra
and State 2005 (II) OLR 686, it is contended that when
opposite party No.2 referred to any such reports to base the
findings, he should have afforded an opportunity to the
petitioner to cross-examine the witnesses, who prepared such
reports besides providing her an opportunity to tender
rebuttal evidence. With the facts narrated hereinabove, Mr.
Sarangi, learned Senior Advocate would finally submit that
the decision of opposite party No.6 as per Annexure-6 suffers
from legal infirmity.
12. On the contrary, Mr. Mishra, learned Senior Advocate for
opposite party No.5 submits that proper enquiry was held by
opposite party No.2 and considering the reports received, the
copies of which were furnished to the petitioner and with the
latter's participation when such a conclusion was arrived at
and when it ultimately led to the declaration of the
petitioner's election as invalid in terms of Section 25(1)(v) of
the Act, the same should not be tinkered with. The further
submission is that a proceeding under Section 26 of the Act is
summary in nature and a detailed procedure is followed in
trial or hearing of the suit, hence, opposite party No.2 did not
commit any serious error or illegality and based the
conclusion on admissible evidence, such as, the reports
received from the authorities concerned which clearly
revealed the petitioner having more than two children born
after the cut-off of date. It is contended that the petitioner
wholeheartedly participated in the proceeding, fully aware of
the evidence produced by opposite party No.5 and what to
reply and respond and under such circumstances, to claim
that there is no proper enquiry held, is totally misconceived.
It is also contended that when the reports revealed that the
petitioner is disqualified under Section 25(1)(v) of the Act, it
was incumbent upon opposite party No.2 to declare the
election as void. In fact, when opposite party No.5 produced
a deed of adoption and it disclosed the fact about the
petitioner having given her third child in adoption and a copy
of the adoption deed was produced, it was her to respond
with rebuttal evidence and in absence of any such reply, on a
wholesome consideration of the materials on record, it was
justified for opposite party No.2 conclude that the petitioner
invited disqualification.
13. The petitioner challenged the decision of opposite party
No.2 at Annexure-1 and as earlier stated, it was set aside vide
Annexure-2 on the premise that a fresh hearing is necessary
with the observation that the petitioner was not granted
adequate opportunity of hearing since on the date fixed she
had requested for time as her engaged counsel had undergone
eye surgery, however, opposite party No.2 proceeded further
concluded and passed the order declaring her disqualification
under Section 25(1)(v) of the Act. In course of hearing, it is
made to understand that opposite party No.2 received enquiry
reports from CDPO, Nuapada, Medical Officer, CHC,
Khariar Road and BDO, Nuapada. The said reports revealed
the petitioner having three children. A contrary report was
also received from the Medical Officer, CHC, Khariar Road,
Nuapada revealing that the petitioner has two children. All
such reports have been taken judicial notice of by opposite
party No.2 besides a copy of the deed of adoption executed
on 21st February, 2017. It is contended by Mr. Sarangi,
learned Senior Advocate that reports were utilized against the
petitioner and the official who prepared the same should have
been subjected to cross-examination by her and since such a
procedure was not followed, opposite party No.2 failed in his
duty while dealing with an action under Section 26 of the
Act. It is revealed from the impugned order i.e. Annexure-6
that a detailed hearing was held in presence of both the sides
and the reports received from the concerned authorities were
well within the knowledge of the petitioner to which she was
to respond. It is also revealed therein that opposite party No.5
obtained the information under the RTI Act and marked it as
Ext.1 series received without objection besides a copy of the
adoption deed produced before opposite party No.2 and the
same was confronted to the petitioner. The question is,
whether, upon receiving the reply from the petitioner, due
procedure was followed by opposite party No.2 in
consonance with Section 26 of the Act?
14. In a proceeding under Section 26 of the Act, a detailed
cross-examination of witnesses is not a matter of right when
the proceeding is an executive and quasi-judicial enquiry and
not a full-fledged trial, hence, is not governed by the strict
rules of evidence laid down in the Indian Evidence Act.
According to Section 26(2) of the Act, the Collector is
authorized to make such enquiry as he considered necessary
into an allegation of disqualification which allows him the
discretion to determine appropriate procedure to be followed
and not to adopt a formal procedure observed in course of
trial. The statute only mandates that the Sarpanch or member
of the Gram Panchayat whosoever against whom the action is
initiated shall have to be provided an opportunity of being
heard. According to the Court, the provisions under Section
26 of the Act does not entitle a party to a detailed cross-
examination, in the manner, a civil or criminal trial is held. It
would be correct to hold that the standard procedure of
confronting the Sarpanch or such member placing action
under Section 26 of the Act with the reports and to provide
him a fair amount of opportunity to defend would be enough
and therefore, a party cannot demand cross-examination as a
matter of course. The enquiry under Section 26 of the Act is
to be held in a summary manner, hence, there is no absolute
right to a detailed cross-examination during such enquiry
held by the Collector and what is more important is that the
principles of natural justice are to be followed which means
the person who has been proceeded with must have a fair
chance to defend and the same is generally satisfied by
confronting him with the evidence received during the
enquiry. If, in case, when a case really demands the Collector
for examination of any of the witnesses during such enquiry,
he has the discretionary powers to do so but as earlier
concluded, the procedure is summary and no one has a right
to demand cross-examination of witnesses or for receiving
documentary evidence like in a civil or criminal trial.
15. In the case at hand, the petitioner has been disqualified as
the Sarpanch of the G.P. for having more than two children
born after the cut-off date. In course of hearing, the reports
were received by opposite party No.2 which have been taken
judicial notice of to reach at a conclusion on the subject
matter in dispute. On the earlier occasion, the decision of
opposite party No.2 was interfered with by this Court in
W.P.(C) No.21575 of 2023 simply for the reason that no
adequate opportunity of hearing was allowed to the
petitioner. It is alleged by the petitioner that opposite party
No.2 should have allowed her to cross-examine the officials
from whom the reports were received. As it is discussed
earlier, cross-examination of any such officials cannot be
claimed as a matter of right. If in a given set of
circumstances, situation demands any such confrontation of
reports to the officials from whom it was received, such an
exercise may be undertaken. But, to claim that all the
officials are to be cross-examined since the reports are relied
on is an argument, which is unacceptable and thoroughly
misplaced. In the case of the petitioner, all the reports were
brought to her notice and confronted during and in course of
hearing. It is not that the petitioner was not made aware of the
materials to be utilized against her during the enquiry. Rather,
the question is, what was the response of the petitioner to all
such reports, which have been confronted to her? Except bald
denial, nothing has been revealed by the petitioner disputing
the correctness of the reports. Of course, one of the reports
from the Medical Officer, CHC, Khariar Road disclosed
otherwise and in favour of the petitioner's claim but the same
has been taken cognizance of during enquiry and duly
verified in juxtaposition to other materials, which are
overwhelming in nature. It is to reiterate that an enquiry
under Section 26 of the Act is not a full-fledged trial but a
proceeding to examine the disqualification as against the
materials brought to the notice of the Collector. One cannot
claim a procedure like trial to be followed demanding cross-
examination of each and everyone during enquiry. If a case is
made out for cross-examination considering the response on
record, the Collector in such a situation may consider the
cross-examination of a witness, who prepared the report. The
finding of a report, if dented, by any such revelation made by
the party, against whom, the same is to be utilized, only
under such circumstances, the demand for cross-examination
of the witness preparing it should be entertained in an enquiry
under Section 26 of the Act. Mere denial to the reports would
not be sufficient in such enquiry wherein a detailed procedure
like a trial is not followed, hence, it is incumbent upon the
party, who claims for cross-examination of an official
witness, is to show and satisfy that the same is absolutely
necessary for the revelation made. It depends on the kind of
defence one has advanced when pitted against all the
incriminating materials. Just a denial or rejection to the
adverse evidence surfaced without more would not be enough
to demand cross-examination of any such officials. In the
case of the petitioner, except bald denial, nothing was
brought to the notice of opposite party No.2 to show and
satisfy that any of the findings of the adverse reports are not
worthy of acceptance. No evidence to the contrary of the
reports was introduced or at least, brought to the notice or
knowledge of opposite party No.2 to make out a case for
confrontation of any of the reports to the officials, who
prepared it. In absence of any such need felt by opposite
party No.2, it would not be proper to claim that the reports
really needed a confrontation. The petitioner was made fully
aware of all the adverse materials and after considering the
same with a hearing followed, the decision opposite party
No.2 has arrived. Considering the entirety of the materials, it
is not a fit case where interference is needed.
16. In Ahalya Mangaraj (supra), in view of factual
discrepancies surfaced, this Court had the occasion to hold
that the enquiry was not properly conducted and further
concluded that the principle of natural justice is not a straight
jacket formula and it would vary from case to case and
depends on the genesis of the action contemplated, the
reasons thereof and possibility of prejudice to a party. The
petitioner cannot be said to have been prejudiced in any way
as she was provided reasonable opportunity of hearing and
was confronted with the incriminating materials received on
record expected of a befitting response. Rather, the response
of the petitioner is just denying the reports without placing
any materials to discredit the same and instead demanded
cross-examination of the officials, which as earlier said, any
such request is not a matter of right in a proceeding under
Section 26 of the Act. The Court is not inclined to direct one
more round of adjudication after considering the materials on
record in absence of a strong defence with irrefutable claim
of the petitioner dismantling the credibility of the reports.
17. Hence, it is ordered.
18. In the result, the writ petition stands dismissed.
(R.K. Pattanaik)
Judge
Tudu
