HIGH COURT OF ORISSA: CUTTACK W.A. No.1 70 of 2010 From a judgment dated 22.03.2010 passed by a learned Single Judge of this Court in W.P.(C) No.13386 of 2007. -------- Smt. Mithila Seth, W/o. Nirmal Seth, AT/PO: Badibahal, PS: Loisingha, Dist: Bolangir … Appellant -Versus- The Collector, Bolangir … Respondent For Appellant : M/s. Biswajit Pasayat, D.R.Mohapatra, T.K.Acharya & B.Patra For Respondent : Mr. Pradeep Kumar Choudhury ( for Caveator) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Hearing: 24.12.2010 Date of Judgment: 04.05.2011 B.N. MAHAPATRA, J. In this appeal, the appellant has challenged legality of the judgment dated 22.03.2010 passed by a learned Single Judge of this Court in W.P.(C) No.13386 of 2007 upholding the order dated 12.10.2007 of the Collector, Bolangir wherein the Collector declared the writ appellant disqualified to hold the office of Sarpanch, Badibahal G.P. under Loisingha Panchayat Samiti in the district of Bolangir on the ground that the same has been passed without appreciating the facts of the case in its proper perspective and without taking into consideration several decisions cited by the appellant in support of her case and the fact that her 4th son, Suman Seth was born on 03.12.1994 before the cut off date, i.e., 21.04.1995. 2. Bereft of unnecessary details, the facts and circumstances giving rise to the present appeal are that the election to the office of Sarpanch, Badibahal G.P. under Loisingha Panchayat Samiti in the district of Bolangir was held on 13.02.2007 in which the present appellant and two others, namely, Smt. Chinmayee Naik and Smt. Labanyabati Bag were also candidates. In the said election Smt. Chinmayee Naik and Smt. Labanyabati Bag were defeated. Thereafter their husbands filed a complaint before the Collector, Bolangir against the writ appellant to disqualify her to continue as Sarpanch on the ground that she has five children, two of whom are said to have been born after the relevant cut off date, i.e., 21.04.1995. On receipt of the complaint, a show cause notice was issued from the office of the Collector, Bolangir to the opp. party-appellant, who in response to it, filed a show cause reply denying the allegation made against her. On her denial, the matter was enquired into by the Collector who found that Suman Seth, the 4th child of the appellant was born on 03.07.1997 and Susanta Seth, the 5th one was born on 30.10.2002. As both 4th and the 5th sons were born after the cut off date, the Collector, Bolangir declared the appellant disqualified to hold the office of Sarpanch of Badibahal Grama Panchayat under Loisingha Panchayat Samiti. 2 3. Challenging the said order, the writ appellant filed writ petition bearing W.P.(C). No.13386 of 2007 before this Court. Before the learned Single Judge, the appellant-petitioner raised contentions; the first ground was that the petition filed before the Collector was not maintainable as the same was filed by husbands of the defeated candidates. Secondly, the writ appellant’s 4th child-Suman Seth was born before the cut off date. Therefore, she should not have been disqualified in the election. Learned Single Judge dismissed the said writ petition holding that it can be safely said that the appellant-petitioner begot at least one child after the cut off date. Hence, the present Writ Appeal. 4. Mr. Biswajit Pasayat, learned counsel appearing for the writ appellant vehemently argued that the order passed by the learned Single Judge is illegal and not sustainable in the eye of law. The specific stand taken before the learned Single Judge was that under Section 26 of the Orissa Grama Panchayats Act, 1964 the defeated candidate has no locus standi to contest proceeding under the said Section before the Collector, Bolangir. Only course open for the defeated candidate was to file election dispute before the Civil Judge to challenge the election of the elected candidate. Therefore, the complaint petition filed by the husbands of the defeated candidates before the Collector is not maintainable. Though this ground taken before the learned Single Judge, he has not considered the same. No reasonable opportunity of hearing was afforded to the appellant before declaring her disqualified. He further submitted that since the only 3 dispute before the learned Single Judge was about the date of birth of the last child of the appellant, the learned Single Judge should have remanded the case to the Collector by directing him to pass appropriate order after conducting proper inquiry and giving opportunity of hearing to the parties concerned. Though several judgments were cited, the same were not taken into consideration by the learned Single Judge. In support of his contention, Mr. Pasayat relied upon various judicial pronouncements. Concluding the argument, Mr. Pasayat submitted that the writ appeal is liable to be allowed. 5. Per contra, Mr.P.K.Choudhury, learned counsel appearing on behalf of the caveator/respondent contended that there is no infirmity in the judgment passed by the learned Single Judge. 6. On the rival contentions, the following questions fall for consideration by this Court. (i) Whether the complaint filed by the husbands of the defeated candidates before the Collector is maintainable and not hit by Section 26 of the Orissa Grama Panchayat Act? (ii) Whether reasonable opportunity of hearing was afforded to the appellant by the O.P.-Collector? (iii) Whether the order of the learned Single Judge as well as the Collector, Bolangir is sustainable in law? 7. To decide the first question it is necessary to examine the scope and ambit of Section 26 of the Orissa Grama Panchayat Act, 1964. 4 Relevant provision of Sub-section (1) of Section 26 of the Orissa Grama Panchayats Act, 1964 is extracted below. “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.” 8. Placing reliance on the decision of this Court in Smt. Parbati Majhi V. Collector, Kalahandi, 106(2008) CLT 525, learned counsel for the appellant submitted that a defeated candidate cannot file an application under Section 26 of the Act before the Collector challenging the election of Sarpanch. Under Section 30 of the Act a defeated candidate has to raise an election dispute before the Civil Courts challenging the election of the Sarpanch. 9. In the present case, admittedly the defeated candidates are Smt. Chinmayee Naik and Labanyabati Bag. They have not filed any petition before the Collector challenging the election of the writ appellant. One Gouranga Charan Naik and Pandab Bag have lodged complaint before the Collector. Merely because Gouranga Charan Naik and Pandab Bag are the husbands of the defeated candidates they cannot take the place of the defeated candidates. They are separate individuals holding separate voter identity cards. Therefore, the application filed by the husbands of the defeated candidates under Section 26 of the Act before the Collector 5 challenging the election of the writ appellant to the office of Sarpanch is maintainable. Learned Single Judge had also adjudicated this issue and held that merely because the wives of Gouranga Charan Naik and Pandab Bag were contestants in the election, their husbands cannot be rendered incompetent to lodge such complaint against the writ appellant. Therefore, the stand taken that the learned Single Judge has not considered the above point is not correct. 10. The second question relates to grant of reasonable opportunity of hearing to the elected candidate before she was declared disqualified. Sub-section (2) of Section 26 of the Act provides that 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. Appellant’s case is that since the dispute in the present case is regarding determination of date of birth of the last child, learned Single Judge should have remanded the case to the Collector with a direction to decide the case afresh giving opportunity to the writ petitioner to cross-examine the persons, authorities, filing report and documents and to provide opportunity to adduce rebuttal evidence. In support of his contention, he relied on the decision of this Court in Kataswar Khatua V. State of Orissa, represented through its Collector, Boudh & Ors., 97(2004) CLT 698 6 11. Placing reliance on a decision of this Court in Banamali Pande Vs. State of Orissa & Ors., 98(2004) CLT 792, it was contended that the disqualification under Section 26 of the Act is not sustainable as copy of the enquiry report was not supplied along with show cause notice to the appellant. 12. Placing reliance on the judgment of this Court in Smt. Pramila Pradhan V. State of Orissa, 99(2005) CLT 637, it was contended that Collector’s order canceling election of the Sarpanch basing on the letter dated 18.06.2007 of the Medical Officer, in-charge, P.H.C., Loisingha written to District Panchayat Officer that the appellant Mithila Seth has five number of children as per the survey register of village Badibahal G.P. in which it was stated that one of the younger children Suman Seth was born on 30.10.2002 without affording opportunity to rebut the said report is illegal and violative of principles of natural justice. 13. Similarly, placing reliance on the decision of this Court in Smt. Pabani Gajendra V. State of Orissa & Ors., 100(2005) CLT 708 it was contented that a person is elected as a representative of inhabitants of a Grama Sasan by the will of the people and while unseating such a person, the procedure prescribed under this Act must be strictly followed and should not be lightly dealt with. It is for this reason, the Legislature in its wisdom has provided for observing the principles of natural justice before taking such a decision under Section 26 of the Act. In the said case, it is further held that if the copies of the report were not supplied to the 7 petitioner nor the said officials were produced to be cross-examined by the petitioner so as to give an opportunity to hear for testing the veracity of the said report, it cannot be said that the principles of natural justice has been complied with. 14. Relying on a decision of this Court in Sri Gouranga Chandra Padhi V. State of Orissa & Ors., 2005 (Supp.) OLR 948 it was contended that when the public documents coming from the custody of the Public Officers contradict each other, the Collector should have permitted an opportunity of hearing to the appellant-petitioner after providing copies of such documents to him. He should have allowed him to produce rebuttal evidence. 15. There is no quarrel over the decisions of this Court relied upon by the appellant. Therefore, the question now arises as to whether reasonable opportunity has been afforded to the writ appellant to meet allegations levelled against her including production of rebuttal evidence. In the present case, in response to the complaint under Annexure-1 filed by Gouranga Charan Naik and Pandaba Bag, notice No.901 dated 30.03.2007 was sent to the writ appellant from the office of the Collector and District Magistrate, Bolangir, to show cause as to why on the basis of the complaint filed against her she shall not be declared disqualified to hold the office of Sarpanch, within a period of seven days from the date of receipt of the said show cause notice. Perusal of said show cause notice dated 30.03.2007 (Annexure-2) reveals that a copy of the complaint along with supporting 8 evidence, i.e., (i) certificate issued by Medical officer, P.H.C., Loisingha, (ii) date of birth as per admission register of Government Upper Primary School, Badibahal, supplied by the Public Information Officer of the D.I. of Schools, Bolangir and (iii) family survey report were sent to the writ appellant. In reply to the said show cause notice, the appellant filed a show cause reply on 13.04.2007 denying all the allegations. It was also denied that the appellant had more than two children after the cut off date, i.e., after 21.04.1995. In the said show cause reply, it is stated that the documents relied upon by the petitioner to substantiate their claim are manufactured documents which had been created for the purpose of the case. Moreover, some copies of the relied documents which have been supplied were not legible; therefore, necessary direction may be given to the petitioner to supply legible copies of the same. As per the recent pronouncement of the apex Court, documents relied upon cannot be admitted into evidence unless the same is proved in accordance with law. The show cause notice issued to the appellant has got no legal sanctity as the said notice nowhere disclosed under which provisions of law the appellant was called upon to file the show cause. As per Section 26 of the Act any complaint before the Collector has to be presented by the Sarpanch himself at the request of the Grama Panchayat or any of the Ward members of the Grama Panchayat. Sub-section (2) of Section 26 further provides that the Collector suo motu can also make an enquiry but if power under Section 26 of the G.P. Act is to be invoked on receipt of an application that must be 9 under sub-section (1). Persons who have filed the complaint have no locus standi for filing such application. The legality of the show cause notice issued by the District Panchayat Officer was challenged on the ground that he is not the competent authority to issue such letter. 16. Perusal of the show cause notice under Annexure-2 clearly reveals that not only the copy of the complaint petition but also all the documents proposed to be relied upon by the Collector were supplied to the appellant-petitioner. Copies of the certificate/reports relied upon by the Collector to disqualify the appellant have also been supplied to the petitioner for rebuttal. Therefore, principles of natural justice has been fully complied with and it can be safely concluded that reasonable opportunity of hearing has been afforded to the writ appellant as provided under Section 26 of the Act. In the show cause reply, the appellant-petitioner has never stated that the certificate issued by the Medical Officer, P.H.C., Loisingha, the entries made in admission register of Government Primary School, Badibahal G.P. supplied by the Public Information Officer of the D.I. of Schools, Bolangir and the family survey report any such entries have not been made as indicated in those reports. It is also noticed that the petitioner has not adduced any rebuttal evidence to disprove the certificates, admission register and family survey report even though the copy of the said documents were supplied to her and opportunity was given to her to meet those reports. The specific case of the writ appellant is that her last son was born on 10 03.12.1994, i.e., before the cut off date, i.e., 21.04.1995. Since this fact was within the special knowledge of the writ appellant, she should have adduced adequate evidence in support of her claim. She has not taken any step to prove her claim. Therefore, in the fact situation, adverse inference has to be drawn against the writ appellant. 17. Our above finding is in conformity with the law laid down by the apex Court in the case of Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, AIR 1968 SC 1413, wherein the apex Court following the Privy Council decision has held thus: “Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.” 18. The order of the Collector, Bolangir reveals that on his direction, the notice under Annexure-2 was sent to writ appellant for hearing and to explain her stand against the allegation. The very purpose of giving opportunity of hearing to an elected candidate and to bring the adverse materials collected against her to her notice has been complied with by notice under Annexure-2. In any event, we find there is substantial compliance of the principles of natural justice. Though the show cause notice was issued by the District Panchayat Officer on the 11 direction of the Collector, the complaint was heard and order was passed by the Collector himself. Therefore, the order of the Collector is not vitiated on the ground that Annexure-2 was issued by the District Panchayat Officer. 19. The third question is as to whether the orders of the learned Single Judge as well as the Collector, Bolangir are sustainable in law. For the reason stated in the foregoing paragraphs, we have no hesitation to hold that the judgment of the learned Single Judge as well as the order of the Collector, Bolangir, is valid and sustainable in law. We do not find any illegality or infirmity in the judgment of the learned Single Judge warranting any interference by this Court. 20. In view of the above, the Writ Appeal is dismissed. No order as to costs. ……………………... B.N.Mahapatra, J. V. Gopala Gowda, C. J. I agree. I agree. …....……………….. Chief Justice 12 Orissa High Court, Cuttack Dated 4th May, 2011/ssd/sss/skj