I.M. Quddusi, J.
1. This Writ Petition has been filed against the impugned Order Dated 19.1.2004 passed by the Additional District Judge, Sonepur in R.F.A. No. 32 of 2003 setting aside the impugned Order Dated 8.5.2003 passed by the Learned Civil Judge (Junior Division), Sonepur in M.J.C. No. 6 of 2002 and allowing the appeal declaring that the Petitioner had three children at the time when she contested the election of Sarpanch of Ranisarda Grama Panchayat which was held on 23.2.2002 and thereafter was elected as Sarpanch of that Grama Panchayat.
2. The Opposite Party Smt. Pratibha Badi filed an election petition registered as M.J.C. No. 6 of 2002 under Section 30 of Orissa Grama Panchayat Act against the Petitioner with a prayer that the election of the Petitioner to the office of Sarpanch of Ranisarda Grama Panchayat be declared as void and she (Opp. Party) be declared to have been duly elected to the office of Sarpanch. The Learned Civil Judge (Junior Division) dismissed the said election petition. However, the Learned Additional District Judge allowed the appeal and declared the election of the Petitioner as void, as mentioned above.
3. The Learned Civil Judge (Junior Division) framed the following issues:
ISSUES
1) Whether the O.P. has more than two children on the relevant date and is disqualified to contest the election for the office of Sarpanch, Ranisarda G.P?
2) Whether the election of the O.P. to the office of Sarpanch, Ranisarda G.P. is invalid due to such disqualification?
3) Whether the Petitioner is entitled to be declared as Sarpanch of Ranisarda G.P.?
4. The first issue was answered against the Opp. Party inter alia holding that the date of birth of the third child mentioned in Ext.-2 has no evidentiary value unless the person who gave information is examined. However, the Learned Additional District Judge turned down the finding of the Learned Civil Judge on the basis of the evidence adduced by the instant Opposite Party and allowed the election petition and declared the election of the instant Petitioner to the office of Sarpanch of Ranisarda Grama Panchayat to be void and a casual vacancy to the office of Sarpanch was created.
4.1 Before proceeding further it is necessary to mention here that in Section 39 of the Orissa Grama Panchayat Act, the grounds have been given on the basis of which the election of a returned candidate can be declared as void in which ground-(a) is that on the date of his election the candidate was not qualified or was disqualified to be elected under the provisions of this Act or the rules made thereunder.
5. Under Section 25, a person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Gram Panchayat constituted under the Act if he has more than two children. However, such disqualification shall not apply to any person who has more than two children on the date of commencement of the Orissa Grama Panchayats (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 election petition was filed on that ground alone. The Petitioner denied the existence of third child which was a female child and she was allegedly born in 2002. However, P.W. No. 3 namely Rabi Kanta Soren, who was posted as Statistical Clerk in C.H.C., Tarava, Sonepur had stated in his statement that he was maintaining Birth and Death Registers. He produced the Birth and Death Register, Ext-2 and proved the entry at SI. No. 80S dated 5.9.2000 referred to birth of one Sakhi Kuanr (F). Her father's name was Khageswar Kuanr and mother's name was Seema Kuanr and her date of birth was mentioned as 16.8.2000. She was the third child of her parents. He proved his own handwriting in which the entry was made. However in the cross examination he had stated that the Health Worker Suprava Majhi gave information relating to birth of Sakhi Kuanr. But he could not remember the date of information.
6. In her statement the instant Opp.Party as O.P.W. No. 1 staled 'I have two sons. I have not given birth to any daughter (female child) namely Sakhi Kuanr. So also I had no child by name Sakhi Kuanr'. Therefore, she had not stated that she had not given birth to any female child but had stated that she had not given birth to a female child whose name is Sakhi Kuanr. Hence, it cannot be said that she had not given birth to a female child at all after the birth of two sons. On the other hand the entry of the register was proved which O.P.W. No. 3 who was a Government Servant made in his own handwriting and his duty was to maintain the Birth and Death Register. The birth of a female child in question was registered on 5.9.2000 mentioning the date of birth as 16.8.2000. Therefore, the entry in the register was made only after the information of birth was given on 5.9.2000. The Petitioner contested the election in the year 2002. Therefore, it cannot be presumed that such entry which was made two years before the election was done with the mala fide intention to deprive the Petitioner from contesting any election to be held in future. The entry appears to have been made in its natural way and thus in our opinion the Learned Additional District Judge has rightly set aside the order of the Learned Civil Judge (Junior Division) and declared the election of the Petitioner as void.
7. The Writ Petition has no force and therefore the same is dismissed. No costs.
N. Prusty. J.
I agree.