JUDGMENT

I. M. QUDDUSI, J. — Heard Mr. Lalitendu Mishra, learned counsel for the petitioner and learned Additional Government Advocate.

2. Perused the record produced by the learned Additional Government Advocate.

3. This writ petition has been filed against the impugned order dated 3.4.2006 passed by the learned Collector, Kalahandi in G.P. Case No.6 of 2005 under Section 25 of the Orissa Gram Panchayat Act (hereinafter referred to as ‘the Act’) disqualify¬ing the petitioner to hold the post of Sarpanch of Chapriya G.P. in exercise of his power conferred upon him under Section 26 of the Act. The ground of disqualification of the petitioner has been indicated in the impugned order of the Collector that the petitioner has three living children.

4. At the outset, it is necessary to peruse the relevant provisions under Sections 25 and 26 of the Orissa Gram Panchayat Act, which are quoted hereunder :

“Disqualification for membership of Grama Panchayat

(1) a person shall be disqualified for being elected or nominated as a Sarpanch constituted under this Act, if he

xxx xxx xxx xxx

(v) has more than two children

Provided that the disqualification under Clause (v) 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.”

“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 applica¬tion 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) Whether 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 publica¬tion he shall be entitled to act as if he was not disqualified.”

The Clause V of Sub-section (1) of Section 25 was earlier in Orissa Gazette Extraordinary No.426 dated 18.4.1934 and substi¬tuted thereafter in Notification No.6139-Legis dated 18.4.1994 with effect from date of notification.

5. On the basis of the letter No.1121 dated 23.6.2005 of O.I.C. General and Misc. Section, Collectorate, Kalahandi and basing on the complaint of some members of Chapriya G.P. alleging that the petitioner has three children and is not eligible to hold the post of Sarpanch, the Collector asked the Child Develop¬ment Project Officer, Golamunda/District Panchayat Officer, Kalahandi vide his letter dated 1.8.2005 to inquire into the matter. The Child Development Project Officer, Golmunda, Kala¬handi vide his letter dated 30.8.2005 submitted his report to the Officer in Charge, Judicial Section, Collectorate, Kalahandi. The said letter is reproduced below :

“Letter No. 491 dt. 30.8.05

To

The O.I.C., Judicial Section

Collectorate, Kalahandi

Sub :- Submission of enquiry report about the Children of Cha¬priya G.P.

Ref :- Your letter No. 1485 dt. 10.8.05

Sir,

As per your letter No. 1485 dt. 10.8.05, I went to the village of Turechhada along with the concerned Sector Supervisor on 26.8.05 and enquired into the matter.

As reported by the Anganawadi Wor