The court emphasized the impact of unforeseen events on disqualification provisions and the uncertainty in determining the impact of a candidate's ineligibility on the election results.

JUDGMENT :

P.K. Misra, J. - The present petitioner was elected as the Sarpanch of Malheipada Grama Panchayat. Altogether there were four candidates. Present opposite party No. 1, who was the nearest candidate to the petitioner, filed Election Misc. Case No. 3 of 1997 before the Civil Judge (Junior Division), Deogarh, mainly on the allegation that the present petitioner was not eligible to contest for the office of Sarpanch as he was disqualified to file nomination in view of the provisions contained in Section 25(1)(v) of the Orissa Grama Panchayat Act, 1965 (hereinafter referred to as the "Act") having more than two children. The trial Court allowed the election petition, set aside the election of the present petitioner and declared present opposite party No. 1 to be duly elected. The said decision of the trial Court has been challenged by the present petitioner before the District Judge, Sambalpur, by filing Misc. (Election) Appeal No. 26 of 1997. During the pendency of the said appeal, the present petitioner filed an application for staying the operation of the judgment of the trial Court. The said petition for stay having been rejected by the appellate Court, the present revision has been filed.

2. In this revision, it has been contended by the counsel for the petitioner that prior to the introduction of the provision of Section 25(1')(v) of Orissa Act 4 of 1993, the petitioner had only one child and subsequently after the amendment was effected, his wife gave birth to twin children at a time. It is, therefore, contended that the birth of two children at a time was an unforeseen event and since the petitioner had only one child prior to the amendment, the subsequent delivery of twin children should not be considered as a circumstance bringing the case of the petitioner within the purview of disqualification contemplated in Section 25( 1 )(v) of the Act. It is not disputed that the birth of the twin had taken place beyond the period of one year contemplated in the proviso to Section 25 (1 )(v). In this back-ground, the appellate Court refused to pass an order of stay as it was of the prima facie view that the petitioner having more than two children was disqualified. Such primafacie view cannot be characterised as illegal or without jurisdiction at this stage.

3. The learned counsel for the petitioner also contended that the portion of the judgment of the trial Court wherunder present opposite party No. 1 was declared to be elected is palpably illegal and as such that portion of the judgment should have been stayed. There is no dispute that there were four candidates who had contested the office of Sarpanch. If the present petitioner was ineligible and would not have been allowed to contest the election, the votes polled by him would have been distributed among the various candidates and it cannot be said that opposite party No. 1 would have secured the highest number of votes, as it would not be possible to find out whether the wasted votes, that is to say, the votes polled by the petitioner would have gone to opposite party No. 1. In support of such contention, the learned counsel for the petitioner has referred to the decision of the Supreme Court reported in Thiru John Vs. The Returning Officer and Others. The learned counsel for opposite party No. 1, on the other hand, has placed reliance upon the decision reported in AIR 1969 SC 605 (Viswanatha Reddy v. Konappa Rudrappa Nadgouda and Anr., Since the matter is required to be disposed of by the appellate Court on merit, it may not be proper to express any opinion on the rival contentions raised at this stage, but prima facie, the contention raised by the petitioner cannot be rejected out of hand. The aforesaid aspect does not appear to have been considered by the appellate Court. It is, therefore, necessary that the appellate Court should re-consider the question of stay so far as it relates to the declaration to the effect that present opposite party No. 1 has been duly el