A writ application is not maintainable to challenge the acceptance of a nomination paper for an election to the office of Sarpanch of a Grama Panchayat under the Orissa Grama Panchayats Act, 1964, on the ground that the candidate was disqualified under Section 25(1)(V) of the Act for having more than two children. The proper remedy is to file an election petition under Section 39 of the Act.

JUDGMENT :

A. Pasayat, J. - Petitioner calls in question legality of acceptance of nomination paper of opp. party No. 4 for election to the office of Sarpanch of Ruguda Grama Panchayat under the Orissa Grama Panchayats Act, 1964 (in short, 'the Act'). According to the petitioner, opp. patty No. 4 was not eligible to contest as he had more than two children by the appointed date.

2. The learned Additional Government Advocate raised a preliminary objection as regards maintainability of the application on the ground that an election dispute can be raised.

3. Mr. R. Mohapatra, learned counsel for, petitioner has referred to Clause (v) of Sub-section (1) of Section 25 of the Act which reads as follows, after, the amendment of the provisions by Orissa Act 6 of 1994:

"25. Disqualification for membership of Grama Panchayat _

(1) A person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he-

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(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 Panchayat (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;"

Essentially the question to be adjudicated is whether in fact opp. party No. 4 had more than two children by the appointed date thereby attracting disqualification. This involves a factual adjudication and writ application is not the appropriate remedy. Additionally improper rejection or acceptance of nomination paper gives rise to an election dispute. In this context Section 39 of the Act is relevant and the same roads as follows :

"39. Grounds for declaring election void-

(1) The Munsif shall declare the election of a returned candidate void, if he is of the opinion-

(a) that on the date of his election candidate was not qualified or was disqualified to be elected under the provisions of this Act or the rules made thereunders : or

(b) that any corrupt practice has been committed by the candidate :

(c) that any nomination paper has been improperly rejected or accepted : or

(d) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by majority of lawful votes : or

(e) that there has been any non-compliance with or breach of any of the provisions of this Act or the rules made thereunder :

Provided that in relation to matters covered by Clause (a) the Munsif shall have due regard to the decision, if any, made u/s 25 before making a declaration under this section.

(2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder such error, irregularity or informality has materially affected the result of the election."

Clause (c) of Sub-section (1) makes it clear that the Munsif snail declare the election of a returned candidate void, if he is of the opinion that the nomination paper has been improperly rejected or accepted. Therefore, an election dispute can be raised in respect of the grievances made.

4. There is another hurdle on the part of the petitioner to maintain the writ application. Article 230 of the Constitution of India. 1950 (in short, 'the Constitution') puts an embargo on entertaining a dispute relating to election. The said provision reads as follows :

"243O. Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any Court :

(b) no election to any Panchayat shall be called