The main legal point established in the judgment is that the Collector has the jurisdiction under Section 26(2) of the Odisha Grama Panchayat Act, 1964 to decide the disqualification of a candidate for not meeting the minimum age requirement under Section 11(a)(i) of the Act.

JUDGMENT

S.K. Mishra, J. - 'Whether Collector of a district has jurisdiction under Section 26 (2) of the Odisha Grama Panchayat Act, 1964 to decide the question of disqualification of a returned candidate for not having the requisite qualification under Section 11(a)(i) of the aforesaid Act for not having attained the minimum age of 21 years for the post of Sarpanch of a Grama Panchayat.'

2. The above question arose in this intra-Court appeal. The appellant, being the petitioner before the Collector, Nuapada assails the correctness of order dated 09.04.2019 passed by the learned Single Judge in W.P.(C) No.2924 of 2019, wherein he set aside the order passed by the learned Collector, Nuapada in exercise of jurisdiction under Section 26, read with Section 11 (a)(i) of the Odisha Grama Panchayat Act, 1964, hereinafter referred to as 'Act' for brevity.

The respondent no.3 was elected as a Sarpanch of Saliha Grama Panchayat of Nuapada block on 27.02.2017. A petition under Section 26 of the Act was filed by the appellant and others on the ground that nomination of the respondent no.3 was accepted illegally as she has not attained the age of 21 years on the date of filing of the nomination and as such, she was not qualified to the post of Sarpanch as per Section 11 (b) of the Act. The Collector, Nuapada issued notices and after accepting evidences etc came to the conclusion that the respondent no.3, opposite party before him, had not attained the minimum age prescribed in Section 11 (b) of the Act at the time of filing nomination for the post of Sarpanch, as her date of birth is 29.09.1997. Accordingly, he declared the respondent no.3-Manita Sahu to be disqualified for being elected as Sarpanch of Saliha Gram Panchayat of Nuapada Panchayat Samiti and her election for the said post was declared to be void and illegal.

3. The learned Single Judge after taking into consideration the materials placed before him and relying upon a judgment of this Court in W.P.(C) No.3321 of 2018 held that the allegation with regard to not attaining the age of 21 i.e. the age of eligibility is a violation of Section 11 (b) of the Act, and it can only be challenged in a election petition filed under Section 30 of the Act and the allegation made does not come within the purview of Section 25 of the Act. Hence, he held that the Collector should not have exercised the jurisdiction under Section 26 of the Act and therefore, allowed the writ petition and quashed the order passed by the Collector, Nuapada.

4. The appellant filed an application before the Collector, Nuapada that the respondent no.3 was under age at the time of filing of the nomination, which can be known from reliable source. The respondent no.3 suppressed her date of birth and filed a false affidavit. The appellant examined the Head Master, Government UG High School, Magurpani and the information dated 28.12.2016 and 22.12.2017 obtained under the Right to Information Act has been exhibited. It was established before the Collector that the respondent no.3-Manita Sahu was admitted in the School having date of birth 29.09.1997. The respondent no.3-petitioner in W.P.(C) No.2924 of 2019 has not given an alternative date with regard to her date of birth. In other words, the petitioner has not put an alternative case that she was born on a particular date to make her eligible to contest the election of Sarpanch having attained the age of 21 on the date of nomination. She has only relied upon averments and the document filed as Annexure-5 to the writ petition, which happens to be copy of the electoral roll prepared by the State Election Commissioner for Saliha Grama Panchayat, that she was 22 years on 2017. The contentions raised before the learned Single Judge are that the lack of qualification mentioned in Section 11(b) of the Act cannot be adjudicated upon or answered in a proceeding under Section 26 of the Act as the Section 26 of the Act is confined only to the disqualification referred to in Section 25