A candidate cannot be declared elected merely based on receiving the second highest votes unless they prove eligibility under relevant laws following disqualification of another candidate.

JUDGMENT:

R.K. PATTANAIK, J.

For the sake of brevity and convenience, both the writ petitions have been clubbed together for disposal by the following common judgment.

1. W.P.(C) No.28836 of 2024: Instant writ petition is filed by the petitioner (shortly as ‘the election petitioner’) assailing the impugned judgment dated 12^th September, 2024 passed in connection with Election Appeal No.01 of 2024 by the learned District Judge, Gajapati- Paralakhimundi as at Annexure-2 to the extent denying him a declaration as duly elected Sarpanch of Chellagada Gram Panchayat and for a direction for the competent authority to take steps to fill up the vacancy by a fresh election, while setting aside the decision of the learned Civil Judge (Junior Division), R. Udayagiri in Election Petition Case No.03 of 2022 on the grounds stated.

2. W.P.(C) No.25066 of 2024: Whereas, the present writ petition is filed by the returned candidate and opposite party No.2 in W.P.(C) No.28836 of 2024 challenging the correctness, legality and judicial propriety of the impugned judgment in Election Appeal No.01 of 2024 of learned District Judge, Gajapati-Paralakhemundi and also the decision in Election Petition Case No.03 of 2022 on the grounds inter alia that the findings rendered therein as untenable for having not appreciated the material evidence on record in its proper perspective.

3. The election petitioner filed Election Petition Case No.03 of 2022 challenging the election of the returned candidate as the Sarpanch of the concerned GP primarily on the ground that the latter is having more than two children born after the cut-off date, hence, therefore, stands disqualified in view of Section 25(1)(v) of the Odisha Grama Panchayats Act, 1964 (hereinafter referred to as ‘the Act’). The learned Civil Judge (Junior Division), R. Udayagiri framed the following issues, such as;

(i) Whether the case is maintainable?

(ii) Whether the election petitioner has any locus standi and cause of action to file the petition?

(iii) Whether the returned candidate elected as the Sarpanch of the GP in question is liable to disqualification under Section 25(1)(v) of the Act for having more than two children born after the commencement of the Amendment Act, 1994, if not, within one year for such commencement of the Act?

(iv) Whether the election petitioner is entitled to such other reliefs with a declaration him to be duly elected as the Sarpanch consequent upon disqualification of the returned candidate? and

(v) To any other relief(s), the petitioner is otherwise entitled to as per law?

4. Upon receiving evidence, the learned Trial Court ultimately declared the election of the returned candidate as null and void and the election petitioner to be duly elected as per the result of the election dated 26^th February, 2022 in terms of Section 38 (2)(b) read with Sections 32 , 34 and 40 of the Act followed by a direction in that regard.

5. Being aggrieved of, the returned candidate approached the learned Court below and filed Election Appeal No.01 of 2024. The appeal was disposed of by a judgment dated 12^th September, 2024 confirming the disqualification of the returned candidate, however, interfered with the decision in declaring the election petitioner to be duly elected as the Sarpanch of the GP and set it aside with a consequential direction, in view of the casual vacancy created, to fill up the same by holding a fresh election. Being further dissatisfied,