The court upheld the disqualification of a panchayat member for having children beyond the legal limit, highlighting the evidential burden to demonstrate non-disqualification rests with the elected official.

ORDER :

D.Dash, J.

1. The petitioner, by filing this writ application, has assailed an order dated 01.10.2019 passed by the learned District Judge, Kandhamal, Phulbani in Election Petition No.02 of 2017.

The learned District Judge, by the impugned order, accepting the application filed by the opposite party no.5, as the petitioner therein under section 45-B of the Odisha Panchayat Samiti Act, 1959 (hereinafter, referred to as ‘the PS Act’), has held this petitioner (opposite party no.4 in the original petition) to be disqualified in terms of the provision of clause (v) read with the proviso thereto under sub-section (1) of section 45 of the PS Act.

2. The opposite party no.5, a sitting member of Daringibadi Panchayat Samiti, by filing an application before the learned District Judge, as provided under section 45-B of the PS Act, has sought for a declaration that this petitioner, the Chairperson of said Panchayat Samiti is disqualified on the ground that she has more than two children after the cut off date coming within the mischief of Clause (v) read with the proviso thereto under sub-section (1) of section 45 of the PS Act.

Notification for election of the members of the said Panchayat Samiti was issued by the State Election Commission on 27.12.2016. Finally after the election, the petitioner and the opposite party no.5 came to be elected as the members of Daringibadi Panchayat Samiti from the respective constituency as determined under sub-section 2-A of section 16 of the PS Act. The petitioner and the opposite party no.5 then contested in the election held for the Office of the Chairperson of the Panch-ayat Samiti in accordance with sub-section 3 of section 16 of the PS Act. The petitioner was finally elected as the Chairperson of said Panchayat Samiti.

3. The allegation has been made by the opposite party no.5 that the petitioner is disqualified to be a member of the Panchayat Samiti as per clause (v) read with the proviso thereto sub-section (1) of section 45 of the PS Act for having more than two children after the cut off date, i.e, 21.04.1995. The specific allegation is that the petitioner has in total six children and that was the situation on the date of filing of her nomination paper on 16.01.2017 and last child was born on 05.07.1996, which is after the cut off date, i.e, 21.04.1995.

The petitioner, in her show cause, while not denying the fact that she has six numbers of children, has specifically stated that the last child was born on 10.09.1994 and thus she is not disqualified to hold the Office of the Member and as such being elected as the Chairperson of the Panchayat Samiti.

4. The sole issue before the learned District Judge was whether the last child of the petitioner was born after 21.04.1995. In order to support their pleadings, parties have led evidence at length. The learned District Judge, upon analysis of the evidence on record both oral and documentary, has answered the issue favouring the case of the opposite party no.5 specifically holding that the sixth child of the petitioner was born on 5.7.1996. Consequently, the petitioner has been held as disqualified under Clause (v) read with proviso thereto under sub-section (1) to section 45 of the PS Act to hold the Office of Chairperson of the Panchayat Samiti. This answer has now been impeached in this writ application.

5. Before going to take note of the rival submissions of the learned counsels for the parties; it would be apposite to first place the scope of interference with the said finding of the learned District Judge in the matter of a petition under section 45-B of the PS Act read wit