Ajaya Behera vs Sk. Kadam

Dr. Akshaya Kumar Rath, J.—Challenge is made to the order dated 18.4.2013 passed by the learned Single Judge in WP(C) No. 7367 of 2013 dismissing the same and thereby confirming the order dated 8.3.2013 passed by the learned District Judge, Bhadrak in FAO No. 11 of 2013. By order dated 8.3.2013, learned District Judge upheld the order dated 6.2.2013 passed by the learned Civil Judge (Junior Division), Bhadrak in Election Misc. Case No. 60 of 2012, holding, inter alia, that the appellant is disqualified to the post of Sarapanch of Padhanpada Gram Panchayat under Bonth Block in the district of Bhadrak. Heard Mr. S.P. Mishra, learned Senior Advocate, for the appellant.

Mr. Mishra, learned Senior Advocate, argues with vehemence that the learned Single Judge has not assigned any reason while dismissing the writ application.

Respondent as petitioner laid an election dispute in the court of learned Civil Judge (Junior Division), Bhadrak, which is registered as Election Misc. Case No. 60 of 2012. The case of the respondent is that the nomination papers for the office of Sarpanch, Padhanpada Gram Panchayat were filed from 7.1.2012 to 12.1.2012. Appellant and respondent filed their nomination papers besides three other persons. The specific case of the respondent is that the appellant''s first child Manasi Behera was born on 13.6.1989, second child Subhashree on 15.4.1994, third child Rajashree on 2.2.1997 and fourth child Abhisekh on 4.3.2000. In view of the fact that third and fourth children were born after the cut off date, the appellant was disqualified to hold the post of Sarpanch.

Pursuant to the issuance of notice, appellant entered appearance and filed objection denying the assertions made in the election petition. It is stated that Manasi and Subhashree are the natural born daughters born on 13.6.1989 and 15.4.1994 respectively. Rajashree and Abhisekh are the children of Krushna and Shanti. He has adopted Abhisekh as his son. As he has only two natural born children, who were born prior to the cut off date, he is not disqualified to hold the office of Sarpanch.

Stemming on the pleadings of the parties, the learned Tribunal has struck seven issues. While answering issue nos. 3 and 4, learned trial court came to hold that Rajashree and Abhisekh are the natural born children of the appellant. They were born after the cut off date. Challenging the same, the appellant filed an appeal before the learned District Judge, Bhadrak, which was registered as FAO No. 11 of 2013. In an elaborate judgment, learned appellate court confirmed the findings of the learned trial court.

Respondent as P.W. 1 has proved the admission register of Rajashree, which was marked as Ext. 3. The same shows that Rajashree was born on 2.2.1997 through Anusaya and Ajay. P.W. 3 is the Headmaster of Banabihari Nodal School. He has proved the admission register of Rajashree. The register reveals that Ajay is the father of Rajashree. The school leaving certificate marked as Ext. 4 also reveals that Rajashree is the daughter of Ajay and Anusaya. So far as Abhisekh is concerned, P.W 1 has deposed that Abhisekh is the natural born son of Ajay and Anusaya. The admission register of Panchayat High School received under the R.T.I. Act was exhibited as Ext. 8. The same reveals that Abhisekh was born on 24.3.2000 and he is the son of Ajay and Anusaya. The respondent examined as O.P.W. 1 has deposed that Abhisekh is the natural born son of Krushna and Shanti and he adopted Abhisekh on 29.1.2001 on the date of Saraswati Puja. Shanti, examined as O.P.W. 2, has deposed that Abhisekh is her natural born son who was given in adoption to the appellant. In her cross-examination she has stated that she does not remember the date, day on which giving and taking ceremony was held. Appellant had filed the horoscope of Abhisekh which has been marked as Ext. X. The same reveals that Abhisekh was born on 24.2.2001. The appellant in his evidence has deposed that Abhisekh was adopted by him on 29.1.2001. Learned appellate court came to hold that the evidence of O.P.W. 1 cannot be believed as Abhisekh cannot be adopted on 29.1.2001 as he was born on 24.2.2001.

We are in consensus ad idem with the findings of the courts below. We fail to understand as to how Abhisekh was adopted on 29.1.2001 when he was born on 24.2.2001. Rather the documents exhibited on behalf of the respondent would unerringly show that two children of appellant party were born after the cut off date. In view of the same, the appellant is disqualified to hold the post of Sarpanch.

We find no error with the findings of the courts below as well as learned Single Judge. In view of the analysis made in the preceding paragraph, the writ appeal is dismissed.