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2003 DIGILAW 56 (ORI)

Sabitri Das v. Saraswati Barik

2003-01-21

PRADIP MOHANTY, R.K.PATRA

body2003
JUDGMENT R. K. PATRA, J. — The petitioners have filed this writ petitioner praying for transfer of Election Dispute Case No.9 of 2002 from the Court of Civil Judge (Junior Division), Pattamundai to the Court of Additional District Judge, Kendrapara for trial along with Election Dispute Case Nos.1 and 2 of 2002 pending on his (Additional District Judge, Kendrapara) file. 2. Petitioner No.1 is the wife of petitioner No.2. Peti¬tioner No.1 has been elected as Sarpanch of Kantapada Gram Panchayat. Petitioner No.2 has been elected as one of the members of the Zilla Parishad, Kendrapara. Opp. Party No.1 has filed Election Dispute Case No.9 of 2002 challenging the election of petitioner No.1 in the Court of Civil Judge (Junior Division), Pattamundai. Similarly Election Dispute Case Nos. 1/5 of 2002 and 2/6 of 2002 have been filed against petitioner No.2 by Opp. Party Nos. 3 and 4 respectively in the Court of Additional District Judge, Kendrapara. Elections of both the petitioners are under challenge on the common ground that they have begotten 3rd child after the cut off date and, as such, they have ensured the disqualifica¬tion under the provisions of the Orissa Grama Panchayat Act, 1964 and the Orissa Zilla Parishad Act 1991. The contention of the petitioners is that since common issue is involved in the election disputes pending before the two different form, they should be tried together by one forum to avoid conflict of deci¬sions. 3. For the sake of convenience and to avoid conflict of decisions ordinarily, the prayer of the petitioners would have been accepted but the election disputes have been filed under two different special statutes, i.e., the Orissa Gram Panchayat Act, 1964 and the Orissa Zilla Parishad Act, 1991. Petitioner No.1 election as Sarpanch is under challenge before the designated authority, i.e., the Civil Judge (Junior Division), Pattamundai, Section 31 of the Orissa Gram Panchayat Act provides that election peti¬tion shall be presented before the Munsif (now designated as Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama sasan is situated. Petitioner No.1 election as Sarpanch is under challenge before the designated authority, i.e., the Civil Judge (Junior Division), Pattamundai, Section 31 of the Orissa Gram Panchayat Act provides that election peti¬tion shall be presented before the Munsif (now designated as Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama sasan is situated. Section 38 (3) of the said Act provides that all orders of the Munsif shall be final and conclusive subject to the provisions of Sub-Section (4) under which any person aggrieved by an order of the Munsif may prefer an appeal before the District Judge having jurisdiction, Petitioner No.2 is facing election dispute in the Court of Additional District Judge, Kendrapara which is the designated authority to entertain election dispute under Section 32 of the Orissa Zilla Parishad Act, 1991. Appeal against his order lies to the Court exercising Civil appellate jurisdiction over the District Judge (vide Sec¬tion 38(2) (iv). Both the statutes, mentioned above, confer jurisdiction to try election disputes on two specified and desig¬nated forums. Therefore, this Court in exercise of writ jurisdic¬tion cannot confer jurisdiction on an authority to which the Statute has not permitted to try the dispute. In the circumstances, we are not inclined to accede to the prayer made by the petition¬ers for transfer of one election dispute to another Court which has no inherent jurisdiction to try the same we at the same time cannot lose sight of the fact that one common issue is involved in both the form and there is likelihood of conflict of decisions. Therefore, in the interest of justice, we direct the learned Additional District Judge, Kendrapara to first try Election Dispute Case Nos. 1/5 and 2/6 of 2002 pending on his file. Till disposal of the said election disputes, there shall be stay of further proceedings in Election Dispute Case No.9 of 2002 pending in the Court of Civil Judge (Junior Division), Pattamundai. We give liberty to the election petitioner of Election Dispute Case No. 9 of 2002 pending in the Court of Civil Judge (Junior Division), Pattamundai to be impleaded as one of the parties in the election dispute pending before the learned Additional District Judge, Kendrapara so that she may have the chance to adduce evidence in support of her case. With the aforesaid observations and directions, the writ petition is disposed of. With the aforesaid observations and directions, the writ petition is disposed of. PRADIP MOHANTY, J. I agree. Petition disposed of.