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2004 DIGILAW 13 (ORI)

Sridhar Gantha v. State of Orissa

2004-01-09

A.S.NAIDU

body2004
JUDGMENT A. S. NAIDU, J. — The interim order dated 15.5.2003 passed by the learned Civil Judge (S.D.), Koraput in I.A.No. 12 of 2003 declining to stay operation of the order passed in Election Case during the pendency of a review petition is impugned in this case. 2. The petitioner was elected as a Samiti Member of Kumb¬hari Grama Panchayat under Narayan Patna Block. Thereafter, he was elected as the Chairman of the said Block. While the matter stood thus, an Election Petition was filed by Opp. Party No. 2 under Section 44-B of the Orissa Panchayat Samiti Act, 1959 (hereinafter referred to as ‘the Act’), inter alia, challenging the election of the petitioner as a Member which was registered as M.J.C. No. 14 of 2002. Another Election Petition was also filed challenging the election of the petitioner to the Post of Chair¬man of Narayan Patna Block on identical grounds i.e., the peti¬tioner was not eligible to get elected from reserved constituency and as such his election is liable to be set aside. 3. The petitioner who was impleaded as Opp. Party No. 3 in MJC No. 14 of 2002 appeared and filed his counter. On the basis of the inter se pleadings, the learned Civil Judge (Sr. Divn), Koraput framed several issues one of the same being whether the said Court has jurisdiction to try and decide the question of disqualification. A petition was filed by the present petitioner to decide the issue of jurisdiction as preliminary issue. The said petition was rejected by the Court below as the said issue involves both facts and law. It is alleged that though the present petitioner filed an application to defer the hearing as he wanted to challenge the order by filing a revision, the Court below rejected the same and proceeded with the case, virtually ex parte against the present petitioner. Being aggrieved by the order dated 19.4.2003 rejecting the petition to decide the ques¬tion of jurisdiction as preliminary issue, the petitioner filed revision which was registered as Civil Revision No. 5 of 2003 before the learned District Judge, Koraput, Jeypore. The peti¬tioner also filed an application under Section 44-J and 44-F of the Act read with Order 9, Rule 13 C.P.C. to review the order dated 9.5.2003. With the said review petition, the petitioner filed another petition praying to stay operation of the order dated 9.5.2003. The peti¬tioner also filed an application under Section 44-J and 44-F of the Act read with Order 9, Rule 13 C.P.C. to review the order dated 9.5.2003. With the said review petition, the petitioner filed another petition praying to stay operation of the order dated 9.5.2003. By the impugned order, the Court below rejected the said petition on the ground that the order dated 9.5.2003 was passed after hearing both the parties on contest and there is no good and sufficient ground to stay operation of the said order pending decision in the review petition. 4. Mr. Das, learned counsel for the petitioner in course of argument drew our attention to the proviso to Section 44-J of the Act and submitted that it was incumbent upon the Election Commissioner to direct stay of operation of the order, challeng¬ing which a review had been filed. According to Mr. Das, the word ‘may’ used in the proviso should be construed as ‘shall’. Accord¬ing to Mr. Das, Court below without properly understanding the proviso to Section 44-J, has declined to stay operation of the order and the impugned order is, thus, not sustainable in law. 5. For sake of better understanding, relevant sub-section and proviso to Section 44-J are quoted below : “44-J. Decision of Election Commissioner - (1) If the Elec¬tion Commissioner, after making such enquiry, as he deems neces¬sary finds in respect of any person whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and may award costs at his discretion. (2) xx xx xx xx (3) xx xx xx xx (4) All orders of the Election Commissioner shall, subject to the order passed in an appeal, if any, be final and conclu¬sive; Provided that the Election Commissioner may, on application presented within one month from the date of any of the orders made under this section or under Section 44-K by any person aggrieved, review such order on any ground and may, pending deci¬sions' in review direct stay of operation of such order”. (Emphasis supplied) 6. Mr. Das, in support of his contention that the word ‘may’ used in the Proviso should be construed as ‘shall’ has relied upon the decision of the Supreme Court in the case of Shri Rangaswamy, The Textile Commissioner and others vrs. (Emphasis supplied) 6. Mr. Das, in support of his contention that the word ‘may’ used in the Proviso should be construed as ‘shall’ has relied upon the decision of the Supreme Court in the case of Shri Rangaswamy, The Textile Commissioner and others vrs. The Sagar Textile Mills (P) Ltd. and another, AIR 1977 SC 1516 . In the said case the Supreme Court held as follows: “The word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation, the word ‘may’ which denotes discretion should be construed to mean a command”. 7. Law is well settled that the word ‘may’ is prima facie enabling and permissive. It is no doubt true that rule of inter¬pretation permit the interpretation of the word ‘may’ in certain context as ‘shall’ and vice versa. But then, such interpretation cannot be made in all cases. The word ‘may’ ‘shall’ and ‘must’ do manifest the intention of the Legislature and they may indicate whether the provision of rules are directory, mandatory or com¬pulsory. Law is also well settled that when the Legislature in its wisdom deliberately used the word ‘shall’ at some places and ‘may’ at other places, in a very enacting provision, normally the Court cannot read the word ‘may’ as ‘shall’. In other words, when the Legislature has used the words ‘may’ and ‘shall’ in the same provision, that itself is a clear indication that the word ‘may’ has been used as enabling and permissive sense. Reading of Section 44-J of the Act would clearly reveal that the Legislature in its wisdom has used the word ‘shall’ in different context of the said section whereas it has used the word ‘may’ in the provi¬so. In such circumstance, we are unable to accept the submission made by Mr. Das that the word ‘may’ appearing in the proviso should be construed as ‘shall’. 8. Be that as it may, as would be evident from different Election laws, the Legislature always intended that the Election disputes should be heard and disposed of as expeditiously as possible. Interference with different interlocutory orders in exercise of extraordinary writ jurisdiction would otherwise frustrate the intention of the Legislature. 8. Be that as it may, as would be evident from different Election laws, the Legislature always intended that the Election disputes should be heard and disposed of as expeditiously as possible. Interference with different interlocutory orders in exercise of extraordinary writ jurisdiction would otherwise frustrate the intention of the Legislature. Even otherwise, after perusing the impugned order, we are satisfied that the Court below has not committed any error and according to us, it is not a fit case where the impugned order should be interfered with in exercise of our writ jurisdiction. Accordingly the writ petition is dismissed. No costs. THE CHIEF JUSTICE I agree. Petition dismissed.