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2004 DIGILAW 487 (ORI)

Darasingh Kumbhar v. State of Orissa

2004-11-03

L.MOHAPATRA

body2004
ORDER 3.11.2004 — This writ appeal was heard on the question of jurisdiction of the Hon’ble Single Judge in deciding the writ petition as a preliminary issue. W.P. (C) No.5065 of 2004 from which this appeal arises had been filed challenging the order dated 21.4.2004 passed by the learned Additional District Judge, Sone¬pur reversing the finding and order passed by the learned Civil Judge (Junior Division), Sonepur in an election petition filed under Section 30 of the Orissa Grama Panchayats Act, 1964. 2. There is no dispute at the Bar that as per amended rules of this Court, writ applications relating to the Orissa Grama Panchayats Act, 1964 are to be heard by Division Bench. However, the aforesaid writ application was listed before the Hon’ble Single Judge who disposed of the same by his order dated 6.7.2004. It was contended by the learned counsel for the appel¬lant in this writ appeal that the Hon’ble Single Judge had no jurisdiction to entertain the writ application as the amended rules of this Court provided that such writ applications are to be heard by Division Bench. On the above basis, it was further contended that the order passed by the Hon’ble Single Judge is without jurisdiction. The learned counsel appearing for the respondents on the other hand submitted that when the matter was taken up before the Hon’ble Single Judge, the jurisdiction of the Hon’ble Single Judge in hearing such matter was never questioned by the present appellant and, therefore after disposal of the same by the Hon’ble Single Judge the said question cannot be enter¬tained. The learned counsel for both the parties relied on cer¬tain decisions of this Court as well as Apex Court in favour of their respective contentions. The learned counsel for the re¬spondents relied on the decision of the Apex Court in the case of Koopilan Uneen’s daughter Pathumma and others v. Koopilan Uneen’s Son Kuntalan Kutty and others reported in AIR 1981 S.C. 1683 . The Apex Court in the aforesaid case held as follows : “In order that an objection to the place of suing may be entertained by an appellate or revisional Court, the fulfillment of the following three conditions is essential : (1) The objec¬tion was taken in the Court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (3) There has been a consequent failure of justice. All these three conditions must co-exist. Where the High Court upheld the objection to the territorial jurisdiction of a Court in appeal,the order of the High Court would be liable to be set aside even if the objection was raised at the proper time when the objector was unable to show that the trial in a wrong Court had led to a failure of justice.” Reliance was also placed in the case of Indermani Kirtipal v. Union of Indian and others reported in AIR 1996 S.C.1567. In the said case a matter relating to promotion of an employee was decided by a single Member of the Tribunal. It was contended before the Apex Court that a single Member was not competent to decided the question in the issue and, therefore, the order was without jurisdiction. The Apex Court in the said case held as follows : “........... Since the Tribunal consists of several members, a bench consisting of a single member may also be competent to dispose of certain matters. The matter having been decided by him after considering the case on merits, it is no longer open to the unsuccessful party to plead that the member had no jurisdiction to decide the issue or that the order suffers from initial lack of jurisdiction. It may be a case of improper disposal of the matter without touching the jurisdiction of the member who decid¬ed the matter.” Reliance was also placed on a decision of this Court in the case of K. Shankar Rao Dora v. T. Boishnaba Dora and others reported in 1987 (I) OLR 55. This Court in the aforesaid case held as follows : “Where objection as to jurisdiction has not been taken in the Court of first instance, objection to that effect shall not be entertained by the appellate Court. Where objection has been taken in the Court of first instance but the disposal of the suit has not been prejudicially affected, the appellate Court has to ignore the objection and proceed to dispose of the appeal as if there was no defect of jurisdiction. Where objection has been taken in the Court of first instance but the disposal of the suit has not been prejudicially affected, the appellate Court has to ignore the objection and proceed to dispose of the appeal as if there was no defect of jurisdiction. Clauses (a) and (b) though connected by the expression ‘or’ are to be read conjunc¬tively X X X X. The principle underlying the provisions is that when a case has been tried by a Court on merits and judgment recorded, it should not be liable to be reversed purely on tech¬nical grounds, unless it has resulted in failure of justice and the policy of the legislature has been to treat objection to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court unless there has been a prejudice on merits. The aforesaid view gets further support from the amendment of Sec.21 of the Code of Civil Procedure by way of insertion of Sub-sec. (2) by the Code of Civil Procedure (Amendment) Act, 1976.” The learned counsel for the appellant on the other hand cited two decisions of the Apex Court in the case of State of Rajasthan v. Prakash Chand and others reported in AIR 1998 S.C. 1344 and in the case of Inder Mani and others v. Matheshwari Prasad and others reported in (1996) 6 Supreme Court Cases 587. In both the above cases the Apex Court held that the admin¬istrative control of the High Court vests in the Chief Justice of the High Court alone and that it is his prerogative to distrib¬ute business of the High Court both judicial and administrative. He alone, has the right and power to decide how the Benches of the High Court are to be constituted; which Judge is to sit alone and which cases he can and is required to hear as also as to which Judges shall constitute a Division Bench and what work those Benches shall do. In other words the Judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance with the directions of the Chief Justice. In other words the Judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance with the directions of the Chief Justice. That necessarily means that it is not within the competence or domain of any Single or Divi¬sion Bench of the Court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. Therefore in the scheme of things judicial disci¬pline demands that in the event a single Judge on a Division Bench considers that a particular case requires to be listed before it for valid reasons, it should direct the Registry to obtain appropriate orders from the Chief Justice. The puisne Judges are not expected to entertain any request from the Advo¬cates of the parties for listing of case, which does not strictly fall within the determined roster. 3. Undisputedly when the matter was taken up before the Hon’ble Single Judge, advocates of either party did not point out that the Hon’ble Single Judge did not have the jurisdiction to hear the writ application in view of the amended rules of this Court. The same having not been brought to the notice of the Hon’ble Single Judge by the advocates of either party, the writ application was disposed of by the Hon’ble Single Judge without the question of jurisdiction being decided. It was contended by the learned counsel for the respondents that the question of jurisdiction having not been taken at the first instance before the Hon’ble Single Judge, is not available to be taken at the appellate stage and such contention was raised on the basis of three decisions cited by him. On the other hand it was contended by the learned counsel for the appellant that two decisions of the Apex Court cited by him are squarely applicable to the ques¬tion raised before this Court and, therefore, the impugned order should be set aside. 4. There is no dispute with regard to proposition laid down by the Apex Court in three decisions cited by the learned counsel for respondents that question with regard to territorial and/or pecuniary jurisdiction has to be raised at the first in¬stance. 4. There is no dispute with regard to proposition laid down by the Apex Court in three decisions cited by the learned counsel for respondents that question with regard to territorial and/or pecuniary jurisdiction has to be raised at the first in¬stance. There is no dispute that such question was never raised before the Hon’ble Single Judge and, therefore, the writ applica¬tion was disposed of by the Hon’ble Single Judge. However, the amended rules of this Court clearly provided that writ applica¬tions relating to the Orissa Grama Panchayats Act, 1964 shall be heard by a Division Bench. Though factually the decisions cited by the learned counsel for the appellant have no application to the present case, the observation made by the Apex Court in both the cases have full application. Undisputedly so far as this Court is concerned, the Chief Justice has assigned matters to different single and division Benches in terms of the amended rules. It was the duty of the advocates appearing for the parties before the Hon’ble Single Judge to bring the same to the notice of the Hon’¬ble Single Judge. Though it is a fact that the Hon’ble Single Judge was kept in dark about such rules, never the less as per the rules, the Hon’ble Single Judge has no jurisdiction to hear the writ application. We are therefore of the view that the order passed by the Hon’ble Single Judge is without jurisdiction and, therefore, is liable to be set aside. 5. We accordingly allow the writ appeal on the above ground alone, set aside the impugned order passed by the Hon’ble Single Judge and direct the writ application (W.P.(c) No.5065 of 2004) be listed before any assigned Division Bench for disposal. Appeal allowed.