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2008 DIGILAW 988 (ORI)

ASHOK KUMAR SAHU v. RAGHAB CHANDRA BHOI

2008-11-04

M.M.DAS

body2008
JUDGMENT : 1. Heard Mr. Choudhury, learned Counsel for the Petitioner and Mr. S.K. Patra, learned Counsel appearing for the opp. party No. 1. 2. The opp. parties 2 and 3 have not entered appearance in spite of valid service of notice. 3. The writ Petitioner was the returned candidate to the office of Sarpanch of Bharasuja Grama Panchyat under Agalpur Panchayat Samiti in the district of Bolangir. His election to the office of Sarpanch has been challenged by the opp. party No. 1, who is a defeated candidate, in Election Dispute Misc. Case No. 16 of 2007 before the learned Civil Judge (Junior Division), Bolangir. The Petitioner filed an application during the course of hearing of the election dispute, inter alia, alleging that the said learned Civil Judge (Jr. Division) had no territorial jurisdiction under Sub-section (1) of Section 3 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act') to hear the said case. The other point raised by the Petitioner is that the election petition also suffers from non-joinder of necessary party, i.e. the Election Officer. 4. The learned Civil Judge (Jr. Division), Bolangir by the impugned order dated 7.7.2007 under Annexure-3 came to the conclusion that the Act clearly provides that the Civil Judge (Jr. Division) has to try the election dispute in accordance with the provisions of Chapter-V of the Act. Therefore, the Act prescribes that the Civil Judge (Jr. Division) is to try the dispute not in the capacity of the Civil Court where the power of Addl. Civil Judge (Jr. Division) is included, but as a persona designata. On the above ground, the learned Civil Judge (Jr. Division) rejected the petition filed by the writ Petitioner. 5. Mr. Choudhury, learned Counsel for the Petitioner vehemently urges that the learned Election Tribunal has misconstrued the provisions of Section 31 of the Act which stipulates that the election petition shall be presented before the Civil Judge (Jr. Division) having jurisdiction over the place at which the office of the Grama Sasan is situated. He, therefore, submits that the learned Election Tribunal without taking into consideration that the election petition under the Act can be filed before the Civil Judge (Jr. Division) having jurisdiction over the place at which the office of the Grama Sasan is situated. He, therefore, submits that the learned Election Tribunal without taking into consideration that the election petition under the Act can be filed before the Civil Judge (Jr. Division), within the territorial jurisdiction of which court, the office of the Grama Sasan is situated, only relying upon the words in the said section that the petition should be presented before the Civil Judge (Jr. Division), even though the office of the Grama Sasan is not situated under the jurisdiction of the Election Tribunal, i.e., Civil Judge (Jr. Division), Bolangir, erroneously held that the petition could not have been filed before the Addl. Civil Judge. (Jr. Division), Loisinga. Mr. Choudhury also refers to Section 2(c) of the Orissa Civil Courts Act and submits that in the said Act, it has been clearly stipulated that the court of the Civil Judge (Jr: Division), shall include the court of Addl. Civil Judge (Jr. Division). He further contends that no doubt, the Orissa Civil Courts Act applies to Civil Courts and not to a court prescribed under a special statute like the Orissa Grama Panchayat Act, but, nevertheless, since the Act prescribes that the election dispute can only be filed before the court of Civil Judge (Jr. Division) having territorial jurisdiction over the office of the concerned Grama Sasan, the petition filed by the writ Petitioner before the election tribunal should have been allowed. 6. Relevant portion of Section 31 of the Orissa Grama Panchayat Act, 1964 is quoted herein below:- 31. Presentation of petitions: (1) The petition shall be presented on one or more of the grounds specified in Section 39 before the [Civil Judge (Junior Division)] having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs within fifteen days after the date on which the name of the person elected is published u/s 15: xx xx xx 7. Section 2 of the Orissa Civil Courts Act is asunder: 2. Classes of Civil Courts-(1) There shall be the following classes of Civil Courts under this Act, namely: (a) The Court of the District Judge which shall include the Court of the Addl. Section 2 of the Orissa Civil Courts Act is asunder: 2. Classes of Civil Courts-(1) There shall be the following classes of Civil Courts under this Act, namely: (a) The Court of the District Judge which shall include the Court of the Addl. District Judge; (b) The Court of the Civil Judge (Senior Division) which shall include the Court of the Additional Civil Judge (Senior Division); and (c) The Court of Civil Judge (Junior Division), which shall include the Court of Additional Civil Judge (Junior Division) (2) The Court of the District Judge shall be the principal Court of original civil jurisdiction in the district. Explanation-For the purposes of this Sub-section the expression "District Judge" shall not include an Additional District Judge. 8. On an analysis of Section 31 of the Act quoted above, it would be clear that not only that the election petition is prescribed to be filed before the Civil Judge (Jr. Division), but it is also necessary that the concerned Grama Sasan in respect of which the election dispute is raised, must be situated within the territorial jurisdiction of the said Civil Judge (Jr. Division). Since in the instant case, the Civil Judge (Jr. Division), Bolangir, who passed the impugned order, has no territorial jurisdiction over the concerned grama sasan, he cannot exercise jurisdiction in deciding the election dispute. The Additional Civil Judge (Jr. Division), Loisinga under whose territorial jurisdiction the concerned Grama Sasan is situated, can only have jurisdiction to entertain and try the election dispute and for this limited purpose, the classes of Civil Courts as mentioned in the Orissa Civil Courts Act shall come into play and the Additional Civil Judge (Jr. Division), Loisinga shall be construed to be the Civil Judge (Jr. Division), for the purpose of Section 31 of the Act. 9. In view of the above interpretation, this Court is of the opinion that the learned Election Tribunal, i.e., Civil Judge (Jr. Division), Bolangir acted contrary to law in not allowing the application filed by the writ Petitioner and transferring the case to the court of the learned Additional Civil Judge (Jr. Division), Loisinga. 10. It is, therefore, directed that the learned Civil Judge (Jr. Division), Bolangir, on production of a certified copy of this order before him, shall remit the case record to the learned Additional Civil Judge (Jr. Division), Loisinga. 10. It is, therefore, directed that the learned Civil Judge (Jr. Division), Bolangir, on production of a certified copy of this order before him, shall remit the case record to the learned Additional Civil Judge (Jr. Division), Loisinga at the cost of the election Petitioner, who shall deposit such cost on assessment. After receiving the record of the election dispute, the learned Additional Civil Judge (Jr. Division), Loisinga shall re-register the election case and issue fresh notice to the parties and proceed with the case in accordance with law from the stage, from which the case is transferred to his court. 11. With regard to the second question raised by the writ Petitioner regarding non-joinder of necessary parties, liberty is granted to the Petitioner to raise this question at the time of hearing/argument of this case, since the said question has not been addressed in the impugned order. 12. The writ petition is accordingly disposed of. Urgent certified copy of this order be granted as per rules.