DARASINGH KUMBHAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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, Sonepur 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 appellant 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 entertained. The learned counsel for both the parties relied on certain decisions of this Court as well as Apex Court in favour of their respective contentions. The learned counsel for the respondents relied on the decision of the Apex Court in the case of Koopilan Uneen's daughter Pathumma v. Kopilan Uneen's Son Kuntulan Kutty reported in AIR 1981 SC 1683. The Apex Court in the aforesaid case held as follows :-

(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 question raised before this Court and, therefore, the impugned order should be set aside.