DEBARAJ BEHERA Vs. RAMA CHANDRA SAHU AND ORS.

JUDGEMENT

(1.) THE short question that has been raised in this petition is whether the District Judge was justified in setting aside the order of the Additional Munsif. Baramba, in Election Misc. Case No. 5 of 1984 not on merits of the case but on the ground that the Additional Munsif had no jurisdiction to entertain an election dispute under the Orissa Grama Panchayat Act.

(2.) THE short facts necessary for adjudication of the present dispute are that the Petitioner objected to the nomination of opposite party No. 1 on the ground that he is disqualified for being a member of Grama Panchayat as he is interested in a subsisting contract which is a disqualification contemplated under Section 25(1)(n) of the Orissa Grama Panchayat Act (hereinafter referred to as the "Act") The Election Officer overruled the objection of the Petitioner by his order dated 23 -12 -1983 whereupon opposite party No. 1 was elected as the Sarpanch of Gopinathpur Grama Panchayat. The Petitioner then filed an election petition under Section 30 of the Act before the Additional Munsif, Baramba. Opposite party No. 1 entered appearance and filed objection on several grounds but did not challenge the jurisdiction of the Additional Munsif to entertain the election petition. Against some interlocutory order passed by the Additional Munsif. Opposite party No. 1 came up to this Court in O.J.C. No. 148 of 1985 and even there also did not challenge the jurisdiction of the Additional Munsif to entertain the election petition. That writ petition was, however, disposed of by this Court on 8 -2 -1985 with certain directions. Thereafter, the learned Additional Munsif disposed of the election petition by his order dated 18 -3 -1985 and allowed the said petition. Being aggrieved by the said order of the learned Additional Munsif, opposite party No. 1 filed a miscellaneous appeal, but even in the memorandum of appeal filed before the District Judge, objection as to the jurisdiction of the Additional Munsif to entertain an election petition was not raised. After hearing the arguments of both parties, the learned District Judge, however, by his order dated 26th August, 1985, came to hold that the Additional Munsif, Baramba, had no jurisdiction to entertain an election petition since under Section 31 of the Act, an election petition can be presented before the Munsif having jurisdiction over the place at which the office of Gram Sasan is situated. According to the learned District Judge, the words "the Munsif" used in Section 31 of the Act mean that the Munsif has been appointed as a persona designata and, therefore, the Additional Munsif of Baramba cannot have power to entertain the application.

(3.) IN our opinion, it would not be appropriate in the facts and circumstances of the present case to debate on the question as to whether the Additional Munsif who exercises the full powers of the Munsif throughout the territorial jurisdiction of Baramba is included within the ambit of the phrase "the Munsif having jurisdiction over the place" used in Section 31 of the Act, since according to us the writ petition can be disposed of on other grounds. It is an admitted fact that the opposite party never challenged the jurisdiction of the Additional Munsif to entertain the election petition either in his objection filed before the Additional Munsif or in the earlier writ petition filed in this Court against an interlocutory order passed by the Additional Munsif or in the memorandum of appeal that was presented before the District Judge or even in the arguments advanced before the District Judge. In that view of the matter, the learned District Judge should not have raised that issue suo motu. In a similar matter in the case of Sohan Singh and Ors. v. The General Manager, Ordinance Factory, Khamaria, Jabalpur and Ors. : A.I.R. 1981 S.C. 1862 the Supreme Court had observed: