Sabita Mohanty Laxmipriya Jena and another … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 747 of 2023 Sabita Mohanty Laxmipriya Jena and another ….. Vs. ….. Appellant Mr. S.S. Bhuyan, Advocate Respondents Ms. D. Mohapatra, Advocate (respondent no.1) CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN
Decision
ORDER 02.11.2023 Order No. 07. This matter is taken up through hybrid mode. 2. Heard Mr. S.S. Bhuyan, learned counsel appearing for the appellant and Ms. D. Mohapatra, learned counsel appearing for respondent no.1. 3. The appellant has filed this writ appeal challenging the order dated 14.03.2023 passed in W.P.(C) No. 770 of 2023 by which the learned Single Judge observed that keeping in view the reason assigned in delay condonation application, such order has been passed in exercise of power under Section 31 of the O.G.P. Act, in that circumstances, there is no defect in the impugned order requiring to be interfered with in exercise of power under Article 227 of the Constitution of India. 4. At the outset, this Court made a query that whether the order passed by the learned Single Judge dated 14.03.2023 in W.P.(C) No. 770 of 2023 in exercise of power conferred under Article 227 of the Constitution of India is amenable to writ appeal or not. 5. Mr. S.S. Bhuyan, learned counsel appearing for the appellant Page 1 of 6 vehemently contended that the writ appeal against the order passed by the learned Single Judge is maintainable. He contended that the learned single Judge has exercised the power under Article 226 of the Constitution of India, though it has been indicated as Article 227. According to him, learned Single Judge has exercised the jurisdiction under Article 226 of the Constitution of India being the superior Court to see the correctness of the order passed by the Election Tribunal under Section 31 of the Odisha Gram Panchayat Act. Therefore, according to him, writ appeal is maintainable. To substantiate his contention, reliance has been placed to the decision of the apex Court in the case of Jogendrasinhji Vijayasinghji v State of Gujarat and others, (2015) 9 SCC 1. 6. Per contra, Ms. Deepali Mohapatra, learned counsel appearing for the respondent no.1 disputed such argument advanced by learned counsel for the appellant and contended that the order passed by the Election Tribunal under Section 31 of the O.G.P. Act so far as condonation of delay is concerned is final order and the learned Single Judge has exercised the power under Article 227 of the Constitution of India, therefore, against such order, the writ appeal is not maintainable. To substantiate such contention, reliance has been placed to the decision of this Court in the case of Jyotshna Mohapatra v. State of Odisha, 2018 (I) ILR-CUT-869, by which reliance has been placed to the judgment made in the case of Saswati Patras v Saraswati Biswal, 2016 (II) OLR 3, Rabindranath @ Rabindranath Jena v. Bijaya Kumar Bhuyan & ors. 2016 (II) ILR –CUT-28, Jogendrasinhji Vijaysinghji v. State of Gujrat, (2015) 9 SCC 1, Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 and Smt. Swarnaprava Pattnaik @ Das v. Dibakara Satpathy (Dead) through L.Rs. Lilly Satpathy @ Page 2 of 6 Panda and others (Writ Appeal No.346 of 2012) dismissed on 08.12.2016. 7. Having heard learned counsel for the parties and after going through the record, it appears that the application was filed by the appellant under Section 31 of the O.G.P. Act. Section 31 of the O.G.P. Act reads as follows:- “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 under Section 15 : Provided that if the Office of the Civil Judge (Junior Division) is closed on the last day of the period of limitation as aforesaid the Petition may be presented on the next day on which such Office is open : Provided further that if the Petitioner satisfies the Civil Judge (Junior Division) that sufficient cause existed for the failure to present the Petition within the period aforesaid Civil Judge (Junior Division) may in his discretion condone such failure.” 8. On perusal of the aforesaid provision, it is made clear that the Civil Judge (Junior Division) though was holding the post of Civil Judge, but he has exercised the power of Election Tribunal under the provisions of the O.G.P. Act. Therefore, he has not discharged the duties and responsibilities of Civil Judge while deciding the application filed under O.G.P. Act. Rather he has discharged the duties and responsibilities of Election Tribunal under O.G.P. Act, which is the authorized court to decide the case in a manner provided under CPC. He having dealt with the limitation matter as provided under Section 31 of the O.G.P Act, the order passed by him was under scrutiny by the learned single Judge under Article 227 of the Constitution of India, the present writ appeal is not maintainable. Page 3 of 6 9. This Court had got an occasion to deal with the similar question in Saswati Patras v. Saraswati Biswal, 2016 (II) OLR 3, in which the election to a Member of Zilla Parishad, Puri was under challenge. The question was as to whether under Section 32 of the Zilla Parishad Act, the District Judge has got jurisdiction to try the election petition. While considering the same, this Court held that in an intra-Court appeal, order passed by the Civil Judge is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India. Once it is exclusively assailable under Article 227 of the constitution of India, no intra-Court appeal is maintainable. As such, jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. A letters patent appeal or an intra-Court appeal in respect of an order passed by the learned Single Judge dealing with the order arising out of proceeding from the civil court would not lie before the Division Bench. No writ can be issued against the order passed by the civil court, and therefore, no letters patent appeal will be maintainable. 10. In Rabindranath @ Rabindranath Jena v. Bijaya Kumar Bhuyan & ors. 2016 (II) ILR –CUT-28, this Court has already taken into consideration the maintainability of the writ appeal, while considering the provisions contained under Section 31 of the Odisha Grama Panchayat Act, 1964, and this Court has taken similar view as has been held by the apex Court in Jogendrasinhji Vijaysinghji (supra) which has also taken note of judgment of the apex Court in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423. This Court has also taken similar view in Smt. Swarnaprava Pattnaik @ Das v. Dibakara Satpathy (Dead) through L.Rs. Lilly Satpathy @ Panda and others Page 4 of 6 (Writ Appeal No.346 of 2012) dismissed on 08.12.2016 and Ananda Mohapatra v. Bijay Mohapatra, 2017 (I) ILR CUT 24, holding that since the order was passed by the learned Single Judge in exercise of power under Article 227 of Constitution of India, the writ appeal is not maintainable. 11. In the instant case since the order was passed by the learned Single Judge by exercising the jurisdiction under Article 227 of the Constitution of India while dealing with the order passed by the election tribunal under Section 31 of the O.G.P. Act, in that case the intra court appeal does not lie. 12. While parting with the case itself, it is apt to indicate the direction issued by the learned Single Judge in the order dated 14.03.2023 passed in W.P.(C) No. 770 of 2023 at paragraph-6 of the order, which reads as follows “For the second proviso to Section 31(1) of the O.G.P. Act, there is power vested with the civil Judge (Jr.Divn.) being the election tribunal to condone delay provided it finds sufficient cause existed there for failure to present the petition in time. There has been assessment by the Civil Judge (Jr.Divn.) through Annexure-3 finding sufficient cause existed in bringing the Application subsequent to time stipulation. It is immaterial whether there is delay of 51 days or 48 days ? Keeping in view the reason assigned in delay condonation Application, such order has been passed in exercise of power under Section 31 of the O.G.P. Act. In the circumstance, this Court finds, there is no defect in the impugned order requiring to be interfered with in exercise of power under Article 227 of the Constitution of India.” 13. Considering the law laid down by the apex Court as well as this Court, as discussed above, this Court is of the considered view that as the learned Single Judge, while deciding W.P.(C) No. 770 of 2023, has exercised the jurisdiction under Article 227 of the Constitution of India, Page 5 of 6 the present writ appeal is not maintainable. The preliminary objection raised on behalf of respondent no.1 is thus answered in her favour. Since we have held that the writ appeal is not maintainable, we are not inclined to enter into the merits of the case. 14. Accordingly, the writ appeal merits no consideration and the same stands dismissed. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE Arun (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 07-Nov-2023 11:13:12 Page 6 of 6