Orissa High Court
Sanjeeb Kumar Kar vs Anadi Charan Giri & Another .... ... on 21 July, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C ) No.28275 of 2022
In the matter of an application under Articles 226 and 227 of
the Constitution of India
..................
Sanjeeb Kumar Kar Petitioner
....
-versus-
Anadi Charan Giri & Another .... Opposite Parties
For Appellants : Mr. B. Baug, Sr.Adv.
along with
Mr. M. Baug, Adv.
For Respondents : Mr. C.K. Pradhan, AGA
Mr. D. Samal, Adv.
(for Opp. Party No.1)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:13.05.2025 and Date of Judgment: 21.07.2025
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Biraja Prasanna Satapathy, J.
1. The present Writ Petition has been filed inter alia challenging order dt.29.09.2022 so passed by the learned Civil Judge (Jr. Divn.), Balasore in Election Misc. Case // 2 // No.20 of 2022 under Annexure-8. Vide the said order, learned Court below while condoning the delay in filing the election Petition, held the election petition as maintainable. Learned Sr. Counsel appearing for the Petitioner contended that challenging the election of the Writ Petitioner as Sarpanch of Tentulida Gram Panchayat, Opp. Party No.1 filed Election Misc. Petition in Election Misc. Case No.20 of 2022.
2. It is the contention of the learned Sr. Counsel appearing for the Petitioner that the result of the election though was published on 28.01.2022 and Petitioner was declared as the Sarapanch, but Opp. Party No.1 on the face of the provisions contained under Section 30 & 31 of the Orissa Gram Panchayat Act, 1964 (in short, "the Act"), filed the election petition on 04.05.2022. 2.1. It is contended that as provided under Section 31 of the Act, an election petition is required to be filed within a period of 15 days from the date of publication of the result. However, since the election petition was filed beyond the period of limitation, an application was filed Page 2 of 29 // 3 // along with the election petition by Opp. Party No.1 under Section 5 of the Limitation Act for condonation of delay vide Annexure-2.
2.2. It is contended that though the election petition was filed along with the application under Annexure-2, but in support of the illness of the Petitioner from 22.02.2022, no medical certificate was initially enclosed to the said petition. Only after filing of the election Petition along with Annexure-2, a medical certificate was filed by the election Petitioner/Opp. Party No.1, showing that he was treated as an outdoor patient in Fakir Mohan Medical College & Hospital, Balasore vide O.P.D No.0204791 dated 22.02.2022. It is contended that such a certificate was produced having been issued by Fakir Mohan Medical College & Hospital, Balasore vide OPD No.0204791. But in the R.T.I information so provided under Annexure-7, the authorities of Fakir Mohan Medical College and Hospital, Balasore clearly indicated that Opp. Party No.1 was never treated as an outdoor patient vide OPD No. 0204791 dt.22.02.2022. Page 3 of 29
// 4 // 2.3. It is accordingly contended that since the certificate produced by Opp. Party No.1 showing his illness for the period in question in Fakir Mohan College and Hospital, Balasore was disputed by the self-same Hospital vide Annexure-7 and the same was duly brought to the notice of the learned Court below, but without proper appreciation of the same, learned Court below condoned the delay vide the impugned order dt.29.09.2022 under Annexure-8. It is accordingly contended that since the ground taken by Opp. Party No.1 for condonation of delay was proved wrong with issuance of Annexure-7, the delay in filing the election petition should not have been condoned. Accordingly, it is contended that the impugned order is not sustainable in the eye of law and requires interference of this Court.
3. Mr. D. Samal, learned counsel appearing for Opp. Party No.1 on the other hand raised a preliminary objection with regard to maintainability of the Writ Petition, relying on the provisions contained under Section 38 of the Act. Placing reliance on the provisions contained under Sub-Section 3 & 4 of Section 38 of the Page 4 of 29 // 5 // Act, it is contended that the impugned order being an appealable one, the Petitioner has to approach the District Judge having jurisdiction over the issue. Section 38 of the Act reads as follows:
38. Decision of '[Civil Judge (Junior Division)] (1) If the [Civil Judge (Junior Division)] after making such enquiry, as he deems necessary, finds in respect of any person, whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and may award costs at his discretion.
(2) If the '[Civil Judge (Junior Division)] finds that the election of any person was invalid, he shall either-
(a) declare a casual vacancy to have been created, or
(b) declare another candidate to have been duly elected, whichever course appears, in the circumstances of the case to be more appropriate and in either case, may award costs at his discretion.
(3) All orders of the '[Civil Judge (Junior Division)] shall, subject to the provisions of Sub-section (4), be final and conclusive:
Provided that '[Civil Judge (Junior Division)] may, on application presented within one month from the date of any of the orders made under this section by any person aggrieved, review such order on any ground and may, pending the decision in review direct stay of operation of such order:
provided further that no application for review under the preceding proviso shall lie, if an appeal is preferred in accordance with the provisions of Sub- section (4).
(4) Any person aggrieved by an order of the '[Civil Judge (Junior Division)] may within thirty days from Page 5 of 29 // 6 // the date of the order, prefer an appeal in such manner as may be prescribed before the District Judge having jurisdiction who shall after giving the parties an opportunity of being heard, confirm, reverse, alter or modify the order of the '[Civil Judge (Junior Division)] and pending disposal of such appeal may direct stay of operation of the said order.
3.1. It is contended that in view of the provisions contained under sub-section 3 & 4 of Section 38 of the Act, the Petitioner has got an alternative remedy of appeal before the learned District Judge and the present Writ Petition is not maintainable. In support of his submission, reliance was placed to a decision of this Court rendered in the case of Anirudha Jena Vs. Gopal Panda and Another, 2004 (Suppl) OLR 259. This Court in para 11 to 13 of the said decision held as follows:
11. The Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai and others, AIR 2003 SC 3044, has held:
"Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified. in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the Court is to command the inferior Court or Tribunal to certify its record or proceedings to the High Court to determine whether on the face of the record the inferior Court has committed any of the proceeding errors occasioning failure of justice.Page 6 of 29
// 7 //
12. The provisions of the Orissa Grama Panchayat Act and Rules framed thereunder lead to an irresistible conclusion that a special machinery is constituted under the said Act to adjudicate the inter se disputes cropping up from an election. Law is well-settled that a dispute of such nature has to be efficaciously adjudicated by the Tribunals constituted under the Act. The jurisdiction and modalities of such Tribunals should not be interfered with in a casual manner, that too at interlocutory stages. An election dispute has to be decided as expeditiously as possible. Section 38 (4) of the Orissa Grama Panchayat Act, therefore, mandates that any person aggrieved by an order passed by an Election Tribunal has a right to prefer an Appeal before the District Judge having jurisdiction. who shall, after giving opportunity to the parties, confirm, reverse, alter or modify the order of the Tribunal. The questions raised by Mr. Patnaik, according to us, can be adequately canvassed in an Appeal. Though this Court can exercise its jurisdiction under/Articles 226 and 227 of the Constitution of India, even in relation to a case where there is an equally efficacious alternative remedy, yet this Court must always exercise such discretion sparingly. As we are satisfied that the points raised by Mr. Patnaik can be canvassed adequately in Appeal, we do not propose to exercise our jurisdiction in this case. It is needless to say that if the petitioner is required to file an Appeal, it would be open to him to raise all his points and contend that the order for inspection and re-counting of ballot papers passed by the Civil Judge (Junior Division) was not justified in law. The same view was expressed by this Court in the case of Digambar Pradhan v. Arjun Pradhan, 1972 (1) CWR 74 relying upon the decision of the Supreme Court in the case of Dr. Jagjit Singh v. Giani Kartar Singh and others, AIR 1966 SC 773. Apart from the aforesaid decision, in an unreported decision of this Court in W.P. (C) No. 5937 of 2003 disposed of on 8.8.2003, this Court also turned down a similar prayer observing that if the petitioner in the said case was finally aggrieved by the order that was to be passed by the Additional Civil Judge (Junior Division) in the Election Case, it would be open to Page 7 of 29 // 8 // him to file an Appeal as provided under the Orissa Grama Panchayat Act, and it would be open to him to raise all contentions as are available to him under law in such Appeal.
13. After going through the aforesaid decisions, we are not inclined to take a different view from what has been held by two different Division Benches of this Court in the decisions supra. Therefore, without entering into the controversy with regard to propriety or otherwise of the direction issued by the Civil Judge (Junior Division), Bhadra, we dismiss the Writ Petition holding that we do not consider this to be a fit case in which we should exercise our jurisdiction under Articles 226 and 227 of the Constitution of India despite existence of any equally efficacious alternative remedy. We direct the Election Tribunal to take steps for expeditious disposal of the Election Case.
4. With regard to maintainability of the Writ Petition on the ground of alternative remedy, learned Sr. Counsel appearing for the Petitioner contended that the impugned order being an interlocutory order, no appeal lies in terms of the provisions contained under Section 38 (3) & (4) of the Act. In support of his submission, reliance was placed to a decision of this Court rendered in the case of Niranjan Sahu V. Narasu Satpathy, AIR 1970, Orissa, 46. It is contended that this Court relying on the provisions contained under Section 38 of the Act, clearly observed that an appeal lies only against the final order passed under sub-section 1 & 2 of Section 38 of the Act Page 8 of 29 // 9 // and no appeal lies against an interlocutory order. The view expressed by this Court in para 3 of the judgment reads as follows:
3. On a perusal of the various sub-sections, it is clear that an appeal lies only against final orders passed under sub-sections (1) and (2), and no appeal lies against an interlocutory order. Those very sub-sections make provisions for awarding of costs at the discretion of the Munsif. The first proviso to sub-section (3) makes the position further clear that the appeal is to lie against any order made under section 38. This section makes no provision for passing of interlocutory orders. It merely conceives of final orders either of dismissal or of allowing the election petition. We are therefore satisfied that there is no substance in the preliminary objection. No appeal lies to the District Judge, and the only remedy is by an application under Article 226 of the Constitution.
4.1. It is also contended that relaying on the decision in the case of Niranjan Sahu, this Court in a reported decision rendered in the case of Sasmita Pradhan Vs. The District Collector-cum-District Election Officer, Puri and Others, 2007 (Supp. II) OLR 875 also held that appeal will lie only against a final order made under the sub-section and there is no provision to prefer an appeal against an interlocutory order. View expressed by this Court in para 4 to 7 of the said judgment reads as follows:Page 9 of 29
// 10 //
4. This Court heard learned counsel for the parties patiently, perused the pleadings and the documents annexed thereto meticulously. referred to the legal provisions carefully and considered the matter diligently. A cumulative reading of Section 38 of the Act vis-a-vis its Sub-sections leads to an irresistible conclusion that in consonance with Sub-
section (4) of the Section 38 an appeal lies only against the final orders passed under Sub-sections (1) and (2) of the said Section, and that within the four corners of the said Section there is no provision to prefer an appeal against an interlocutory order. The First Proviso to Sub-section (3) fortifies my aforesaid view and makes it further clear that an appeal will lie only against a final order made under Section 38. In other words, there is no provision in Section 38 for entertaining an appeal against an interlocutory order passed by an Election Tribunal. It only stipulates that an appeal lies before the District Judge having jurisdiction only against a final order either dismissing or allowing an election petition. The same view was also expressed by this Court in the case of Niranjan Sahu (supra).
5. It appears that some conclusion arises with regard to the observation made by a Division Bench of this Court in the case of Anirudha Jena (supra). Facts of the said case reveal that no appeal was preferred before the concerned District Judge against an interlocutory order. On the other hand, the party aggrieved had approached this Court invoking jurisdiction under Articles 226 and 227 of the Constitution of India. In para-12 of the judgment in that case this Court observed as follows:-
"The provisions of the Orissa Grama Panchayat Act and Rules framed thereunder lead to an irresistible conclusion that a special machinery is constituted under the said Act to adjudicate the inter se disputes cropping up from an election. Law is well settled that a dispute of such nature has to be efficaciously adjudicated by the Tribunals constituted under the Act. The jurisdiction and modalities of such Tribunals should not be interfered with in Page 10 of 29 // 11 // a casual manner, that too at interlocutory stages. An election dispute has to be decided as expeditiously as possible. Section 38(4) of the Orissa Grama Panchayat Act therefore mandates that any person aggrieved by an order passed by an Election Tribunal has a right to prefer an appeal before the District Judge having jurisdiction, who shall, after giving opportunity to the parties, confirm, reverse, alter or modify the order of the Tribunal."
6. In the aforesaid case this Court did not express any view mor did make any observation to the effect that an appeal lay to the District Judge against an interlocutory order passed by an Election Tribunal. Thus, in the considered opinion of this Court, there is absolutely no ambiguity and/or controversy with regard to the conclusion arrived at by this Court in Niranjan Sahu and Anirudha Jena cases (supra).
7. It should always be kept in mind that the intention of the Legislature in creating special Tribunal for hearing of election disputes is aimed at speedy and efficacious disposal. Thus the reason for not providing an appeal against an interlocutory order is obvious. If any of the parties is aggrieved by an interlocutory order, it would always be open to that party to challenge the same in the appeal against the final order and the same would be dealt with by the appellate Court. Thus there will be no prejudice.
4.2. Placing reliance on the decision in the case of Niranjan Sahu so followed in the case of Sasmita Pradhan, learned Sr. Counsel appearing for the Petitioner contended that since the impugned order is an interlocutory order, no appeal lies in terms of the provisions contained under Section 38(4) of the Act and Page 11 of 29 // 12 // the appropriate remedy is to file a Writ Petition under Article 226 & 227 of the Constitution of India. It is also contended that the Writ Petition was duly entertained by this Court with passing of an interim order on 01.11.2022. It is accordingly contended that the Writ Petition is very much maintainable and the same be decided on merit instead of relegating the Petitioner to prefer an appeal in terms of the provisions contained under Section 38(4) of the Act.
5. To the submission made by the learned Sr. Counsel appearing for the Petitioner, learned counsel appearing on behalf of Opp. Party No.1 made further submission and contended that Section 38(4) of the Act clearly provides that any person aggrieved by an order of the Civil Judge, may within 30 days from the date of the order prefer an appeal in such matter as may be prescribed before the District Judge having jurisdiction. Placing reliance on the provisions contained under Section 38(4) of the Act that "any person aggrieved by an order", it is contended that the impugned order being the nature of an order passed by the Civil Judge, an appeal Page 12 of 29 // 13 // lies to the learned District Judge and the correct view has been taken by this Court in the reported decision in the case of Anirudha Jena as cited (supra). 5.1. It is also contended that on the face of the clear provisions contained under Section 38(4) of the Act read with Section 38(3) of the Act, the view expressed by this Court in the case of Niranjan Sahu so followed in the case of Sasmita Pradhan are per incuriam and it has got no binding effect. Not only decision in the case of Niranjan Sahu was rendered without following the decision in the case of Digambar Pradhan, 1972(1) CWR 74, where the correct view had been taken. In support of his submission that decision in the case of Niranjan Sahu and Sasmita Pradhan are per incuriam, reliance was placed to a decision of the Hon'ble Apex Court rendered in the case of Fuerst Day Lawson Ltd. V. Jindal Exports Ltd., (2001) 6 SCC
356. Hon'ble Apex Court in para 19 to 23 of the said decision held as follows:
19. In Mamleshwar Prasad v. Kanhaiya Lal [(1975) 2 SCC 232] reflecting on the principle of judgment per Page 13 of 29 // 14 // incuriam, in paras 7 and 8, this Court has stated thus :
(SCC p. 235) "7. Certainty of the law, consistency of rulings and comity of courts -- all flowering from the same principle
-- converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents.
It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.
8. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind."
20. This Court in A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] in para 42 has quoted the observations of Lord Goddard in Moore v. Hewitt [(1947) 2 All ER 270 (KBD)] and Penny v. Nicholas [(1950) 2 All ER 89 (KBD)] to the following effect : (SCC p. 652) "'Per incuriam' are those decisions given in ignorance or forgetful-ness of some inconsistent (sic) statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
21. This Court in State of U.P. v. Synthetics & Chemicals Ltd. [(1991) 4 SCC 139] in para 40 has observed thus :
(SCC p. 162) "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293 : 1944 KB 718] )"
22. The two judgments (1) Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, Chandigarh [(1990) 3 SCC 682 : 1991 SCC (L&S) 71] and (2) State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] were cited in support of the argument. Attention was drawn to paras 40, 41 and 43 in the first judgment and paras 39 and 40 in the second Page 14 of 29 // 15 // judgment. In these two judgments no view contrary to the views expressed in the aforesaid judgments touching the principle of judgment per incuriam is taken.
23. A prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment "per incuriam". It is also not shown that some part of the decision was based on a reasoning which was demonstrably wrong, hence the principle of per incuriam cannot be applied. It cannot also be said that while deciding Thyssen [(1999) 9 SCC 334] the promulgation of the first Ordinance, which was effective from 25-1-1996, or subsequent Ordinances were not kept in mind more so when the judgment of the Gujarat High Court in Western Shipbreaking Corpn. [(1988) 1 Raj 367, 404] did clearly state in para 8 of the said judgment thus:
"8. We now come to the Arbitration and Conciliation Ordinance, 1996 which was promulgated on 16-1-1996 and brought into force with effect from 25-1-1996. The second Ordinance, 1996 was also promulgated on 26-3-1991 as a supplement to the main Ordinance giving retrospective effect from 25- 1-1996. The Ordinance received assent of the President on 16-8-1996 giving the retrospective effect from 25-1-1996. Thus the Ordinance has now become an Act. All the provisions of the Ordinance as well as the Act are same. Therefore, the use of the words 'the Ordinance' shall also mean the Act and vice versa."
It appears in the portion extracted above that there is a mistake as to the date of promulgation of the second Ordinance as 26-3-1991. But the correct date is 26-3- 1996.
5.2. Reliance was also placed to a decision of the Hon'ble Apex Court rendered in the case of Hyder Consulting (UK) Ltd., Vs. State of Orissa, (2015) 2 SCC Page 15 of 29 // 16 //
189. Apex Court in para 46 & 47 of the said decision held as follows.
46. Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of "per incuriam". The Latin expression "per incuriam" literally means "through inadvertence". A decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. As regards the judgments of this Court rendered per incuriam, it cannot be said that this Court has "declared the law" on a given subject-matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] , wherein R.M. Sahai, J. in his concurring opinion stated as follows : (SCC p. 162, para
40) "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'."
47. Therefore, I am of the considered view that a prior decision of this Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional circumstances, where owing to obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. The said principle was also noticed in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. [(2001) 6 SCC 356 : AIR 2001 SC 2293] 5.3. A further reliance was also made to a decision of the Apex Court rendered in the case of Shah Faesal V. Union of India, (2020) 4 SCC 1. Hon'ble Apex Court in para 27 to 32 of the said decision held as follows:. Page 16 of 29
// 17 //
27. Having discussed the aspect of the doctrine of precedent, we need to consider another ground on which the reference is sought i.e. the relevance of non- consideration of the earlier decision of a coordinate Bench. In the case at hand, one of the main submissions adopted by those who are seeking reference is that, the case of Sampat Prakash [Sampat Prakash v. State of J&K, AIR 1970 SC 1118] did not consider the earlier ruling in Prem Nath Kaul [Prem Nath Kaul v. State of J&K, AIR 1959 SC 749] .
28. The rule of per incuriam has been developed as an exception to the doctrine of judicial precedent. Literally, it means a judgment passed in ignorance of a relevant statute or any other binding authority [see Young v. Bristol Aeroplane Co. Ltd. [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)] ]. The aforesaid rule is well elucidated in Halsbury's Laws of England in the following manner [ 3rd Edn., Vol. 22, Para 1687, pp. 799-
800.] :
"1687. ... the court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords."
(emphasis supplied)
29. In this context of the precedential value of a judgment rendered per incuriam, the opinion of Venkatachaliah, J., in the seven-Judge Bench decision of A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] assumes great relevance : (SCC p. 716, para 183) "183. But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A coordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such decision. When a previous decision is so overruled it does not happen -- nor has the overruling Bench any jurisdiction so to do -- that the finality of the operative order, inter partes, in the previous decision is overturned. In this context the word "decision" means only the reason for the previous order and not the operative order in the previous decision, binding inter partes. ... Can such a Page 17 of 29 // 18 // decision be characterised as one reached per incuriam? Indeed, Ranganath Misra, J. says this on the point :
(para 105) 'Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench.'"
(emphasis supplied)
30. The counsel arguing against the reference have asserted that the rule of per incuriam is limited in its application and is contextual in nature. They further contend that there needs to be specific contrary observations which were laid down without considering the relevant decisions on the point, in which case alone the principle of per incuriam applies.
31. Therefore, the pertinent question before us is regarding the application of the rule of per incuriam. This Court while deciding Pranay Sethi case [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , referred to an earlier decision rendered by a two-Judge Bench in Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , wherein this Court emphasised upon the relevance and the applicability of the aforesaid rule : (Sundeep Kumar Bafna case [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , SCC p. 642, para
19) "19. It cannot be over emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta."
(emphasis supplied) Page 18 of 29 // 19 //
32. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the pertinent judgments was also taken by a five-Judge Bench decision of this Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court [Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682 : 1991 SCC (L&S) 71] : (SCC pp. 706-07, para 43) "43. As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind. But in this case Sections 25-G and 25-H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context. The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together."
5.4. Relying on the decisions in the case of Fuerst Day Lawson Ltd., Hyder Consulting (UK) Ltd. & Shah Faesal as cited (supra), it is contended that on the face of the clear provisions contained under Section 38(3) r/w 38(4)of the Act, the decision in the case of Niranjan Sahu so followed in the case of Sasmita Pradhan being per incurium, it has got no binding effect and the correct view has been taken by this Court in the case of Aniruddha Jena as cited supra. It is accordingly contended that the impugned order is an appealable one and the Writ Petition is not maintainable. Page 19 of 29
// 20 // 5.5. It is further contended that the word "All Order"
reflected in sub-section 3 of Section 38 of the Act has to be interpreted in the manner it has been so incorporated in the Statute. It is contended that the word "All Order"
so incorporated under sub-section 3 of the Act has to be interpreted in the way the legislature has so intended. 5.6. With regard to interpretation of the aforesaid provision in the manner it has been so incorporated, reliance was placed to a decision of the Hon'ble Apex Court in the case of Allahabad University Etc. Vs. Gitanjali Tiwari(Pandey) & Others Etc. Etc., Civil Appeal Nos.12411-12414 of 2024 with Civil Appeal No.12415 of 2025. Hon'ble Apex Court in para-13 of the said judgment held as follows:
13. Another crisp and enlightening passage is found in Reserve Bank of India (supra), where His Lordship observed as follows:
"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-Page 20 of 29
// 21 // maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. ... "
5.7. It is also contended that it is trite law that the words of a statute have to be construed in a manner which would give them a sensible meaning which accords the overall scheme of the statute, the context in which the words are used and the purpose of the underlying provision.
5.8. In support of the same, reliance was placed to a decision of the Hon'ble Apex Court rendered in the case of Gujarat Urja Vikash Nigam Limited Vs. Amit Gupta (2021) 7 SCC 209. Hon'ble Apex Court in para 55 of the said decision held as follows:
55. For, it is trite law that the words of a statute have to be construed in a manner which would give them a sensible meaning which accords with the overall scheme of the statute, the context in which the words are used and the purpose of the underlying provision.Page 21 of 29
// 22 // 5.9. It is also contended that the word "All" reflected in sub-section 3 of Section 38 has not been interpreted, but Hon'ble Apex Court in various decisions while interpretating the word "any", has come to a conclusion that the word "any" dictionarily means "one or some or all". In support of the same, reliance was placed to the following decisions:
1. K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 : 2005 SCC (Cri) 451
2. Om Prakash Bhatia v. Commr. of Customs, (2003) 6 SCC 161
3. Vivek Narayan Sharma Vs. Union of India, 2023 LIVELAW (SC) 1 5.10. Hon'ble Apex Court in the case of K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 in para 50 of the said decision held as follows:
50. In Black's Law Dictionary (6th Edn.) the word "any" is defined (at p. 94) as under:
"Any.--Some; one out of many; an indefinite number. One indiscriminately of whatever kind or quantity.
One or some (indefinitely).
'Any' does not necessarily mean only one person, but may have reference to more than one or to many.
Word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute Page 22 of 29 // 23 // depends upon the context and the subject-matter of the statute.
It is often synonymous with 'either', 'every', or 'all'. Its generality may be restricted by the context; thus, the giving of a right to do some act 'at any time' is commonly construed as meaning within a reasonable time; and the words 'any other' following the enumeration of particular classes are to be read as 'other such like', and include only others of like kind or character."
51. The word "any" may have one of the several meanings, according to the context and the circumstances. It may mean "all"; "each"; "every";
"some"; or "one or many out of several". The word "any" may be used to indicate the quantity such as "some", "out of many", "an infinite number". It may also be used to indicate quality or nature of the noun which it qualifies as an adjective such as "all" or "every". (See The Law Lexicon, P. Ramanatha Aiyar, 2nd Edn. at p. 116.) Principles of Statutory Interpretation by Justice G.P. Singh (9th Edn., 2004) states (at p. 302)--
"When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that 'the meanings of words and expressions used in an Act must take their colour from the context in which they appear'. Therefore, 'when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers'."
5.11. Hon'ble Apex Court in the case of Om Prakash Bhatia v. Commissioner of Customs, (2003) 6 SCC 161, in para 10 held as follows:
10. "What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to 'any prohibition imposed by Page 23 of 29 // 24 // any law for the time being in force in this country' is liable to be confiscated. 'Any prohibition' referred to in that section applies to every type of 'prohibition'. That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression 'any prohibition' in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions 'prohibiting', 'restricting' or 'otherwise controlling', we cannot cut down the amplitude of the word 'any prohibition' in Section 111(d) of the Act. 'Any prohibition' means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition.
From Item (I) of Schedule I Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues."
5.12. Hon'ble Apex Court in the case of Vivek Narayan Sharma Vs. Union of India, 2023 LIVELAW (SC) 1 in para 158 has held as follows:
158. We find that the word "any" would mean "all"
under sub-section (2) of Section 26 of the RBI Act.
6. Having heard learned counsel appearing for the parties and considering the submission made, this Court taking into account the preliminary objection raised by the learned counsel appearing for Opp. Party No.1 took up the issue with regard to the maintainability of the Writ Petition as a preliminary issue.
Page 24 of 29
// 25 // 6.1. It is not disputed that an election petition challenging the election of a Sarapanch or a member of a Grama Panchayat can be filed in terms of the provisions contained under Section 30 of the Act. As provided under Section 31 of the Act, an election Petition has to be filed within a period of 15 days from the date of publication of the result.
6.2. In the instant case, since the election petition has been filed beyond the period of limitation. Opp. Party No.1/election petitioner along with an election Petition in Election Misc. Case No.20 of 2022 filed an application for condonation of delay under Section 5 of the Limitation Act vide Annexure-2. Learned trial Court vide the impugned order dt. 29.09.2022 allowed the said application by condoning the delay.
6.3. In view of such order passed by the trial Court on 29.09.2022 under Annexure-8, it is to be seen as to whether an appeal lies against the said order before the learned District Judge in terms of the provisions Page 25 of 29 // 26 // contained under sub-section 4 r/w sub-section 3 of Section 38 of the Act.
6.4. This Court after going through the aforesaid provisions finds that an appeal lies against an order of the Civil Judge (Jr. Divn). Even though Section 38 of the Act deals with the power of the Civil Judge to take a final decision in an election petition, but as provided under sub-section 3 r/w sub-section 4 of the Act, all orders of the Civil Judge shall be subject to the provisions of sub- section 4 be final and conclusive. Sub-section 4 of the Section provide that any person aggrieved by an order of the Civil Judge, may prefer an appeal. Taking into account the provisions contained under sub-section-3 r/w sub-section 4 of Section 38 of the Act and the decisions in the case of K. Prabhakaran, Om Prakash Bhatia and Vivek Narayan, it is the view of this Court that the word "all orders" does not mean that the final order passed in an election petition. The word "all" in order to give a sensible meaning has to be construed as "any".
Page 26 of 29
// 27 // 6.5. Therefore, in view of the provision contained under sub-section 3 read with sub-section 4 of Section 38 of the Act, it is the view of this Court that an appeal lies against the impugned order and the correct view has been taken by this Court in the case of Anirudha Jena so cited (supra).
6.6. In view of the clear provisions contained under sub-section 3 & 4 of Section 38 of the Act and the decisions in the case of Jindal Export Ltd., Hyder Consultancy (UK) Ltd. and Shah Faesel as cited (supra), the view expressed by this Court in the case of Niranjan Sahu, so followed in the case of Sasmita Pradhan as per the considered view of this Court are per in curium and has got no binding effect. Not only that decision in the case of Niranjan Sahu was also rendered, without following the earlier decision of this Court rendered in the case of Digambar Pradhan Vs. Arjun Pradhan, 1972(1) CWR 74. This Court in para 4 of the said decision held as follows:
4. Under Section 38(4) of the Act any person aggrieved by an order of the Munsif may within Page 27 of 29 // 28 // thirty days from the date of the order prefer an appeal before the District Judge having jurisdiction who shall, after giving the parties an opportunity of being heard, confirm, reverse, alter or modify the order of the Munsif. The point urged by Mr. Patnaik can be fully canvassed in appeal. Law is now well settled that this Court can exercise jurisdiction under Articles 226 and 227 of the Constitution even in relation to a case where there is an equally efficacious alternative remedy. But the Court must always exercise discretion whether the jurisdiction should be exercised or not. When we are satisfied that the aforesaid point can be canvassed adequately to appeal we do not propose to exercise;
our jurisdiction in this case. In other words, in appeal it is open to Mr. Patnaik to contend that the inspection and recounting that has been permitted by the Munsif is not justified by law.
The decision in the case of Aniruddha Jena as per the considered view of this Court has laid down the correct position of law.
6.7. In view of the aforesaid analysis, this Court is of the view that the impugned order is an appelable one and it is open for the Petitioner to move the appellate Court. However, since the Writ Petition is pending before this Court with passing of an interim order on 01.11.2022, it is observed that if any such appeal will be filed within a period of two (2) weeks from the date of receipt of this order, the appellate Court shall entertain the appeal and decide the issue on merit by condoning the delay. Page 28 of 29
// 29 // 6.8. It is however observed that this Court has not gone into the merits and contentions raised by either of the parties. It is open for the appellate Court to decide the issue on merit. Certified copy of the impugned order be returned back to the learned Sr. Counsel appearing for the Petitioner by taking photo copy of the same. 6.9. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 21st July, 2025/Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaiton of order Location: high court of orissa, cuttack Date: 21-Jul-2025 13:29:29 Page 29 of 29