Orissa High Court
Debaki Jani vs The Collector & Another .... Opp. ... on 11 April, 2014
Equivalent citations: AIR 2014 ORISSA 138, (2014) 1 CLR 922 (ORI), (2014) 139 ALLINDCAS 539 (ORI), 2014 (3) KER LT 46.2 SN, (2014) 1 ORISSA LR 867, (2014) 118 CUT LT 451
Author: A.K.Rath
Bench: A.K.Goel, A.K.Rath
ORISSA HIGH COURT : CUTTACK
FULL BENCH
WP(C) No.24123 of 2013
Debaki Jani .... Petitioner
-Versus-
The Collector & another .... Opp. Parties
For the petitioner : Mr.Manoj Ku. Mohanty, Adv.
For the State : Mr.R.K.Mohapatra, Govt. Advocate
For Opp. Party No.2 : Mr.A.K.Mohapatra, Adv.
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. A.K.GOEL
AND
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing : 04.04.2014 : Date of judgment : 11.04.2014
Dr.A.K.Rath, J.Cleavage of decisions on the interpretation of Section 26 of the Orissa Grama Panchayats Act, 1964, in the cases of Chandrakanti Bhoi v. The Collector, Balangir and another, 2007 (Supp.-I) OLR 400 and Smt. Mithila Seth v. The Collector, Bolangir, 2011 (Supp.-II) OLR 594, necessitated the learned Single Judge to refer the matter to the Full Bench.
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2. The following question of law has been referred for our decision.
"Whether a proceeding under Section 26 of the Orissa Grama Panchayats Act is maintainable on the basis of application filed by any person, who is not a Sarpanch, Naib Sarpanch or a member of the Grama Panchayat?"
3. Section 26 of the Orissa Grama Panchayats Act, 1964 (hereinafter referred to as "the Act") is quoted hereunder:
"26. Procedure of giving effect to disqualifications:-
(1) Whenever it is alleged that any Sarpanch or Naib-
Sarpanch or any other member is or has become disqualified or whenever any such person is himself in doubt whether or not he is or has become so disqualified such person or any other member may, and the Sarpanch at the request of the Grama Panchayat shall, apply to the Collector for a decision on the allegation of doubt.
(2) The Collector may suo motu or on receipt of an application under Sub-section (1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive.
(3) Where the Collector decides that the Sarpanch, Naib- Sarpanch or any other member is or has become disqualified such decision shall be forthwith published by him on his notice-board and with effect from the date of such publication the Sarpanch, Naib-Sarpanch or such other member, as the case may be, shall be deemed to have vacated office, and till the date of such publication he shall be entitled to act, as if he was not disqualified."
4. In Chandrakanti Bhoi v. The Collector, Balangir and another, 2007 (Supp.-I) OLR 400, a Division Bench of this Court had the occasion to consider the relative scope of Sections 30 to 32 on the one hand and Section 26 of the Act on the other. It was held that an election petition can be presented by a person who filed his nomination on the ground mentioned in Section 25, whereas any member of the Grama -3- Panchayat or Naib-Sarpanch or Sarpanch at the request of the Grama Panchayat can apply to the Collector for taking a decision as to the disqualification of the elected candidate. It was further held that a person who contested the election cannot file application under Section 26 of the Act and he is only to file an election petition. Similarly, a member of the Grama Panchayat concerned cannot move an election petition and the course open to him is to file a petition under Section 26 before the Collector.
5. In the case of Smt. Mithila Seth v. The Collector, Bolangir, 2011 (Supp.-II) OLR 594, another Division Bench of this Court, on an interpretation of Section 26 of the Act, in paragraph-9 of the report, came to hold that the application filed by the husbands of the defeated candidates before the Collector challenging the election of the elected Sarpanch is maintainable. In paragraph-15 of the report, it is further held that the Collector can suo motu make an enquiry under Section 26(2) of the Act. If power under Section 26 of the Act is to be invoked on receipt of an application; that must be under sub-section (1). Persons, who filed the complaint, have no locus standi to file such application.
6. The Reference Bench came to hold that in Smt. Mithila Seth, earlier Division Bench judgment in the case of Chandrakanti Bhoi has not been taken note of. Further, there are inconsistent observations in Paragraphs-9 and 15 of the judgment in Smt. Mithila Seth, which runs contrary to the earlier decision in the case of Chandrakanti Bhoi.
7. Section 26 of the Act is not concerned with either declaring the election void or granting any consequential declaration as to who has -4- been duly elected. It merely enables the person specified in sub-section (1) of Section 26 of the Act to invite a decision on the question of disqualification of a Member. The Division Benches, in Chandrakanti Bhoi and Smt. Mithila Seth, proceeded to dispose of the writ applications on the basis of interpretation of sub-section (1) of Section 26 of the Act. But then, the crux of the issue hinges on interpretation of sub-section (2) of Section 26 of the Act. Under sub-section (2) of Section 26 of the Act, the Collector may suo motu or on receipt of an application under sub-section (1), make such enquiry as he considers necessary and after giving the person whose disqualification is in question an opportunity of being heard, determine whether or not such person is or has become disqualified and make an order in that behalf which shall be final and conclusive.
8. Many legal systems throughout the world retain the use of Latin words or phrases that originated centuries ago in the legal system of ancient Rome. The term "suo motu" is one of those terms. In Collins English Dictionary, the term "suo motu" is defined as "on its own motion," and the term generally refers to a situation wherein a judge acts without request by either party to the action before the court.
9. While under sub-section (1) of Section 26 of the Act, the categories of persons enumerated therein apply to the Collector for a decision on the allegation or doubt whether or not he is or has become so disqualified; under sub-section (2) the Collector may suo motu or on receipt of an application under sub-section (1), make an enquiry as he considers necessary. The power of the Collector to enquire into the -5- matter suo motu cannot be cabined, cribbed or confined. The power is wide enough. But then the same cannot be exercised in a routine manner. The power has to be exercised with great care and circumspection. In the elegant words of Benjamin N. Cardozo in the legal classic "The Nature of the Judicial Process":
"The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight- errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains".
The Collector has to prima facie satisfy himself and apply his mind before issuing any notice to the person whose disqualification is in question. The only rider is to observe principles of natural justice. The legislature in its wisdom thought it proper to grant ample power to the Collector to see that purity and sanctity in the election process is maintained and no unqualified person holds the post. The same also does not exclude any other person to bring the notice of the Collector about the disqualification incurred by any Sarpanch or Naib-Sarpanch or any other member of the Grama Panchayat. The Collector exercising the suo motu power is not debarred from obtaining information and materials from various sources.
10. In view of the analysis made in the preceding paragraphs, we hold that the ratio laid down in Chandrakanti Bhoi and Smt. Mithila -6- Seth, which run contrary to the observations made supra, is not correct enunciation of law.
The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench.
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Dr. A.K.Rath, J.
Chief Justice: I agree.
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Chief Justice
Mr. Justice B.K.Nayak: I agree.
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Mr. B.K.Nayak, J
Orissa High Court, Cuttack .
The 11th April, 2014/pks