SARAT CHANDRA MUKHI Vs. MOHAN NAIK

JUDGEMENT

(1.) In this writ application, the petitioner challenges the legality and propriety of the order dated 7-1-2009 passed by the learned District Judge-cum-Election Tribunal, Dhenkanal and Angul in Election Misc. Case No. 193 of 2008 rejecting his petition tiled under Section 24 of the CPC read with Section 5(2) of Orissa Civil Courts Act, 1994 to transfer the said election case to the Court of Addl. District Judge, Angul.

(2.) The fact of the case in brief is that the petitioner was duly elected as Councilor of Ward No. 6 under the Angul Municipality in the year 2008. Opposite party No. 1 challenged the said election of the petitioner by filing a petition under Section 19 of the Orissa Municipal Act, 1950 registered as Election Petition No. 193 of 2008. The petitioner entered appearance and filed a petition under Section 24 of the CPC for transfer of the said election case to the Court of Addl. District Judge, Angul on the grounds stated therein. The learned District Judge after hearing the parties by the impugned order rejected the said petition with the observation that there is no specific notification empowering the Addl. District Judge to deal with the application filed under Section 1.9 of the Orissa Municipal Act.

(3.) Mr. Mishra, learned counsel for the petitioner submits that as per the provisions of the Orissa Municipal Act, every election petition has to be presented before the Distric Judge having jurisdiction-over the area and since Angul Municipality comes under the jurisdiction of the Court of Addl. District Judge, Angul, the present election petition can effectively be tried by the said Court of the Addl. District Judge, Angul. Furthermore, as both the petitioner and opposite parties are residing/holding their office within the jurisdiction of the Addl. District Judge, Angul, interest of justice would be best served if the election case is transferred to the said Court for disposal. He further submits that though no detailed procedure has been envisaged under the Orissa Municipal Act for transfer of the election case, the learned District Judge has power under Section 24 of the CPC read with Section 5(2) of the Orissa Civil Courts Act to transfer the case to the Addl. District Judge, Angul. The legislative intention behind the establishment of the Courts of Addi District Judge is to accelerate the disposal of cases pending before the District Judge. This fact is clear from the language of Section 5(1) of the Civil Courts Act. He further submits that Section 21 of the Orissa Municipal Act is clear that not only the election petition is to be filed before the District Judge but it is also necessary that the concerned Municipal area in respect of which the election dispute is raised must be situated within the territorial jurisdiction of the said District Judge. Since the District Judge, Dhenkanal has no territorial jurisdiction over the concerned Municipal area, the Addl. District Judge, Angul under whose territorial jurisdiction the concerned Municipality is situated can only have jurisdiction to entertain and try the election dispute. He further submits that Section 19 of the Orissa Municipal Act confers power upon the District Judge to adjudicate the election disputes and Orissa Civil Courts Act, 1984 deals with the establishment and power of different civil Courts including the Court of the District Judge within Orissa. As such, Section 19 of the Orissa Municipal Act, 1950 can be said to be in pari materia with Orissa Civil Courts Act, 1984. According to the learned counsel, the expression "District Judge" in Orissa Municipal Act, 1950 must be understood by taking into account the provisions of the Orissa Civil Courts Act, 1984 under which the expression District Judge is deemed to include "Addl. District Judge". He further submits that the expression "persona designata" connotes a person pointed out by name or other personal description in contradiction to one whose identity is to be ascertained by the office which he holds. The Civil Courts Act came into force in the year 1984. But the Orissa Municipal Act was enacted in 1950, when the Orissa Civil Courts Act was not in existence in the year 1950. Therefore, the latter Act, i.e. the Orissa Civil Courts Act, shall override the former Act. After bifurcation of the districts, Angul Municipality is coming under the district of Angul, not within the district of Dhenkanal. Therefore, District Judge, Dhenkanal has no jurisdiction to decide the election dispute. In support of his submission Mr. Mishra relies upon the decisions in S. Srinivas Rao v. High Court of A. P., AIR 1989 AP 258, AIR 1962 AP 59 and Ashok Kumar Sahu v. Raghab Chandra Bhoi, 2009 (1) CLR 550: AIR 2009 (NOC) 1252 (Ori).