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Narayan SwaIn Vs. Narendra Kumar Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 924 of 1970
Judge
Reported in37(1971)CLT468
ActsOrissa Gram Panchayat Act, 1965 - Sections 31(2); Constitution of India - Article 226
AppellantNarayan Swain
RespondentNarendra Kumar Sahu and ors.
Appellant AdvocateS. Misra-1, Adv.
Respondent AdvocateAdv. General and ;Salil Kumar Dey, Adv.
DispositionApplication allowed
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........as a result of which the ex parte order of injunction subsisted. it is against this order that the writ application has been filed. on 28th of september 1970 a bench of this court granted interim stay of the operation of the orders of the munsif dated 18-7-1970 and 7-9-1970.2. the only question for consideration in the writ application is whether it was within the power of the munsif to grant the injunction. section 31 (2) of the act runs thus:'no candidate who has been elected to be a member. sarpanch or naib sarpanch of a grama panchavat shall be debarred from holding office as such member, sarpanch or naib sarpanch merelv by reason of any election petition having been filed against him unless his election has been declared void by the munsif'.3. admittedly, the case has not been tried.....
Judgment:

G.K. Misra, C.J.

1. The petitioner was declared elected as Sarpanch of Khalarda Grama Panchayat on 15-5-70. Opposite Party No. 1 filed an election petition under Section 31 of the Orissa Grama Panchayat Act. 1964 (Orissa Act 1 of 1965) (hereinafter to be referred to as the Act) challenging the election. He also filed Misc. Case No. 197 of 1970 asking for an interim injunction debarring the petitioner from holding the office of the Sarpanch. The Munsif. 1st Court Cuttack (Opposite Party No. 3) passed an ex parte order of injunction on 18-7-1970. The petitioner subsequently filed an objection for reviewing that order alleging that under Section 31 (2) of the Act such an order was without jurisdiction. The objection was overruled by an order (Annexure 2) dated 7-9-1970 as a result of which the ex parte order of injunction subsisted. It is against this order that the writ application has been filed. On 28th of September 1970 a Bench of this Court granted interim stay of the operation of the orders of the Munsif dated 18-7-1970 and 7-9-1970.

2. The only question for consideration in the writ application is whether it was within the power of the Munsif to grant the injunction. Section 31 (2) of the Act runs thus:

'No candidate who has been elected to be a member. Sarpanch or Naib Sarpanch of a Grama Panchavat shall be debarred from holding office as such member, Sarpanch or Naib Sarpanch merelv by reason of any election petition having been filed against him unless his election has been declared void by the Munsif'.

3. Admittedly, the case has not been tried and the election petition is still pending. The election has not been, decleared void. The language of the sub-section is clear and unambiguous. It does not vest any power in the Munsif to grant an injunction against an elected candidate during the pendency of the election petition. The learned Munsif therefore illegally exercised his jurisdiction in granting an injunction.

4. The writ application is allowed. A writ of certiorari be issued quashing the two impugned orders. The net effect of our judgment is that the injunction order granted by the learned Munsif stands vacated. In the circumstances, there will be no order as to costs.

Ray, J.

5. I agree.


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