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
---------------------------------------------------------------------------------
Date of Hearing:13.05.2025 and Date of Judgment: 21.07.2025
--------------------------------------------------------------------------------
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 fromPage 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 toPage 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 perPage 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) 15.10. 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 statutePage 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 byPage 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 withinPage 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
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