JUDGMENT :

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, Bolangir 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.

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, Bolangir 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 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 paragraph-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 conc