Rajasthan High Court - Jodhpur
Gopi Chand vs Dist.Judge,Bikaner Cum Election ... on 9 April, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2248 / 2018
Gopi Chand S/o SH. Phusa Ram, Aged About 56 Years, R/o Jajju,
Tehsil Kolayat, District Bikaner
----Petitioner
Versus
1. District Judge, Bikaner Cum Election Tribunal, Bikaner
2. Addl. Chief Judicial Magistrate NO, 3, Bikaner.
3. Bhanwar Lal S/o Sh. Sugna Ram, R/o Jajju, Tehsil Kolayat,
District Bikaner
4. Barkat Ali S/o Sh. Azimudeen, R/o Jajju, Tehsil Kolayat, District
Bikaner
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. S.D. Vyas.
For Respondent(s) : Mr. Hemant Dutt.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order 09/04/2018 By way of this writ petition, the petitioner (respondent before the Election Tribunal) has approached this Court for challenging the order dated 12.10.2017 allegedly passed by the learned Additional Sessions Judge NO.3, Bikaner in Election Petition preferred by the private respondents.
At the outset, this Court is constrained to note that despite the requirement of law that an election petition should be decided expeditiously so as not to frustrate the challenge given to the election of a candidate for a fixed term and despite the unambiguous position of law regarding the scope to entertain (2 of 7) [CW-2248/2018] challenge to such election petitions, the present matter is being lingered on at the initial stage with almost 8 rounds of litigation having been entertained in this Court previous to the present writ petition. The following matters have filed in this Court in relation to the present dispute:
Sr. No. Particulars Date of
Decision
(i) S.B. Civil Writ Petition No.8977/2015 Dismissed on
(Gopi Chand Vs. Bhanwar Lal & Anr.) 27.08.2015
(ii) S.B. Civil Review Petition No.157/2016 Dismissed on
05.12.2016
(Gopi Chand Vs. Bhanwar Lal & Anr.)
(iii) S.B. Civil Writ Petition No.14531/2016 Allowed on
12.07.2017
(Gopi Chand Vs. District Judge & Ors.)
(iv) S.B. Civil Writ Petition No.2811/2016 Dismissed on
14.03.2016
(Gopi Chand Vs. Bhanwar Lal & Anr.)
(v) S.B. Civil Writ Petition No.16574/2017 Dismissed on
22.02.2018
(Gopi Chand Vs. Bhanwar Lal & Anr.)
(v) D.B. SAW No.726/2017 Dismissed on
15.01.2018
(Gopi Chand Vs. District Judge & Ors.)
(vi) D.B. Civil Review Petition No.23/2018) Pending
(Gopi Chand Vs. District Judge & Ors.)
(vii) S.B. Civil Writ Petition No.2248/2018 Pending
(Gopi Chand Vs. District Judge & Ors.)
Section 43 of the Rajasthan Panchayati Raj Act, 1994 clearly mandates that the election petition shall be presented before the District and Sessions Judge who may, for reasons to be recorded, transfer the same for trial to a Civil Judge. In the case at hand, indisputably, the election petition was presented before the District Judge, Bikaner and inspite of the unambiguous legal (3 of 7) [CW-2248/2018] position, the election petition was wrongly transferred to the Court of ACJM No.3, Bikaner which is manifestly a Criminal Court and has no jurisdiction to try the election petition. Be that as it may. The said order of transfer was challenged before this Court and the controversy appears to have been put to a rest with the order dated 12.07.2017 passed in S.B. Civil Writ Petition No.14351/2016 whereby, the District Judge, Bikaner was directed to transfer the election petition to the appropriate court in conformity with the provisions of Section 43 of the Panchayati Raj Act. Pursuant to such order being passed, the impugned order was passed on 12.10.2017 by the learned District Judge whereby, the election petition was transferred to the Court of the Additional Civil Judge (Sr. Division) No.3, Bikaner for trial. The petitioner has challenged the said order on the pretext that the officer, who passed the order was in the rank of Additional District Judge and was simply holding temporary charge of the court of District Judge and thus, he is not a persona designata in consonance with Section 43 of the Panchayati Raj Act and hence, the order under challenge is bad in eye of law.
Referring to Articles 243(O) and 243(Z)(a) of the Constitution of India as well as Division Bench Judgment of this Court in the case of Babulal Jain vs. The District Judge & Ors. (D.B. Special Appeal (Writ) No.710/2016) decided on 21.11.2016, Shri S.D. Vyas vehemently urged that as the Additional District Judge and not the District Judge passed the order under challenge, it has to be presumed that the order is illegal and also without jurisdiction and hence, the same should be (4 of 7) [CW-2248/2018] quashed/ set aside.
Shri Hemant Dutt, learned counsel representing the respondent has filed a reply to the writ petition setting out therein, details of the various cases filed in this Court till date in relation to the present election petition. He has raised a preliminary objection regarding maintainability of the writ petition on the ground of concealment of material facts i.e. of the previous cases filed before this Court in this very matter. He has also placed on record, copy of the order dated 27.08.2015 passed by Coordinate Bench of this Court in S.B. Civil Writ Petition No.8977/2015 (Gopi Chand vs. Bhanwar Lal & Anr.) whereby, the challenge laid by the petitioner to the orders of transfer (dated 12.05.2015 and 30.07.2015) was repelled and the writ petition of the petitioner was rejected. He further points out that the order dated 12.07.2017 passed by the learned Single Bench in writ petition No.14531/2016 preferred by the petitioner was challenged by filing firstly a review petition and then, a Special Appeal (Writ) No.726/2017 which was rejected vide judgment dated 15.01.2018. He contends that the factum of rejection of the review petition as well as Special Appeal has been concealed by the petitioner while filing the present writ petition. He further points out that after rejection of the Special Appeal, yet another writ petition No.16574/2017 preferred by the petitioner with an endeavour to delay the trial of the election petition has also been rejected vide order dated 22.02.2018. He further points out that the petitioner filed an application in the Court of the Additional Civil Judge under Section 43 of the Panchayati Raj Act questioning (5 of 7) [CW-2248/2018] the transfer of the election petition and such application stands rejected by order dated 22.11.2017 which has not been challenged in this writ petition. He further contends that the plea putforth by the petitioner in this writ petition that the order under challenge was passed by the Additional District Judge NO.3, Bikaner is totally false. As per Shri Dutt, intentionally a faint certified copy of the order sheet dated 12.10.2017 in which the court's seal is not visible was presented alongwith the writ petition so as to mislead this Court. He thus implores the Court to reject the instant writ petition with heavy cost and direct the Election Tribunal to decide the election petition at the earliest.
I have given my thoughtful consideration to the arguments advanced at bar and have gone through the material available on record.
The first and foremost contention advanced by Shri Vyas, learned counsel for the petitioner, was that the order under challenge was passed by the Additional District Judge No.3, Bikaner. Per se, the said contention is fallacious and incorrect. Shri Hemant Dutt, during the course of arguments, has placed on record, a clear certified copy of the impugned order a perusal whereof, clearly indicates that the order bears the seal of the District Judge, Bikaner. This contention of Shri Dutt is also fortified from the order/notification dated 03.10.2017 (placed on record with the writ petition as Annexure-2) issued by the Rajasthan High Court in exercise of its administrative powers whereunder, the officer holding the charge of the Additional District Court, No.3, Bikaner has been appointed as the District and Sessions Judge, (6 of 7) [CW-2248/2018] Bikaner in addition to his own duties. Thus manifestly, the officer who passed the order under challenge was posted as the District Judge, Bikaner under a valid order passed by the Rajasthan High Court which is empowered to order such posting. The contention advanced by Shri Vyas that the Additional District Judge No.3 was not the persona designated in reference to Articles 243(O) and 243(Z)(a) of the Constitution of India is per se far fetched and untenable.
Ex-facie, in view of the facts noticed herein above, this Court is of the firm opinion that the officer who passed the impugned order was unquestionably posted as the District and Sessions Judge, Bikaner and the seal which is appended on the clear certified copy of the impugned order placed on record by Shri Hemant Dutt is fortifies this fact. It may be emphasised that the certified copy of the impugned order presented by the petitioner alongwith the writ petition is very faint and the seal of the court is not visible therein.
From the details of the cases filed thus far in this Court in relation to the election petition in question, it is manifest that the petitioner has, somehow or the other, tried to subterfuge/ delay the proceedings of the election petition in a manifest endeavour to ensure that he completes the tenure of five years without the election petition being decided.
In view of the discussion made herein above, I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India so as to interfere in the impugned order dated 12.10.2017 which ex-facie does not (7 of 7) [CW-2248/2018] suffer from any illegality or perversity and cannot be terms as being without jurisdiction.
Hence, the instant writ petition as well as stay application are dismissed with a cost of Rs.5,000/-. The Election Tribunal is directed to proceed with the election petition expeditiously and shall preferably decide the same within a period of three months from the date of receipt of copy of this order. The cost upon being deposited shall be appropriated in the funds of the District Legal Services Authority.
(SANDEEP MEHTA), J.
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