Rajasthan High Court - Jaipur
Ram Singh Son Of Shri Prabhu Singh Kirad vs Kanya Bai Wife Of Shri Phoolchand Mali on 6 May, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9642/2021
Ram Singh Son of Shri Prabhu Singh Kirad, Aged About 60 Years,
Resident of Gehu Khedi, Tehsil Aklera, Police Station Aklera,
District Jhalawar (Raj.).
----Petitioner/Returned candidate
Versus
Kanya Bai Wife of Shri Phoolchand Mali, Resident Of
Madanpuriya, Tehsil Aklera, Police Station Aklera, District
Jhalawar (Raj.).
----Respondent/Election petitioner
For Petitioner(s) : Shri Manoj Kumar Bhardwaj For Respondent(s) : Shri Prakhar Gupta) Shri Amitabh Jatav HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment Judgement reserved on :: 27/04/2022 Judgement pronounced on :: 06/05/2022 This writ petition has been filed by the petitioner, a returned candidate, whose election as Sarpanch, Gram Panchayat Gehu Khedi, Tehsil Aklera has been set aside by the learned Additional District Judge, Aklera, District Jhalawar in the election petition no.25/2020 vide its judgement dated 25.8.2021 and the respondent has been declared as elected Sarpanch.
The facts in brief are that in the election conducted on 22.1.2020, the petitioner was elected as Sarpanch, Gram Panchayat Gehu Khedi which came to be challenged by the respondent-applicant by way of an election petition presented before the learned District Judge, Jhalawar under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for brevity-`the (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (2 of 19) [CW-9642/2021] Rules of 1994') which was transferred for its hearing to the Court of learned Additional District Judge, Aklera, who, vide judgement dated 25.8.2021, set aside the election of the petitioner as Sarpanch and has declared the respondent as elected Sarpanch.
Gravamen of the contention of the learned counsel for the petitioner has been that the judgement dated 25.8.2021 is a nullity inasmuch as the learned Additional District Judge had no authority to hear and decide the election petition. Drawing attention of this Court towards the provisions of Section 117 and 43 of the Rajasthan Panchayati Raj Act, 1994 (for brevity-`the Act of 1994') and Rule 80 of the Rules of 1994, he canvassed that under the scheme of the Act and the Rules, it is either District Judge or a Civil Judge or Additional Civil Judge (Sr. Division) who has been authorised to hear the election petition and no other authority. He therefore prays that the writ petition be allowed and the judgement impugned dated 25.8.2021 be quashed and set aside. He in support of his submissions relies upon following judgements:
1) Keshav Dev vs. Radheyshyam-1964 RLW (Raj) 1;
2) Babulal Jain vs. the District Judge, Bikaner & Ors.-2016 (4) WLN 513 (Raj.);
3) Babita vs. Nihaldei-2017 (2) WLC (Raj.) 275.
Per contra, learned counsel for the respondent submitted that Rule 89 of the Rules of 1994 empowers the District Judge to transfer an election petition to any other Judge within his jurisdiction which also includes an Additional District Judge. Elaborating his submissions, he submitted that since proviso to Section 43 of the Act does not employ the word "only" and hence, (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (3 of 19) [CW-9642/2021] the District Judge can transfer the election petition to the Additional District Judge also. He submitted that in none of the cases relied upon by the petitioner, the provisions of Rule 89 were taken into consideration and hence the judgements are per in- curiam. Learned counsel submitted that in any case, Section 10 of the Rajasthan Civil Courts Ordinance, 1950 provides that an Additional District Judge is authorised to discharge any of the functions of a District Judge which the District Judge may assign to him and it further provides that in discharge of its functions, he shall exercise the same powers as the District Judge and in view thereof, it does not lie in the mouth of the petitioner to say that the judgement dated 25.8.2021 is without jurisdiction. Learned counsel further submitted that even assuming that the learned Additional District Judge did not have jurisdiction to hear and decide the election petition, the judgement passed by him would be saved by the doctrine of de-facto. He, therefore, prays for dismissal of the writ petition. He, in support of his submissions, relied upon following judgements:
1. Lajpat vs. District Judge Ajmer & Ors., S.B. Civil Writ Petition No.18261/2011, dated 23.7.2012.
2. Sheojilal vs. District Judge Bundi & Ors. (2008) 6 WLC
174.
3. Pushpadevi M. Jatia vs. M.L. Wadhawan (1987) 3 SCC
367.
4. Beopar Shayak (P) Ltd. vs. Vishwa Nath, (1987) 3 SCC
693.
5. Gokaraju Rangaraju vs. State of A.P. (1987) 3 SCC 132.
6. Smt. Pushpa Devi vs. Radhey Shyam, AIR 1972 Raj.
260.
7. Sarojini Devi vs. Gulab Chand, 1990 (2) RLR 411.
(D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (4 of 19) [CW-9642/2021]
8. Central Talkies Ltd. Kanpur vs. Dwarka Prasad, AIR 1961 SC 606.
9. Ashok Kumar Jain vs. District Judge, Chittorgarh, S.B. Civil Writ Petition No.12685/2016 dated 15.1.2018.
10. Bahadur Nath vs. State of Rajasthan, S.B. Civil Writ Petition No.4342/2000 dated 22.2.2001.
11. Keshav Dev vs. Radhey Shyam, D.B. Special Appeal No.20/1962 dated 26.8.1963.
12. Babu Lal Jain vs. District Judge, Bikaner, D.B. Special Appeal (Writ) No.710/2016 dated 21.11.2016.
13. Smt. Ladu Kanwar vs. District Judge, Jodhpur, S.B. Civil Writ Petition No.13067/2015 dated 14.12.2015. Heard. Considered.
The question as to whether an Additional District Judge has authority to hear and decide an election petition under the provisions of the Act of 1994 read with Rules of 1994 is no more res integra and stands resolved by a coordinate bench judgement of this Court in the case of Mishri Lal vs. State & Anr.- MANU/RH/2027/2015 wherein, it was held as under:
"26. Though the impugned judgment has been examined on merits and the same is not sustainable but in the considered opinion of this Court, the finding of the learned Election Tribunal on issue No. 5 is also perverse. Admittedly, the respondent - election petitioner at the threshold laid election petition before the District Judge, Bhilwara but then, the same was transferred to the Additional District Judge, Shahpura District Bhilwara and the same has acted as Election Tribunal. On the pleadings of the petitioner, questioning the jurisdiction of the Additional District Judge, Shahpura to act as Election Tribunal, the learned Election Tribunal has not examined the matter in the light of the legal provisions and on the contrary has decided the same in an absolutely casual and (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (5 of 19) [CW-9642/2021] cavalier manner. Section 43 of the Act under the caption "Determination of dispute as to elections" reads as under:--
"43. Determination of dispute as to elections.--(1) An election under this Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction, a petition in this behalf on the prescribed grounds and within the prescribed period:
Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
(2) A petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final."
27. Thus, the power of transfer conferred on the District Judge is not unfettered and it is circumscribed by making it clear that such transfers can be made to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. In this view of the matter, the Legislature has not intended that power of transfer can be exercised by the District Judge to transfer an election petition to any court subordinate to it other than Civil Judge or Additional Civil Judge (Senior Division). The very fact that Legislature has specified the court to which the election petition can be transferred pre-supposes that transfer of election petition to any other court is not intended by the Legislature.
28. My this view is fully fortified by a judgment of co- ordinate Bench in the case of Smt. Indira v. Smt. Prabha, 1998 (1) WLC (Raj.) 81. In this verdict, after discussing the provisions of Section 43 of the Act and Rule 80 of the Rules of 1994 threadbare, the Court held,-
"It is thus evident that District Judge having jurisdiction to hear the election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules 1994 is an (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (6 of 19) [CW-9642/2021] 'authority' according to section 117(b) of the Rajasthan Panchayati Raj Act 1994. The decision of this 'authority' cannot be called in question by way of appeal. Provisions contained in Code of Civil Procedure in respect of civil regular first appeal or misc. appeal, have been excluded and this is nothing in the 'Rules 1994' or 'Act 1994' to indicate that the Judge at the time of hearing the election petition functions as an ordinary court of civil jurisdiction, subordinate to the High Court. The term 'court' used in various headings of the Rules 1994 is meant only to show that while hearing the election petition the Judge functions as a 'judicial tribunal' and that it is only in that sense that the word seems to have been used. The Judge is not made identical with the civil court, otherwise it would have the same powers and privileged as a civil court powers to transfer cases provided to the District Judge under section 24 of the Code of Civil Procedure, has been curtailed and according to proviso appended to sub-section (1) of section 43 of the Act 1994 the District Judge can transfer election petition to only Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. Election petition cannot be transferred to the Additional District Judge, who is subordinate to the District Judge for the purposes of transfer of cases under section 24 CPC. It is therefore apparent that intention of the Legislature in enacting above noted provisions in the Act 1994 and Rules 1994 was to create 'Election Tribunal' and not the 'civil court'. Thus the Judge acting under Rule 80 of the Rajasthan Panchayati Raj Election Rules 1994 is a persona designate and his action in dealing with the election petition cannot be revised by the High Court under Section 115 of the Code of Civil Procedure. Definition of 'Persona designata' as laid down in Central Talkies case (supra) is not applicable to the 'authority' appointed to her the election petition under the Act 1994 and the Rules 1994. In Narain Dutt v. Ibrahim (supra) this court did not properly construe the provisions of the Act 1994 as well as (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (7 of 19) [CW-9642/2021] Rules 1994 and the case of Moti Ram v. Mali Ram (supra) was distinguished overlooking the decision of Division bench of this court in Keshav Dev v. Radhey Shyam (supra). Therefore Bench of this court in Keshav Dev v.
Radhey Shyam (supra). Therefore, I am unable to follow the views expressed in Narain Dutt v. Ibrahim (supra)."
29. The decision in Smt. Indira (supra) is further followed by learned Single Judge of this Court in Smt. Ganga Devi v. District Judge, Bharatpur, 2006 WLC (Raj.) (UC) 287.
30. The legal position is no more res integra that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden. This sound legal proposition is founded on maxim "Expressio unius est exclusion alterius..." based on the assumption of legislative omniscience, because it would make sense only if all omissions in the legislative drafting were deliberate. Therefore, as intended by the Legislature also the power of transferring election petition ought to have been exercised by the District Judge in the manner prescribed by the statute. While deciding issue No. 5, the learned Election Tribunal has completely eschewed the legal provision and the trite law and consequently the finding of learned Election Tribunal on issue No. 5 is per se vulnerable and cannot be sustained. As mandated by law, it ought not to have acted as Election Tribunal in the matter and, therefore, on this count also, the impugned judgment cannot be sustained."
The aforesaid judgement was unsuccessfully challenged by the respondent by way of a D.B. Civil Special Appeal (W) No.33/2016, Laxman vs. State of Raj. & Ors. which came to be dismissed by a Division Bench of this Court vide its judgement dated 17.8.2016.
(D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (8 of 19) [CW-9642/2021] However, to deal with the submissions raised by the learned counsel for the respondent that provisions of Rule 89 of the Rules of 1996, which authorises a District Judge to transfer an election petition before any other Judge within his jurisdiction which includes an Additional District Judge also, were not considered in any of the precedents and hence, the same are per-incuriam, this court examines the procedure laid down under the statutory provisions for challenging an election in a Panchayati Raj Institution and the relevant case law.
The Panchayati Raj Institution in India was conferred a constitutional status by way of 73 rd Amendment in the Constitution of India inserting Part-IX in it. Article 243-O(b) provides as under:
"(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
In consonance with the aforesaid constitutional mandate, the State Legislature enacted the Act of 1994, Section 117(b) of which provides as under:
"(b) no election to any Panchayat Raj Institution shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under this Act."
Rule 80 provides that an election may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within 30 days from the date on which result of such election is declared.
(D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (9 of 19) [CW-9642/2021] It is not disputed by any of the parties that an election petition can only be presented to the District Judge under the scheme of the Act and the Rules who is clothed with a jurisdiction to transfer it. Section 43 of the Act provides that an election petition presented to a District Judge may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Sr. Division) subordinate to him. Rule 89 speaks of a general power of transfer or withdrawal of an election petition. Its sub-rule (1)(ii) provides that the District Judge may transfer the same for trial or disposal to the Court of any other Judge within his jurisdiction. Contention of the learned counsel for the respondent that this clause empowers the District Judge to transfer an election petition to any other Judge of his jurisdiction including an Additional District Judge does not merit acceptance. It is trite law that in case of conflict in between provision of an Act vis-a-vis Rules framed thereunder, it is the provision of the Act which shall prevail. Section 43 qualities power of a District Judge to transfer an election petition for hearing and disposal only to a Civil Judge or Additional Civil Judge (Sr. Division) subordinate to him and taking clue from Section 89(1)(ii), it cannot transfer the election petition to any Judge other than those provided under the proviso to Section 43. A coordinate bench of this Court in Smt. Manju Saini vs. Smt. Parbhati-1997 (1) WLC (Raj.) 466 held as under:
"14. Now we have to examine as to whether the impugned order comes under the purview of proviso appended to section 43 of the Act as well as under
Rule 89 of the Rules of 1994. The District Judge has (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (10 of 19) [CW-9642/2021] transferred the election petition on the ground that many sessions cases and old civil cases are pending in the court therefore the election petition be transferred to the court of Civil Judge (Junior Division) Shahpura. It appears that the District Judge at the time of transfer of election petition did not not read the provisions contained in section 43 of the Act of 1994. The case has been transferred to the Civil Judge (Junior Division) cum Judicial Magistrate Shahpura, whereas according to the proviso appended to section 43 of the Act of 1994, the case can only be transferred to the Civil Judge or Additional Civil Judge (Senior Division). The Civil Judge (Junior Division) has not been given authority to hear the election petition and according to proviso appended to section 43 of the Act of 1994 only the Civil Judge or Additional Civil Judge (Senior Division) has jurisdiction to hear such matters. As such impugned order is against the provisions of section 43 of the Act of 1994."
In case of Sohan Lal vs. Jagdish & Ors.
MANU/RH/1500/2016, a coordinate bench of this Court has held as under:
"3. Learned counsel for the petitioner has placed reliance on the judgment of this Court rendered in (1) Smt. Ladu Kanwar v. District Judge, Jodhpur, Metropolitan & Ors., 1997 (1) WLC (Raj.) UC 391, (2) Smt. Manju Saini v. Smt. Parbhati, 1997 (1) WLC (Raj.) 466, (3) Smt. Ganga Devi v.
District Judge, Bharatpur, 2006 WLC (Raj.) UC 287 & (4) Smt. Indira v. Smt. Prabha, Mukesh v. Dulal Dhali & Ram Kishore vs. Badri Prasad, 1998 (1) WLC (Raj.) 81.
4. Learned counsel for the respondent No. 1 has frankly admitted that as per the proviso to Section 43 of the Act of 1994 and as per the law laid down by this Hon'ble Court in the above referred judgments the action of the District Judge, Churu of transferring the election petition filed (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (11 of 19) [CW-9642/2021] under Section 43 of the Act of 1994 to the Additional District Judge, Sujangarh cannot be sustained.
5. In view of the above, the writ petition filed by the petitioner is allowed.
6. The action of the District Judge, Churu of transferring the election petition to the Additional District Judge, Sujangarh is hereby set aside. The Additional District Judge, Sujangarh is directed to sent the record of the election petition filed by the respondent No. 2 to the District Judge, Churu forthwith. The District Judge, Churu is further directed to try the said election petition by himself or transfer it to any subordinate court as per proviso to Section 43 of the Act of 1994. Stay petition is disposed of."
Another coordinate bench of this Court has, in the case of Smt. Ladu Kanwar (supra), held as under:
"The Legislature in its wisdom has conferred power on the District Judge to transfer an election petition but with certain riders as per proviso to sub-section (1) of Section 43 of the Act of 1994. Therefore, the District Judge while acting as an Election Tribunal is clothed with the jurisdiction to transfer an election petition to Civil Judge or Additional Civil Judge (Senior Division), subordinate to him, after recording reasons in writing. For ready reference complete text of Section 43 of the Act of 1994 reads as under:
"43.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Thus, the power of transfer conferred on the District judge is not unfettered and it is circumscribed by making it clear that such transfer can be made to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. In that background, the legislature has not intended that power of transfer can be exercised by District Judge to (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (12 of 19) [CW-9642/2021] transfer an election petition to any court subordinate to it other than Civil Judge or Additional Civil Judge (Senior Division). The very fact that legislature has specified the Court to which an election petition can be transferred, pre- supposes that transfer of election petition to any other Court is not intended by the legislature.
My this view is fully fortified by a judgment of co- ordinate Bench in case of Smt. Indira (supra) on which learned counsel for the petitioner has placed reliance. In this verdict, after discussing the provisions under Section 43 of the Act of 1994 and under Rule 80 of the Rajasthan Panchayati Raj Rules, 1994 threadbare, the Court held that an election petition cannot be transferred to the Court of an Additional District Judge which is subordinate to the District Judge. The Court held:
"It is thus evident that District Judge having jurisdiction to hear the election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules 1994 is an 'authority' according to section 117(b) of the Rajasthan Panchayati Raj Act 1994. The decision of this 'authority' cannot be called in question by way of appeal. Provisions contained in Code of Civil Procedure in respect of civil regular first appeal or misc. appeal, have been excluded and this is nothing in the 'Rules 1994' or 'Act 1994' to indicate that the Judge at the time of hearing the election petition functions as an ordinary court of civil jurisdiction, subordinate to the High Court. The term 'court' used in various headings of the Rules 1994 is meant only to show that while hearing the election petition the Judge functions as a 'judicial tribunal' and that it is only in that sense that the word seems to have been used. The Judge is not made identical with the civil court, otherwise it would have the same powers and privileged as a civil court powers to transfer cases provided to the District Judge under section 24 of (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (13 of 19) [CW-9642/2021] the Code of Civil Procedure, has been curtailed and according to proviso appended to sub-section (1) of section 43 of the Act 1994 the District Judge can transfer election petition to only Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. Election petition cannot be transferred to the Additional District Judge, who is subordinate to the District Judge for the purposes of transfer of cases under section 24 CPC. It is therefore apparent that intention of the Legislature in enacting above noted provisions in the Act 1994 and Rules 1994 was to create 'Election Tribunal' and not the 'civil court'. Thus the Judge acting under Rule 80 of the Rajasthan Panchayati Raj Election Rules 1994 is a persona designate and his action in dealing with the election petition cannot be revised by the High Court under Section 115 of the Code of Civil Procedure. Definition of 'Persona designata' as laid down in Central Talkies case (supra) is not applicable to the 'authority' appointed to her the election petition under the Act 1994 and the Rules 1994. In Narain Dutt v. Ibrahim (supra) this court did not properly construe the provisions of the Act 1994 as well as Rules 1994 and the case of Moti Ram v. Mali Ram (supra) was distinguished overlooking the decision of Division bench of this court in Keshav Dev v. Radhey Shyam (supra). Therefore Bench of this court in Keshav Dev v. Radhey Shyam (supra). Therefore, I am unable to follow the views expressed in Narain Dutt v. Ibrahim (supra)."
The decision in Smt. Indira's case (supra) is further followed by learned Single Judge of this Court in case of Smt. Ganga Devi v. District Judge, Bharatpur [2006 WLC (Raj.) (UC) 287].
That being the position of law, the order passed by the District Judge whereby election petition of the second (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (14 of 19) [CW-9642/2021] respondent is transferred to Additional District Judge No. 2, Jodhpur Metropolitan cannot be sustained and the said order (Annex.2) is, therefore, set aside. The learned Additional District Judge No. 2, Jodhpur Metropolitan, Jodhpur is directed to send back file to the District Judge, Jodhpur Metropolitan, Jodhpur for doing needful in the matter. Learned Additional District Judge No. 2 must ensure compliance of the directions forthwith." Further, it is also a well established legal position that an authority deciding an election petition under the provisions of the Act of 1994 acts as "persona designata" and not as a Judicial Officer in the official hierarchy. A Division Bench of this Court has, in the case of Keshav Dev (supra), held in para 8 as under:
".........................................In Keshri Prasad Vs. Bodhraj-1951 RLW, 102, the question arose whether a District Judge hearing an election petition u/sec. 22(1) of the U.P. Municipalities Act was a civil court subordinate to the High Court within the meaning of sec. 115 Civil Procedure Code. It was held, relying on Masoon Ali Khan Vs. Ali Ahmad Khan-AIR 1933 All. 764, Keshav Ramchandra Vs. Municipal Borough, Jalgaon and others-AIR 1946 Bom. 64 and Municipality of Sholapur Vs. Tuljaram Krishnasa Chaven-1931 AIR 1931 Bom. 582 that the District Judge hearing an election petition was not a civil court but a persona designata and that he was not amenable to the jurisdiction of the High Court under sec. 115 C.P.C. The same view has been taken by the learned Judges of the Madras High Court in A. Narasimha Ayyangar Vs. K. Ramayya Chettier-AIR 1932 Mad. 560. In Kedar Nath Vs. S.N. Misra-AIR 1957 All. 484, it was held by a full bench that the Sub-Divisional Officer hearing an election petition under the U.P. Panchayat Raj Act was a special Tribunal and was therefore a persona designata. It would be (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (15 of 19) [CW-9642/2021] unnecessary for us to repeat the arguments given in the said cases. It would suffice to say that we respectfully agree and see no reason to depart from the view which this Court has already taken in Keshri Prasad's case (supra). Since we have come to the conclusion that the Munsif or Civil Judge hearing the election petition under rule 78 is a persona designata, it follows as necessary corollary that the District Judge had no jurisdiction to transfer the election petition from one Munsif to another Munsif or from one Munsif to another Civil Judge."
Contention of the learned counsel for the respondent that the aforesaid judgement has no applicability in the present case as the same emanated under the old Panchayati Raj Act having no provision of transfer of an election petition; whereas, in the present case, there is a specific provision for transfer of the election petition, is wholly misconceived. The question is not as to whether there is a power of transfer or not; rather, it is as to whether the authority, who has heard the election petition, was the `competent authority' under the relevant legislation or not.
In case of Babita (supra), a coordinate bench of this Court, after scanning a number of precedents, held as under:
"19. The District Judge can transfer the Election Petition only to a Civil Judge or Additional Civil Judge (Senior Division), subordinate to him and cannot transfer to Additional District Judge. Therefore, the District Judge or Civil Judge or Additional Civil Judge (Senior Division) while hearing an Election Petition presented under the "Act, 1994" and "Rules, 1994" acts as "persona designata" and no appeal or revision lies against the orders/judgments passed by them and therefore, High Court in exercise of Article 227 of the Constitution of India cannot exercise (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (16 of 19) [CW-9642/2021] superintending powers with regard to election disputes under the "Act, 1994" and "Rules, 1994"."
A Division Bench of this Court has, vide its judgement dated 16.5.2019 in Panna Ram vs. Ramu Ram, D.B. Special Appeal (Writ) No.592/2019, upheld the judgement of this Court in Babita (supra).
Contention of the learned counsel for the respondent that jurisdiction of an Additional District Judge to hear and decide an election petition is saved vide Section 10 of the Ordinance, 1950, cannot be countenanced in view of the constitutional mandate and the legislative scheme framed thereunder. A Division Bench of this Court has, in the case of Babu Lal Jain (supra), held as under:
"Undoubtedly Section 10 of the Ordinance provides that the District Judge for purposes of speedy disposal, may transfer a case to an Additional District & Sessions Judge. But, if there is any conflict with the provisions of Part IXA of the Constitution introduced by the 74th Amendment, more particularly Article 243(Z)(A) dealing with election to municipalities empowering the Legislature of a State to make law with regard to all matters in connection with elections to the municipality, the former will have to give way to the latter."
"The order dated 10.09.2015 takes into consideration Section 10 of the Ordinance only without considering the provisions of the Act more particularly Section 31 of the same. Appropriately, the appellant ought to have challenged this order directly rather than to have moved before the Additional District & Sessions Judge contending that he had no jurisdiction in the matter. The same infirmity attaches to the order dated 18.01.2016 of the Additional District Judge which does not reflect any consideration or application of mind to the different (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (17 of 19) [CW-9642/2021] provisions of the Act as discussed hereinabove. The conclusion that there was nothing in the Act to prevent the Additional District & Sessions Judge from hearing the election petition, in our opinion reflects gross inadequate appreciation of the provisions of the Act which have not even been noticed let alone discussed. Both the orders are held to be unsustainable and are set aside. Election Petition No.074/2015, which appears to have been numbered as Election Petition No.99/2015 before the Additional District & Sessions Judge, No.2, Bikaner, has to be tried by the District & Sessions Judge, Bikaner alone. and cannot be transferred to any other Court."
Although, in case of Babu Lal Jain, the Division Bench was dealing with an election under the Rajasthan Municipalities Act, 2009; but, the reasoning assigned therein applies with equal vigour in the present case also inasmuch as Article 243-O (b) dealing with election to a Panchayati Raj Institution, empowers the State legislature to make law in this regard including hearing and disposal of the election petition.
In view of the aforesaid Division Bench judgement of this Court, the judgements of Single Bench of this Court in the cases of Sheojilal (supra), Smt. Pushpa Devi (supra) and Sarojini Devi (supra) passed without taking into consideration the provisions of Article 243D(b) of the Constitution of India, are of no help to the respondent.
Thus, from the conspectus of the statutory provisions in the back drop of the aforesaid judgements, an un-exceptional position which emerges is that an election petition under the Act of 1994 can either be heard by a District Judge or by a Civil Judge or (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (18 of 19) [CW-9642/2021] Additional Civil Judge (Sr. Division) subordinate to him only and by no other Court including an Additional District Judge.
Submission of the learned counsel for the respondent that judgement impugned 25.8.2021 passed by the learned Additional District Judge is saved by the de facto doctrine requires not much deliberation as the same has no applicability in the present case where there was complete lack of lawful authority. This doctrine applies where an unqualified/incompetent person/Judge exercises jurisdiction under lawful authority. Their Lordships have held in the case of Gokaraju Rangaraju vs. State of Andhra Pradesh - (1981) 3 SCC 132 as under:
"A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief."
The upshot of the aforesaid discussion is that the writ petition deserves to be allowed. The writ petition is accordingly allowed. The order dated 25.8.2021 passed by the learned Additional District Judge, Aklera, Jhalawar in election petition no.25/2020 is quashed and set aside. The matter is remanded back to the learned District Judge, Jhalawar for its decision afresh in accordance with law.
(D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) (19 of 19) [CW-9642/2021] This Court has come across other cases also wherein, in recent past, election petitions have been transferred to an authority including an Additional District Judge not authorised to hear the same under the scheme of the Act of 1994 read with Rules of 1994. Hearing of such matters by an unauthorised Judge not only delays disposal of the election petition, which, by their very nature, warrants early disposal; but, also causes colossal loss of precious court time. In view thereof, the Registrar (Judl.) is requested to place the matter before the Hon'ble Chief Justice for issuance of necessary directions/guidelines, if found to be appropriate, to all the Principal District and Sessions Judges in the State to remain careful in future while transferring the election petitions filed under the Act of 1994 and the Rules of 1994.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA /32 (D.B. SAW/911/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 10/05/2022 at 09:31:29 PM) Powered by TCPDF (www.tcpdf.org)