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1982 DIGILAW 199 (GUJ)

VASANTBHAI VARDHABHAI PATEL v. STATE

1982-11-24

S.L.TALATI

body1982
S. L. TALATI, J. ( 1 ) THE petitioner has approached this Court with a prayer that the order passed by the Civil Judge (S. D.) Bharuch on 29-3-1982 in Election petition No. 2 of 1980 produced at annexure A may be quashed. The further prayer is that the order passed by the Collector Bharuch on 14-4-82 and produced at annexure C also may be quashed and the ultimate prayer is that either Civil Judge (S. D.) Bharuch or respondent No. 2 the Collector may be directed to decide the petition of the petitioner. It is therefore clear that even at this stage the peti- tioner is not clear as to whether civil Judge (S. D) has got jurisdiction to to decide his matter or the Collector Bharuch respondent No. 2 has jurisdiction to decide his matter. From the factual aspect it appears that the petitioner desires to challenge the election of respondent No. 3 who is elected as Sarpanch of the gram panchayat Vilayat situated in Bharuch District. Now it appears that the petitioner first filed Election petition in the Court of Civil Judge (S. D.) Bharuch challenging the election of respondent No. 3 as Sarpanch of Vilayat Gram Panchayat. That Election petition was numbered as Election petition No. 2 of 1980. The learned Civil Judge Senior Division framed an issue and that issue was numbered as issue No. 1a and that issue was as under :- 1 Whether this Court has jurisdiction to hear and decide this petition? The learned Civil Judge Senior Division came to the conclusion that the Court had no jurisdiction to hear and decide the petition. He also came to the conclusion that respondent No. 2 the Collector had power to decide the election petition under. sec. 44 (6) of the Gujarat Panchayat Act 1961 and therefore be passed an order to return the election petition for presentation before the competent Authority. It appears that the petitioner approached respondent No. 2 the Collector of Bharuch who came to the conclusion that he had no jurisdiction to decide the matter and therefore he rejected the petition by his order dated 14-4-1982 which is produced at annexure C thereafter the petitioner approached this Court under Article 227 of the Constitution of India. It appears that the petitioner approached respondent No. 2 the Collector of Bharuch who came to the conclusion that he had no jurisdiction to decide the matter and therefore he rejected the petition by his order dated 14-4-1982 which is produced at annexure C thereafter the petitioner approached this Court under Article 227 of the Constitution of India. ( 2 ) THE learned Civil Judge (S. D.) came to the conclusion that he had no jurisdiction to decide the matter because of the case of TAKHATSING GULABSING V. CHANDULAL SHIVLAL AND ORS. REPORTED IN 9 G. L. R. AT PAGE 987. The learned Civil Judge completely overlooked the fact that thereafter the Act was amended by Gujarat Act No. 9 of 1973 and by that Act sec. 12 was substituted and according to the substituted sec. 12 (3) stood as under :-" 12 (3) :- Sarpanch shall be elected by ballot by qualified voters of the gram panchayat from amongst themselves. "sec. 44 was also amended and it provided for the election of Upsarpanch only. Section 44 did not provide for the election of Sarpanch. Now therefore respondent No. 2 the Collector would have no power under sec. 44 (6) of the Act and therefore the decision rendered by respondent No. 2 the Collector was absolutely right when he came to the conclusion that he had no jurisdiction to decide the matter. The learned Civil Judge. Senior Division when he came to the conclusion that the Collector had jurisdiction under sec. 44 (6) of the Act that decision was not correct because after the decision of 9 G. L. R. (Supra) at page 987 both secs. 12 and 44 came to be amended by Act No. 9 of 1973 Now therefore under sec. 24 of the Act the election petition is required to be heard by the civil Judge Junior Division and if there is no Civil Judge Junior Division then by Civil Judge Senior Division and the Collector respondent No. 2 will have no jurisdiction to hear the matter This question is now settled by the Division Bench of this Court while deciding L. P. A. Nos. 121 of 1974 and L. P. A. No. 128 of 1974 on 28. 4 19z5 and it is clearly held that under sec. 121 of 1974 and L. P. A. No. 128 of 1974 on 28. 4 19z5 and it is clearly held that under sec. 24 (1) of the Gujarat Panchayats Act 1961 Civil Judge (J. D.) will have power to decide the election petition where the election of Sarpanch is challenged. It was clearly held while deciding L. P. A. that if there was a dispute relating to an election of Sarpanch of a gram panchayat that dispute would fall within the ambit of sec. 24 and the learned Civil Judge Borsad had jurisdiction to entertain election petition regarding the validity of election of the Sarpanch. Under these circumstances the prayer for quashing the order of respondent No. 2 the Collector cannot be granted. However it is clear that the order of Civil Judge deciding that the Collector had power to decide the election petition under sec. 44 (6) of the Act is required to be set aside. However when the Collector decided that he had no jurisdiction he should not have ordered to file the petition but he should have returned the petition for presentation to the proper court. Under these circumstances respondent No. 2 is directed to return the election petition to the petitioner for presentation to the proper court and the proper court would be the Court of the Civil Judge (J. D.) Bharuch. Rule is made absolute to the above extent with no order as to costs. .