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2018 DIGILAW 169 (RAJ)

GOPI CHAND v. DISTRICT JUDGE, BIKANER

2018-01-15

GOPAL KRISHAN VYAS, VINIT KUMAR MATHUR

body2018
JUDGMENT : 1. The instant special appeal has been filed by the appellant/writ-petitioner under Rule 134 of the Rajasthan High Court Rules, 1952 against the judgment dated 12th of July 2017 passed in SBCWP No. 14531/2016, to the extent of directions to continue the trial of election petition from the stage which has reached in the Court of Additional Chief Judicial Magistrate No. 3, Bikaner. 2. Learned counsel for the appellant stated the facts that earlier SBCWP No. 8977/2015 was filed by the appellant-Gopichand challenging the validity of orders dated 12.05.2015 (Annex.2) and 30.07.2015 (Annex.4) whereby the election petition was transferred to the Court of Additional Civil Judge (Sr. Division)-cum-Addl. Chief Judicial Magistrate, Bikaner for its disposal, the said writ petition was dismissed vide judgment dated 27.08.2015 and after dismissal of the writ petition, the trial of the election petition filed by the respondent was commenced in the Court of Addl. Chief Judicial Magistrate No. 3, Bikaner. 3. The appellant/writ-petitioner again preferred writ petition before this Court on the ground of jurisdiction under the provisions of Rajasthan Panchayati Raj Act, 1994. The said writ petition was registered as SBCWP No. 14531/2016 and the learned Single Judge relied upon the judgment rendered by the Division Bench of this Court in the case of Babulal Jain v. District Judge & Ors. (DBSAW No. 710/2016, decided on 21.11.2016). It is argued that as per Section 43 of the Act of 1994, the District Judge can transfer the election petition only to the Civil Judge or Additional Civil Judge (Jr. Division) and not to a criminal Court. 4. The writ petition filed by the appellant/writ-petitioner was allowed while relying upon the judgment in the case of Babulal Jain (supra) and in the case of Yashoda v. Ashok Kumar & Ors. 2016 (1) CDR 369 (Raj.) and order dated 12.05.2015 was quashed and direction was given to the District Judge Bikaner to transfer the Election Petition No. 69/2015 immediately to the appropriate Court in conformity with provisions of Section 43 of the Act of 1994 and further directed that the trial of the aforesaid election petition to continue from the stage, which has reached in the Court of Addl. Chief Judicial Magistrate No. 3, Bikaner. 5. Chief Judicial Magistrate No. 3, Bikaner. 5. Learned counsel for the appellant vehemently argued that although the writ petition was allowed by the learned Single Judge while following the judgment in the case of Babulal Jain (supra) and quashed the order to transfer the election petition, however, the further directions were given to proceed with the trial from the stage which has reached in the Court of Additional Chief Judicial Magistrate No. 3, Bikner is erroneous because no such directions can be issued because the election petition can be tried by the civil Court only. 6. During the course of arguments, learned counsel for the appellant invited our attention towards the order dated 12.10.2017 which is said to be passed in compliance of order dated 12.07.2017 passed in CW No.14531/2016, whereby election petition was transferred to Senior Civil Judge No.3, Bikaner for trial. The contention of the learned counsel for the appellant is that the Senior Civil Judge No.3, Bikaner is also having jurisdiction to decide criminal cases, therefore, after transfer, he is required to proceed in election petition afresh; and all other proceedings undertaken by the Senior Civil Judge-cum-Additional Chief Judicial Magistrate No.3, Bikaner cannot be taken into consideration, therefore, the order of learned Single Judge to the extent of directing to continue the trial from the stage which has reached in the Court of Addl. Chief Judicial Magistrate No.3, Bikaner, may kindly be quashed. 7. On the other hand, learned counsel for the respondent, Mr. Hemant Dutt submitted that the appellant/writ-petitioner relied upon the judgment of Division Bench of this Court in the case of Babulal Jain (supra) before the learned Single Judge, therefore, while deciding the writ petition of the appellant, the learned Single Judge relied upon the judgment in the case of Babulal Jain (supra), in which specific directions were issued to proceed from the stage before the Court of District & Sessions Judge, Bikaner in accordance with law. Although in the case of Babulal Jain (supra), the election of member of Municipal Board was in question and in the case of appellant the election of the member of Panchayat is in question, but the appellant himself relied upon the said judgment, therefore, no such prayer can be accepted, therefore, the instant appeal may kindly be dismissed. 8. Although in the case of Babulal Jain (supra), the election of member of Municipal Board was in question and in the case of appellant the election of the member of Panchayat is in question, but the appellant himself relied upon the said judgment, therefore, no such prayer can be accepted, therefore, the instant appeal may kindly be dismissed. 8. After hearing the learned counsel for the parties, we have perused the order impugned, so also, the judgment passed in the case of Babulal Jain (supra), in which following adjudication is made : "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 reflect any consideration or application of mind to the different provisions of the Act as discussed herein above. 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 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. We are informed that the election petition is still at a nascent stage of exchange of pleadings. The matter shall proceed from that stage before the Court of District & Sessions Judge, Bikaner in accordance with law." 9. Admittedly, the learned Single Judge accepted the prayer of the appellant that his case is squarely covered with the case of Babulal Jain (supra) and passed the impugned order, in which the earlier proceedings were saved. 10. In our opinion, no different view can be taken then the view taken by the Division Bench of this Court in the case of Babulal Jain (supra), therefore, no interference is called for in this special appeal. 11. 10. In our opinion, no different view can be taken then the view taken by the Division Bench of this Court in the case of Babulal Jain (supra), therefore, no interference is called for in this special appeal. 11. Resultantly, the instant special appeal is hereby dismissed.