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2018 DIGILAW 171 (RAJ)

Ashok Kumar Jain v. District Judge, Chittorgarh

2018-01-15

VIJAY BISHNOI

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JUDGMENT : VIJAY BISHNOI, J. This writ petition has been filed on behalf of the petitioner being aggrieved with the order passed by the District Judge, Chittorgarh whereby, it has transferred the election petition filed under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for short ‘the Act of 1994’) read with Section 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short ‘the Rules of 1994’) to the Additional District Judge, No. 2, Chittorgarh. 2. It is claimed in the writ petition that as per the law laid down by this Court in Smt. Ganga Devi v. District Judge, Bharatpur, reported in 2006 WLC (Raj.) UC 287, an election petition filed under Section 43 of the Act of 1994 can be transferred by the District Judge concerned to the Senior Civil Judge or Additional Senior Civil Judge only and not to any other court. 3. During the pendency of this writ petition, the District Judge, Chittorgarh has transferred the said election petition to the Senior Civil Judge vide order dated 19.1.2017, however, the petitioner is claiming that the Senior Civil Judge cannot proceed with the election petition from the stage, it has reached before the Additional District Judge, No. 2, Chittorgarh and the court is required to proceed with the election petition afresh. 4. The above argument of learned counsel for the petitioner is not liable to be accepted as the issue raised is no more res integra, as a Co-ordinate Bench of this Court at Jaipur in the case of Sheojilal v. District Judge, Bundi, reported in 2008 (1) DNJ (Raj.) 318 has held as under :- “12. If eventually, this Court were to uphold the aforementioned argument of the petitioner, proceeding thus for held by the Court of Additional District Judge would in any case be liable to be saved by recourse to de facto doctrine. But, in my considered view, de facto doctrine would not be required to be invoked in the instant case because on appreciation of the rival submissions, I propose to decide this matter on consideration of the other legal arguments. 13. But, in my considered view, de facto doctrine would not be required to be invoked in the instant case because on appreciation of the rival submissions, I propose to decide this matter on consideration of the other legal arguments. 13. Distinction that I have noticed between Section 43 of the Rajasthan Panchayati Raj Act and Section 40 of the Rajasthan Municipalities Act apart, it is evident from a dispassionate reading of section 43 of the Act that sub-section (1) thereof lays down that an election under this Act or the rules made there under 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. Proviso to sub-section (1) of Section 43 of the Act of 1994 however empowers the District Judge that he may, for the reasons to be recorded in writing, transfer such election petition for hearing and disposal to a Civil Judge or Additional Civil Judge (SD) subordinate to him. The Rajasthan Civil Courts Ordinance was promulgated by the Rajpramukh of the State on 24.1.1950 in exercise of powers conferred on him by clause (3) of Article X of the Covenant of 1949. Ordinance promulgated by the Rajpramukh as aforesaid would by virtue of Article 372 of the Constitution have the same force of law as enacted by the State Legislature till replaced by another legislation on the subject. Provisions contained in Chapter II of the Ordinance would be relevant for deciding the controversy involved in the present case. Section 6 thereof, provides for classes of courts namely, (1) the court of District Judge, (2) the special civil court (3) the court of Civil Judge and (4) the Court of the Munsiff. Section 7 confers power upon the State Government to fix and alter the local limits of jurisdiction of any Civil Court by notification in the official gazette. Section 8 confers power upon the State Government to fix number of District Judges and from time to time, alter number of District Judge to be appointed for the whole of the State of Rajasthan. Section 9(1) provides that appointments of persons to be, and the posting and promotion, of District Judges, shall be made by the Governor in consultation with the High Court. Section 9(1) provides that appointments of persons to be, and the posting and promotion, of District Judges, shall be made by the Governor in consultation with the High Court. Section 10 which is relevant for deciding the controversy involved in the present case, runs as under : “10. Additional Judges.-(1) When the business pending before any District Judge or District Judges so requires for its speedy disposal, the State Government may, upon the recommendation of the High Court sanction the appointment of such number of Additional Judges for the Court or Courts of such District Judge or District Judges, as may be necessary. (2) The provisions of section 9 shall apply also to the appointment, posting and promotion of, and filling up of vacancies among Additional Judges. (3) Any Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those functions, he shall exercise the same powers as the District Judge.” The aforesaid provision came up for consideration of this Court in Smt. Pushpa Devi v. Radhey Shyam: AIR 1972 Raj. 260 , wherein somewhat similar objection was raised in respect of a petition for divorce filed at the instance of husband under Section 13(1) of the Hindu Marriage Act presented before the District Judge. In that case too, the argument was founded on the premise that since Section 19 of the Act provides that every petition under this Act shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together, divorce petition could not be transferred to Additional District Judge for trial and disposal. This court held that once the petition was presented to the District Judge who transferred the same to Additional District Judge, the letter is competent to exercise all the functions which are exercisable by the District Judge. This judgment was later followed and reiterated in Smt. Veema Lodha (supra). 14. This court held that once the petition was presented to the District Judge who transferred the same to Additional District Judge, the letter is competent to exercise all the functions which are exercisable by the District Judge. This judgment was later followed and reiterated in Smt. Veema Lodha (supra). 14. In Sarojani Devi v. Gulab Chand, RLR 1990 (2) 411, it was held by this Court that Section 10 of the Ordinance empowers the Additional District Judge to exercise same powers as District Judge and the High Court directed that entire suit property shall vest in the trustee to be appointed by the District Judge and the defendants were directed to deliver the property to the trustee so appointed. Though the plaintiffs filed an application for execution before the District Judge, Bharatpur accompanied by an application for appointment of trustees as directed by the Court, the District Judge Bharatpur transferred the execution application to the court of Additional District Judge, Gangapur City. In Central Talkies Ltd., Kanpur v. Dwarka Prasad, their Lordships of the Supreme Court held that persona designata is a person who is pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character; persona designata are persons selected to act in their private capacity as Judges. 15. I have respectfully studied the judgment of the Co-ordinate Bench in Narayan Dutt (supra) and I find myself unable to apply the ratio of that judgment on given facts in the present case not only because of the distinction between Section 40 of the Municipality Act and Section 43 of the Panchayati Raj Act but also for the reason that Section 10 of the Civil Courts Ordinance and its effect was not at all considered in that judgment. 16. In view of the above discussion, I do not find any merit in the writ petition. The writ petition is dismissed though with no order as to costs. 5. In view of the above proposition of law, I do not find any merit in this writ petition and the same is hereby dismissed. Stay petition is also dismissed. 6. The Senior Civil Judge, Chittorgarh is directed to proceed with the election petition transferred to him, from the stage, it has reached in the court of the Additional District Judge, No. 2, Chittorgarh.