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2018 DIGILAW 1935 (RAJ)

Kanhaiya Lal Meghwal v. District Judge, Balotra

2018-09-18

SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. Through this writ petition under Article 227 of the Constitution of India, the petitioner Kanhaiya Lal being the returned Sarpanch of Gram Panchayat Chhacharlayit Kalan, Panchayat Samiti Kalyanpur, Tehsil Pachpadra, District Barmer, has approached this Court for assailing the order dated 24.4.2015 passed by the learned District Judge, Balotra in Election Petition No. 63/2015 whereby, the matter was transferred to the court of ACJM, Balotra for trial. 2. Shri. Dhera learned counsel representing the petitioner vehemently urged that the ACJM has no jurisdiction to try the case and only a Civil Judge or Additional Civil Judge can try the election petition as per Section 43 of the Rajasthan Panchayati Raj Act, 1994 and Rule 89 of the Rajasthan Panchayati Raj Election Rules, 1994. He urged that an ACJM being a criminal court has no jurisdiction to act as an Election Tribunal. He further urged that the proceedings conducted thus far by the ACJM cannot be saved for the simple reason that as the same were conducted by a court without jurisdiction and thus, all proceedings are null and void. On these grounds, he implored the Court to exercise its supervisory writ jurisdiction and quash the proceedings as being grossly illegal and without jurisdiction. 3. Per contra, Shri Manoj Bohra Advocate representing the respondents has vehemently opposed the submissions advanced by Shri Dhera. He urged that the petitioner voluntarily participated in the proceedings for a period of almost three years and has raised this objection regarding juri. diction of Court after a significant delay and thus, no interference is warranted in the exercise of the supervisory writ jurisdiction looking to the petitioner's conduct. 4. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. 5. Ex-facie, it cannot be disputed that as per Section 43 of the Rajasthan Panchayati Raj Act, 1994 and Rule 89 of the Rajasthan Panchayati Raj Election Rules, 194, only a District Judge, or a Civil Judge or Additional Civil Judge to whom the case may be transferred by such District Judge, has jurisdiction to conduct the proceedings of the election petition. A criminal court viz. ACJM has no jurisdiction to try the election petition. Thus, manifestly, the order dated 24.4.2015 which is assailed in this writ petition is absolutely illegal and without jurisdiction and cannot be sustained. 6. A criminal court viz. ACJM has no jurisdiction to try the election petition. Thus, manifestly, the order dated 24.4.2015 which is assailed in this writ petition is absolutely illegal and without jurisdiction and cannot be sustained. 6. Thus, the matter deserves to be remanded to the District Judge, Balotra to pass appropriate order for the trial of the case either by himself or by a competent Civil Judge or Additional Civil Judge as the case may be. However, this Court is now to examine as to whether the proceedings conducted thus far can be saved or not. Needless to say that till date, it is not the case of the petitioner that any rights of the parties have been decided/ignored by the said court of ACJM. It is also an admitted position that a Senior Civil Judge presides over the court of the ACJM, Balotra and only the designation and seal of the Court are changed in the proceedings which are conducted by one and the same Officer. Thus, no prejudice can be claimed by the petitioner regarding the proceedings conducted thus far more so when the petitioner intentionally kept silent for a period of nearly 3 1/2 years before raising the challenge regarding jurisdiction of the court to try the election petition. Furthermore, only clerical process of recording evidence etc. must have been undertaken in the election petition so far and thus, no prejudice or infringement of any substantive nature can be claimed by the petitioner regarding these proceedings. Thus, the proceedings conducted so far have to be saved in view of the ratio of the Hon'ble Division Bench Judgment in the case of Gopi Chand v. District Judge, Bikaner Cum Election Tribunal, Bikaner [D.B. Civil Special Appeal (Writ) No. 726/2017] decided on 15.1.2018. 7. Accordingly, the writ petition is allowed. The District Judge, Balotra is directed to forth with pass appropriate order for trial and expeditious disposal of the election petition either by himself or by a competent Civil Court in terms of Section 43 of the Rajasthan Panchayati Raj Act, 1994 and Rule 89 of the Rajasthan Panchayati Raj Election Rules, 1994. However, it is made clear that the proceedings conducted so far in the election petition will be saved and the matter shall be carried further from the present stage. Stay application is disposed of. No order as to costs.