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2018 DIGILAW 827 (RAJ)

Poonam v. Sumitra

2018-03-21

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J. - None appears on behalf of the respondents, despite service. 2. This petition is preferred for challenging the order dated 11.05.2015 passed by the District Judge, Bikaner, whereby the election petition preferred by the respondent No.1 Sumitra questioning the election of the petitioner as Sarpanch, Gram Panchayat Udasar, Panchayat Samiti Panchu, District Bikaner has been transferred for hearing and disposal to the Additional Chief Judicial Magistrate No.3, Bikaner. 3. Learned counsel appearing for the petitioner submitted that as per provisions of Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act"), the election petition filed questioning the election of the returned candidate, presented before the District Judge having jurisdiction can be transferred for the reasons to be recorded in writing for hearing and disposal to a Civil Judge or Additional Civil Judge (S.D.) subordinate to District Judge concerned and thus, the order impugned passed by the District Judge, Bikaner, transferring the petition to the Additional Chief Judicial Magistrate No.3, Bikaner is not sustainable in the eye of law. 4. I have considered the arguments advanced and gone through the impugned order and other material available on record. 5. Manifestly, as per the provisions of Section 43 of the Act, the election of a returned candidate may be called in question by any candidate at such election by presenting the election petition in the prescribed manner to the District Judge having jurisdiction, who alone is empowered to transfer the petition for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him, for the reasons to be recorded in writing. 6. A perusal of the order impugned reveals that the petition filed has been transferred by the District Judge not to the Civil Judge or Additional Civil Judge (Senior Division) but to the Additional Chief Judicial Magistrate No.3, Bikaner and thus, the order passed is ex facie erroneous. That apart, while passing the order transferring the matter, no reasons whatsoever have been recorded by the District Judge as mandated by the proviso to sub section (1) of Section 43 of the Act. In this view of the matter, the order impugned is not sustainable in the eyes of law. 7. Accordingly, the writ petition is allowed. The order impugned dated 11.05.2015 passed by the District Judge, Bikaner is set aside. In this view of the matter, the order impugned is not sustainable in the eyes of law. 7. Accordingly, the writ petition is allowed. The order impugned dated 11.05.2015 passed by the District Judge, Bikaner is set aside. The District Judge shall be at liberty to pass an appropriate order for transferring the election petition for hearing and disposal to the appropriate court in conformity with the provisions of Section 43 of the Act. No order as to costs.