Rajasthan High Court

Ghanshyam Gurjar S/O Shri Purilal vs Hemant Singh S/O Phool Chand ... on 6 May, 2022

Bench: Mahendar Kumar Goyal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     S.B. Civil Writ Petition No. 598/2022
Ghanshyam Gurjar S/o Shri Purilal, Aged About 48 Years, R/o
Village     Barkheda            Kalan,        Post       Badai,         Village        Panchayat
Barkhedakalan, Panchayat Samiti Bakani District Jhalawar.
                                                  ----Petitioner/Non-applicant no.1
                                             Versus


 1.Hemant Singh S/o Phool Chand Gurjar, Aged About 32 Years,
 R/o Village Kotda Radi Village Panchayat Barkheda Kalan,
 Panchayat Samiti Bakani Tehsil Bakani, District Jhalawar.
                                                                   Respondent/Applicant

2.Returning Officer, Panchayat Election 2020, Village Panchayat Barkheda Kalan, Panchayat Samiti / Tehsil Bakani, District Jhalawar Through District Election Officer, Jhalawar.

3.District Election Officer (District Collector), Panchayat Election 2020, Mini Secretariat, Jhalawar.

----Respondents/Non-Applicant nos.2 and 3

For Petitioner(s) : Shri Virendra Godara

For Respondent(s) : Shri Rahul Kamwar with Shri Prashant Sharma

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

Judgement reserved on :: 27/04/2022 Judgement pronounced on :: 06/05/2022

The petitioner, a returned candidate, has filed this writ

petition assailing the order dated 17.12.2021 passed by the

learned District Judge, Jhalawar in election petition no.127/2021

whereby, an application filed by him for re-hearing the election

petition, has been dismissed.

(D.B. SAW/462/2022 has been filed in this matter. Please refer the same for further orders)

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The undisputed facts necessary for disposal of the

controversy involved in the matter are within narrow compass.

Election of the petitioner as Sarpanch, Gram Panchayat, Barkhera

Kalan dated 29.1.2020 was challenged by the respondent

no.1/applicant by way of an election petition presented to the

learned District Judge, Jhalawar on 15.2.2020 which was

transferred to the Court of learned Additional District Judge,

Jhalawar (for brevity-`ADJ') vide order dated 17.2.2020. When

the election petition was at the stage of final arguments, on an

application filed by the applicant, it was transferred back by the

learned ADJ to the learned District Judge on account that it did not

have jurisdiction to hear and decide the election petition. After its

re-transfer to the learned District Judge, the petitioner moved an

application dated 29.10.2021 for re-trial, which has been

dismissed by the learned District Judge vide its order dated

17.12.2021, impugned herein.

The sole contention advanced by the learned counsel for the

petitioner is that since the learned ADJ did not have authority to

hear and decide an election petition, the proceedings conducted

before him, were nullity and the matter was required to be tried

afresh from the very inception by the learned District Judge. He

submitted that since the ADJ lacked inherent jurisdiction, the

proceedings conducted before him stood vitiated. He, in support of

his submissions, relied upon following judgements:

1) ONGC Ltd. Vs. M/s. Modern Construction & Co.-(2014) 1 SCC 648;

2) Keshav Dev vs. Radheyshyam-1964 RLW (Raj) 1;

3) Babulal Jain vs. the District Judge, Bikaner & Ors.-2016 (4) WLN 513 (Raj.);

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4) Babita vs. Nihaldei-2017 (2) WLC (Raj.) 275.

Opposing the prayer; but, admitting that the learned ADJ did

not have jurisdiction to hear and decide an election petition,

learned counsel for the respondent submitted that the order

impugned is perfectly valid in view of the precedential law. He

submitted that the proceedings conducted before the ADJ shall not

stand wiped out and the District Judge could proceed from the

stage it has already reached before the ADJ. He further submitted

that even otherwise also, proceedings drawn before the learned

ADJ, though were without jurisdiction; but, shall be saved by the

doctrine of de facto. He, in support of his submissions, relied upon

following judgements:

1) Ashok Kumar Jain vs. District Judge, Chittorgarh & Ors.-2018(1) RLW 225 (Raj.);

2) Sheoji Lal vs. District Judge, Bundi & Ors.-2008 (6) WLC (Raj.) 174;

3) Babulal Jain vs. the District Judge, Bikaner & Ors.-2016 (4) WLN 513 (Raj.);

4) Gopi Chand vs. District Judge, Bikaner cum Election Tribunal, Bikaner & Ors.-2018 (1) WLN 338 (Raj.);

5) Kanhaiya Lal Meghwal vs. The District Judge, Balotra & Ors.-(2019 (1) RLW 819 (Raj.);

6) Gokaraju Rangaraju vs. State of A.P. (1987) 3 SCC

132.

Heard. Considered.

It is not disputed by either party, which otherwise is a well

established legal position, that the ADJ had no authority to hear

and decide the election petition. The only question which arises for

consideration of this Court is as to whether the proceedings

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conducted before the ADJ are saved and the District Judge can

hear the matter from the stage it was transferred to it or whether

the proceedings before the ADJ stand wiped out and the same

have to start afresh from the stage it was transferred initially by

the District Judge to the ADJ.

It is trite law that an order/decree passed by a Court lacking

inherent jurisdiction is a nullity. A Constitution Bench has, in the

case of Kiran Singh & Ors. Vs. Chaman Paswan & Ors.-AIR

1954 SC 340, held as under:

"It is fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be forced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of the parties."

A Division Bench of this Court has, in the case of, Keshav

Dev (supra), while dealing with an identical situation, although

under the erstwhile Panchayati Raj Act, held as under:

"8. We have given due consideration to these arguments and in order to decide the question set out above it would be necessary to first decide "whether the Munsif or the Civil Judge hearing the election petition functions as a persona designata or as a civil court". It may be pointed out that rule 83 no doubt lays down that the procedure provided in the Code of Civil Procedure, 1908, (Central Act V of 1908), in regard to suits, shall, in so far as it can be made applicable, be followed in the hearing of the petition, but this does not mean that the Civil Procedure

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Code would apply to election petitions even with regard to appeals. In our opinion, a plain meaning of this rule only shows that the Munsif or the Civil Judge while trying the election petition should follow the provisions of the Code of Civil Procedure in the same way as that procedure is followed in regard to suits but this procedure is to be followed only in so far as it can be made applicable and that too only in the hearing of the petition. There is nothing in this rule to indicate that the Munsif, at the time of hearing the election petition, functions as an ordinary court of civil jurisdiction subordinate to the District Judge or that an appeal would lie to the District Judge a matter of course. It need hardly be stressed that an appeal is a creature of statute and unless such a right is specifically provided by the law, it cannot be inferred. The Munsif while hearing the election petition may have all the trappings of a court but he cannot be deemed to function as an ordinary civil court. Our attention has been drawn to the fact that in the heading of rules 84 and 85 the term "court" is used and that this indicates that the election tribunal is a civil court. This argument is also not tenable because the term "court" as used in the heading is meant only to show that while hearing the election petition the Munsif or civil Judge functions as a judicial tribunal and it is only in that sense that this word seems to have been used. It is pertinent to note that in R. 85 it is provided that the Munsif or [the Civil Judge, as the case may be, hearing a petition shall have the same powers and privileges as a Judge of a civil court when trying a suit.

This leaves no room for any doubt that the Munsif or the Civil Judge is not made identical with the civil court), otherwise it would have been necessary to provide that they would have the same powers and privileges as a civil court. In Keshri Prasad Vs. Bodhraj-1951 RLW, 102, the question arose whether a District Judge hearing an election petition u/sec. 22(1) of the U.P. Municipalities Act was a civil court subordinate to the High Court within the

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meaning of sec. 115 Civil Procedure Code. It was held, relying on Masoon Ali Khan Vs. Ali Ahmad Khan-AIR 1933 All. 764, Keshav Ramchandra Vs. Municipal Borough, Jalgaon and others-AIR 1946 Bom. 64 and Municipality of Sholapur Vs. Tuljaram Krishnasa Chaven-1931 AIR 1931 Bom. 582 that the District Judge hearing an election petition was not a civil court but a persona designata and that he was not amenable to the jurisdiction of the High Court under sec. 115 C.P.C. The same view has been taken by the learned Judges of the Madras High Court in A. Narasimha Ayyangar Vs. K. Ramayya Chettier-AIR 1932 Mad. 560. In Kedar Nath Vs. S.N. Misra-AIR 1957 All. 484, it was held by a full bench that the Sub-Divisional Officer hearing an election petition under the U.P. Panchayat Raj Act was a special Tribunal and was therefore a persona designata. It would be unnecessary for us to repeat the arguments given in the said cases. It would suffice to say that we respectfully agree and see no reason to depart from the view which this Court has already taken in Keshri Prasad's case (supra). Since we have come to the conclusion that the Munsif or Civil Judge hearing the election petition under rule 78 is a persona designata, it follows as necessary corollary that the District Judge had no jurisdiction to transfer the election petition from one Munsif to another Munsif or from one Munsif to another Civil Judge.

9. Before we part with the case we may advert to one argument which has been raised by learned counsel for the non-petitioners. It is urged by them that the petitioners had submitted to the jurisdiction of the transferee court and after having taken a chance of a decision in their favour it was no longer open to them to invoke the extraordinary jurisdiction of this Court in order to get the decision of the Tribunal set aside. It seems from the orders of the learned Judge in appeal that this argument proceeded on the observations made by him. We have given our careful consideration to this argument

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and we think that it is not tenable. It may be pointed out that in Kiransingh Vs. Chaman Paswan-AIR 1954 S.C.

340) it was observed by their Lordships of the S.C. that "it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. These observations in our opinion equally apply to the Tribunals created by statute and if a certain Tribunal has no jurisdiction to hear and decide a certain matter no amount of consent by the parties can confer jurisdiction upon it. The same view has been taken by this Court earlier in Dholpur Co-operative Transport and Multi-purposes Union Ltd. Vs. The Appellate Authority, Rajasthan-1954 RLW, 649 and Badridass Kanhaiyala Vs. The Appellate Tribunal of the State Transport Authority, (Rajasthan) (ILR 1959, 9 Raj. 869). Thus where it is found by this Court that if a lower court or a tribunal has given a decision which amounts to a nullity on account of inherent or patent lack of jurisdiction, then it becomes its duty to quash it by the grant of a writ of certiorari notwithstanding the fact that the petitioner failed to question the jurisdiction of the lower court or the tribunal at an earlier stage and challenged that jurisdiction before the High Court for the first time. In our opinion the learned Judge ought not to have declined to interfere in the matter when he himself came to the conclusion that the order passed by the learned District Judge about the transfer of the election petitions was void. When it was found that the decisions were not given by the proper Tribunal, the Court ought not to have gone into the merits of the case because it was for the appropriate Tribunal to first weigh the

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evidence of the parties and then to decide the case on merits.

10. We therefore allow both the appeals and set aside the impugned orders of the learned single Judge. The proceedings taken by the transferee courts are also quashed. We further direct that Election Petition No. 2 of 1962 should be sent back to the Munsif, Sawai Madhopur and Election Petition No. 2 of 1961 should be sent back to Munsif, Saloomber, and they should try and decide the cases afresh according to law. The petitioners will receive their costs from the non- petitioners in this Court."

Thus, the Division Bench set aside the proceedings taken by

the transferee court as the transferee court lacked inherent

jurisdiction to deal with the election petition.

The findings of the Division Bench in case of Keshav Dev that

a Judge while hearing an election petition acts as a persona

designata, have further been re-affirmed by a Division Bench of

this Court vide its judgement dated 16.5.2019 in the case of

Panna Ram vs. Ramu Ram, D.B. Special Appeal (Writ)

No.592/2019.

Their Lordships have, in case of Mahadeo vs. Hanuman

Mal & Ors.-RLW 1969 Raj. 241, held as under:

"20. In this connection I may refer to the observations made in Shyam Nandan Sahay vs. Dhanpati Kuer-AIR 1960 Pat 244. In that case a distinction was drawn between the cases where there is inherent lack of jurisdiction apparent on the face of the record and the case where it is doubtful, or at least not so apparent, whether the Court possesses jurisdiction or not. Where there is total lack of jurisdiction, nothing can confer the same on the Court, and an objection to

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jurisdiction cannot be waived. Therefore, even if such objection has not been raised by any party, the entire proceeding of the Court from the very initial stage is without jurisdiction and void.

In the case of ONGC Ltd. (supra), the Hon'ble Apex Court,

held as under:

"17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.

23. We are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law."

Therefore, it appears to be a settled legal position that

proceeding before a court lacking inherent jurisdiction is nullity.

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Now, this Court considers the judgements relied upon by the

petitioner.

In the case of Babulal Jain (supra), a Division Bench of

this Court directed the matter to proceed from the stage before

the learned District Judge at which it was transferred from the ADJ

in view of its singular facts. It was observed therein as under:

"We are informed that the election petition is still at a nascent stage of exchange of pleadings. The matter was proceeded from that stage before the Court of District and Sessions Judge, Bikaner in accordance with law."

It is trite law that a judgement of the Court cannot be

construed as a Statute or cannot be taken as a euclid formula and

has to be read in the context it was rendered. The direction of the

Division Bench to proceed from the stage at which it was

transferred, was given in view of the singular fact that the election

petition was at the nascent stage of exchange of pleadings and

cannot be accepted as a uniform direction applicable whenever a

case is transferred from an incompetent court to the competent

court irrespective of its stage. Other judgements relied upon by

the petitioner, be it in case of Gopi Chand (supra) or in case of

Kanhaiya Lal Meghwal (supra) (based on Gopi Chand), are based

on directions of Division Bench in the case of Babulal Jain (supra)

without appreciating or considering the precedential law of the

Hon'ble Apex Court of India in the cases of Kishan Lal (supra),

Mahadeo (supra) and a Division Bench judgement of this Court in

the case of Keshav Dev (supra) and hence, have no binding effect.

(Kindly refer the judgements of the Hon'ble Supreme Court of

India in State of Assam vs. Ripa Sarma-(2013) 3 SCC 63 and

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Indore Development Authority & Ors. vs. Shailendra (Dead)

through L.Rs. & Ors.-(2018) 3 SCC 412).

As regards the submission of the learned counsel for the

petitioner that the proceedings drawn before the learned ADJ,

even if were without jurisdiction, are saved by the de facto

doctrine requires not much deliberation as the same has no

applicability in the present case. This doctrine applies where an

unqualified/incompetent person/Judge exercises jurisdiction under

lawful authority. Their Lordships have held in the case of

Gokaraju Rangaraju vs. State of Andhra Pradesh-(1981) 3

SCC 132 as under:

"A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief."

The upshot of the aforesaid discussion is that proceedings

conducted before the learned ADJ cannot be saved as it lacked

inherent jurisdiction to hear an election petition. In view thereof,

the writ petition deserves to be allowed and is accordingly

allowed. The order dated 17.12.2021 passed by the learned

District Judge in election petition no.127/2021 is quashed and set

aside. The learned District Judge, Jhalawar is directed to hear and

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decide the election petition afresh from the stage it was

transferred to the learned ADJ, in accordance with law barring

filing of fresh pleadings in view of judgement in case of Babulal