Rajasthan High Court - Jodhpur

Kishan Singh vs Tarachand on 9 May, 2023

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 24/2023

Kishan Singh S/o Kalyan Singh, Aged About 63 Years, By Caste Rajput, Resident Of Village Indrapura, Ward No. 1, Tehsil Churu (Raj.)

----Petitioner Versus

1. Tarachand S/o Shri Motaram, Aged About 55 Years, By Caste Jaat, Resident Of Ward No. 9 Village Indrapura, Tehsil Churu. (Raj.)

2. District Election Officer, (Panchayat) Post Office, Churu Rajasthan.

                                                                               ----Respondents


             For Petitioner(s)          :     Mr. Nitin Trivedi
             For Respondent(s)          :     Mr. J.L. Purohit, Senior Advocate with
                                              Mr. Rajeev Purohit, Mr. Sourabh Kant
                                              Vyas



                          HON'BLE MS. JUSTICE REKHA BORANA

                                                   Order

Reportable
             09/05/2023

1. The present revision petition has been preferred against the

order dated 01.02.2023 passed by the Senior Civil Judge, Churu in

Civil Original No.02/2020 whereby an application under Order VII

Rule 11 of Code of Civil Procedure (CPC) as preferred by the

defendant has been rejected and it has been held that the Court

did have jurisdiction to try/hear the election petition in terms of

Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter

referred to as 'the Act of 1994').

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2. The facts of the case are that respondent no.1 Tarachand

preferred an election petition before the District Judge, Churu

challenging the election of petitioner Kishan Singh as Sarpanch of

Gram Panchayat Indrapura, Tehsil and District Churu. After the

election petition being registered, the same was transferred to the

Court of Senior Civil Judge, Churu. In the said petition, an

application under Order VII Rule 11, CPC was preferred by

defendant Kishan Singh with the submission that in terms of

Section 43 of the Act of 1994, the Court did not have the

jurisdiction to hear the election petition as the Senior Civil Judge is

not the authority to whom the petition could have been

transferred in terms of Section 43 of the Act of 1994. The said

application as preferred by the defendant was rejected by the

Court with a finding that the said Court also had the powers of a

Civil Judge and therefore, it did have the jurisdiction to try the

election petition. Against the said order, the present revision

petition has been preferred.

3. A preliminary objection has been raised by the learned

Senior counsel appearing for the respondent regarding the

maintainability of the present revision petition on the ground that

the order impugned has been passed by an authority acting as

"Persona Designata" and therefore, is not governed by the Code of

Civil Procedure and hence, is not amenable to the revisional

jurisdiction under Section 115 of CPC. Learned senior counsel

submitted that the order impugned being passed in an election

petition by the officer/authority acting as a persona designata, the

only remedy would be a writ of certiorari under Article 226 of the

(3 of 9) [CR-24/2023]

Constitution of India. In support of his submission, learned senior

counsel relied upon the judgments passed by the Co-ordinate

Benches of this Court in S.B. Civil Writ Petition

No.14776/2016; Babita Vs. Nihaldei & Others (decided on

06.12.2016) and S.B. Civil Revision Petition No.145/2015;

Mamta Vs. Santosh & Ors. (decided on 01.03.2016).

4. In response to the preliminary objection, learned counsel for

the petitioner submitted that firstly, the order impugned was not

passed by an officer acting as persona designata, as the Senior

Civil Judge is not an officer authorized under Section 43 of the Act

of 1994. Secondly, rather it is the ground of the petitioner that

the present petition could not have been transferred to the Senior

Civil Judge as the Senior Civil Judge was not the authority

empowered in terms of Section 43 of the Act of 1994. Therefore,

once it is held that the Senior Civil Judge did not pass the order

impugned acting as a persona designata, the ground as raised by

learned Senior counsel would even otherwise not survive.

5. The ground in the present petition as raised by learned

counsel for the petitioner is that in terms of Section 43 of the Act

of 1994, there are three authorities designated who have the

power to hear an election petition. The said authorities are the

District Judge, Civil Judge and Additional Civil Judge (Senior

Division). Admittedly, in the present matter, the petition was

transferred to the Senior Civil Judge who is not the authority

authorized under Section 43 of the Act of 1994 and therefore, the

Court could not have the jurisdiction to hear the election petition.

In support of his submissions, learned counsel relied upon the

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judgments passed in Council of Architecture Vs. Mukesh

Goyal and Others; AIR 2020 SC 1736 and Keshav Dev Vs.

Radhey Shyam; 1964 RLW 1. Learned counsel also relied upon

the recent judgment of a Co-ordinate Bench of this Court in the

case of Ram Singh Vs. Kanya Bai (S.B. Civil Writ Petition

No.9642/2021) decided on 06.05.2022.

6. In response to the said submission, learned Senior counsel

appearing for the respondent submitted that in terms of the

Rajasthan Judicial Service Rules, 2010 (for short 'the Rules of

2010'), the Senior Civil Judge as well as the Additional Civil Judge

(Senior Division) fall in the cadre of Senior Civil Judge and

therefore, both enjoy the same rights and same jurisdiction.

Learned counsel submitted that as the Senior Civil Judge is a

cadre defined under the Rules of 2010, by virtue of said rules, the

Senior Civil Judge would also have the same jurisdiction as the

Additional Civil Judge (Senior Division) has. Learned counsel

further submitted that even in Babita (supra) and Mamta's case

(supra), the orders were passed by the Senior Civil Judge and

both the petitions have been entertained without any objection to

the jurisdiction of the Court/authority having been raised.

7. Heard learned counsel for the parties and perused the

material available on record.

8. Section 43 of the Act of 1994 reads as under :

"43. Determination of dispute as to elections.- (1) An election under this Act or the rules made thereunder 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:

(5 of 9) [CR-24/2023]

Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him. (2) A petition presented under Sub-Sec. (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final."

(Emphasis supplied)

9. In Keshav Dev's case (supra) while dealing with the similar

issue, the Division Bench of this Court held as under :

"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 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

(6 of 9) [CR-24/2023]

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 (1) 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 meaning of sec. 115 Civil Procedure Code. It was held, relying on Masoon Ali Khan Vs. Ali Ahmad Khan (2), Keshav Ramchandra Vs. Municipal Borough, Jalgaon and others (3) and Municipality of Sholapur Vs. Tuljaram Krishnasa Chaven (4) 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 (5). In Kedar Nath Vs. S.N. Misra (6) 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."

(Emphasis supplied)

The ratio as held by the Division Bench is clear firstly, the

District Judge hearing an election petition is not a civil court but a

persona designata and is not amenable to the revisional

jurisdiction of the High Court under sec. 115 C.P.C. and secondly,

the District Judge has no jurisdiction to transfer the election

(7 of 9) [CR-24/2023]

petition from one Munsif to another Munsif or from one Munsif to

another Civil Judge.

10. In Ram Singh's case (supra) wherein the issue was

whether the District Judge was right in transferring the election

petition to the Additional District Judge, the Co-ordinate Bench of

this Court, while relying upon the earlier judgments on the issue

including that of Babita (supra) held as under :

"Thus, from the conspectus of the statutory provisions in the back drop of the aforesaid judgements, an un-exceptional position which emerges is that an election petition under the Act of 1994 can either be heard by a District Judge or by a Civil Judge or Additional Civil Judge (Sr. Division) subordinate to him only and by no other Court including an Additional District Judge."

(Emphasis supplied)

What can be spelt out in unequivocal terms from the above

judgments is that the District Judge can either himself hear an

election petition or can transfer it to one of the two authorities as

provided under Section 43 of the Act of 1994. What can be

interpreted from the clear language of the provisions is that the

authority in terms of Section 43 of the Act of 1994 does not

function as a Court but acts as a persona designata i.e. as Election

Tribunal. Therefore, even if any Senior Civil Judge falls in the said

cadre, he cannot be equated to Additional Civil Judge (Senior

Division) as authorized under Section 43 of the Act of 1994. The

intention of the legislature has been clarified in Mishri Lal Vs.

State & Anr.; S.B. Civil Writ Petition No.13750/2015

(decided on 15.12.2015), wherein it has been held that the fact

that the legislature has specified the court to which the election

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petition can be transferred pre-supposes that transfer of election

petition to any other court is not intended by the legislature. It

has further been held that intention of the legislature in enacting

the provisions was to create 'Election Tribunal' and not the 'civil

court'. The judge is not made identical with the civil court,

otherwise it would have the same powers and privileges as a civil

court.