15/12/2016 (2 of 15 ) [CMA-5373/2016] By the order dated 8th September, 2016, the Additional District Judge No.2, Kota, allowed the election petition instituted by the non-appellant/petitioner (Nand Lal Kalwar), setting aside the election of the appellant as Member from Ward No.18, Kota Municipal Corporation held on 22nd November, 2014, securing 2272 votes while the non-appellant/petitioner secured 2107 votes. The non-appellant/petitioner instituted Election Petition Number 3 of 2015, alleging that nomination papers of the appellant were liable to be rejected in the face of Section 24 and 24(iii) of the Rajasthan Municipalities Act, 2009 (for short Act of 2009), for an FIR Number 375 of 2005 dated 6th August, 2005, for offence under Section 427 and 127 of the Indian Penal Code read with Section 3 of the Prevention of Damage to Public Property Act, 1984 and charges were framed against the appellant by the Court of Judicial Magistrate No.3 (North), Kota on 28th July, 2006. The appellant contested the election petition.
2. The Court of Additional District Judge No.2, Kota, on a consideration of the pleadings of the parties, evidence adduced and materials available on record, allowed the election petition and declared the election of the appellant as Member from Ward no.18, Kota Municipal Corporation, as null and void. The Court below also made a direction for an enquiry, in accordance with the Rules, against the concerned Election Officer.
3. Learned counsel for the appellant, reiterating the pleaded facts and grounds of the memo of the appeal, has primarily (3 of 15 ) [CMA-5373/2016] argued on the issue of jurisdiction of the Additional District Judge No.2, Kota, contending that under Section 31 of the Act of 2009, the District Judge is only entitled to hear the election petition. It is urged that the election petition could not have been transferred to an Additional District Judge for adjudication even in exercise of powers under Section 10(3) of the Rajasthan Civil Courts Ordinance, 1950 (for short the Ordinance of 1950). Learned counsel would further submit that the controversy raised herein as aforesaid, is no more res- integra in view of the adjudication made by a Division Bench of this Court at Principal Seat, Jodhpur, in D.B. Special Appeal No.710 of 2016 (Babu Lal Jain Versus The District Judge, Bikaner & Ors.), decided on 21st October, 2016.
4. Per contra; Mr. Sazid Ali appearing for non- appellant/petitioner (Nand Lal Kalwar), while supporting the impugned order dated 8th September, 2016, asserted that the jurisdiction of the Court below is not open for assailment by the appellant at this stage after having submitted to the jurisdiction and on an adjudication against him for no such objection was raised all along the pending proceedings on the election petition until final adjudication. According to the learned counsel, the election petition was instituted before the District Judge, Kota, and the non-appellant/petitioner never made any request for transfer of the election petition to the Additional District Judge No.2, Kota. In response to the opinion in the case of Babu Lal Jain (supra), learned counsel has relied upon the opinion of the (4 of 15 ) [CMA-5373/2016] High Court of Karnataka in the case of Ramaiah Versus State of Karnataka by Secretary, Revenue Department & Ors.: MANU/KA/0082/2003, asserting that when the Courts are established in exercise of sovereign power of the State and as long as such Court have functioned and discharged the duties assigned to it, the validity of decisions cannot be assailed in collateral proceedings, such as challenging the validity of the orders delivered by such Courts. Any subsequent declaration that the Court or the Tribunal was not validly constituted could not affect the validity of such decision or affect the matters that stood concluded.
5. Learned counsel further urged that the appellant having raised no objection during the trial of the election proceedings as to jurisdiction; now cannot raise the issue. In order to fortify his submissions, he has relied upon the opinion of the Division Bench in the case of State of Rajasthan Versus Dr. J.P. Sharma & Ors.: 1983 Cri.L.J. 858 = 1982 WLN 60. Reliance has also been placed on the opinion of the Supreme Court in the case of Gokaraju Rangaraju Versus State of Andhra Pradesh and connected Appeal: (1981) 3 SCC 132, stating that 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. Thus, 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 (5 of 15 ) [CMA-5373/2016] office, cannot be permitted to be questioned in a litigation between the private litigants.
6. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
7. Indisputably, the appellant successfully contested the election as Member from Ward No.18, Kota Municipal Corporation, held on 22nd November, 2014, securing 2272 votes whereas unsuccessful non-appellant/petitioner secured 2107 votes. It is also not in dispute that the non-appellant/petitioner instituted the election petition challenging the legality, validity and correctness of the election of the appellant for inherent defect in the nomination papers of the appellant in the face of contemplation under Section 24 and 24(iii) of the Act of 2009.
8. On a consideration of the issue as to whether the District Judge hearing an election petition under section 31 of the Rajasthan Municipalities Act, 2009, is a persona designata or acts in his capacity purely as a Civil Court, empowered to draw on his power to transfer a case to the Additional District Judge, was considered in these proceedings on the appeal on 6th October, 2016, and taking note of the divergent views, it was considered appropriate that the matter is addressed by a Larger Bench on the two primary questions. It will be gainful to take note of the order dated 6th October, 2016, which reads thus:
The question which arises in the present (6 of 15 ) [CMA-5373/2016] miscellaneous appeal is a vexed one i.e. as to whether the District Judge hearing an election petition under section 31 of the Rajasthan Municipalities Act, 2009 is a persona designata or acts in his capacity purely as a Civil Court, empowered to draw on his power to transfer a case to the Additional District Judge under Section 10(3) of the Rajasthan Civil Courts Ordinance, 1950 (hereinafter `the Ordinance of 1950'). A Single Bench of this court in the case of Narayan Dutt Vs. Ibrahim [1997(2) WLC 134] with reference to Section 40 of the Rajasthan Municipalities Act, 1959, a provision para materia, held that the District Judge hearing an election petition is not thereunder a persona designata, but acts as a civil court. However a contrary view has been taken by another Single Bench of this Court in the case of Smt. Jeevani Bano Vs. Smt. Asha Arora [AIR 1997 Raj. 261] with reference to Section 40 of the Rajasthan Municipalities Act, 1959. A contrary view has also been taken by another Single Bench of this court in the case of Smt. Indira Vs. Smt. Prabha [1998(1) WLC (Raj.) 81] albeit with reference to Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (election) Rules, 1994, also provisions para materia with section 31 of the Rajasthan Municipalities Act, 2009. It has been held in the aforesaid opinion that a District Judge hearing an election petition under Rule80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 acts as a persona designata and not as a civil court. In view of aforesaid conflicting judgments by different Single Benches of this court on pari materia provisions i.e. Section 40 of the now repealed Rajasthan Municipalities Act, 1959 Section 31 of the now extant Rajasthan Municipalities Act, 2009 and Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, there is obviously no clarity on the state of law as to whether, the District Judge when acting as the designated authority under a statue, acts as a persona designata, who cannot transfer the election petition to an Additional District Judge by resort to Section 10(3) of the Ordinance of (7 of 15 ) [CMA-5373/2016] 1950, or a civil court, where he can transfer the election petition before him case to an Additional District Judge under Section 10(3) of the Ordinance of 1950. In the circumstances, it would be appropriate that the 3 following questions of law be addressed by a Larger Bench i.e.:-
(i) Whether the District Judge under section 31 of the Rajasthan Municipalities Act, 2009 hearing an election petition acts as a civil court or as persona designata?
(ii) Whether Section 10(3) of the Rajasthan Civil Courts Ordinance, 1950 confers jurisdiction on the District Judge acting under Section 31 of the Act of 2009 to transfer an election petition before him to an Additional District Judge? Let the matter be placed before Hon'ble the Chief Justice for constitution of a Larger Bench for consideration of the aforesaid questions of law.
9. While the matter was pending consideration for constitution of a Larger Bench on the questions aforesaid; the adjudication in the case of Babu Lal Jain (supra), was made by a Division Bench of this Court, at Principal Seat, Jodhpur, on 21st November, 2016. For the issue was no more res-integra on 9th December, 2016; Division Bench of this Court made the following order on this appeal;
Learned Counsel for the Appellant submits that reference formulated by the learned Single Judge already stands answered by the Principal Seat at Jodhpur in D.B. Special Appeal Writ No.710/2016, dated 21.11.2016 In that view of the matter the appeal may be sent back to the learned Single Judge for adjudication in accordance with law. Rather than to issue notice at this stage, in view of the order dated 21.11.2016 the matter is remitted (8 of 15 ) [CMA-5373/2016] back to the learned Single Judge for final adjudication in accordance with law. Liberty granted to motion for listing before the learned Single Judge.
10. From the memo of the appeal and arguments put forth by the learned counsel for the appellant, the primary issue addressed is only with reference to the jurisdiction of the Additional District Judge, who adjudicated upon the election petition vide impugned order dated 8th September, 2016.
11. In the case of Babu Lal Jain (supra), the Division Bench of this Court while examining the question as to whether District & Sessions Judge, Bikaner, was legally justified to make an order for transfer of the election petition to the Court of Additional District & Sessions Judge No.2, Bikaner, in the face of Section
31 of the Act of 2009, made the adjudication, also taking into consideration the mandate of Section 10 of the Ordinance of 1950 and Article 243(Z)(A) of the Constitution of India. The adjudication of the learned Single Judge upholding the action of the District Judge in transfer of an election petition to the Additional District & Sessions Judge, in the backdrop of the contemplation under Section 31 and 44 of the Act of 2009 was considered and was held unsustainable in law. On a detailed consideration of the text of Section 31 and 44 as well as Article 243(Z)(A) of the Constitution of India, the Division Bench in the case of Babu Lal Jain (Supra) held thus: The Appellant and Respondent No.3 were candidates for elections in Ward No.12 of the (9 of 15 ) [CMA-5373/2016] Municipal Board, Nokha. The Appellant was declared elected on 20.08.2015. Respondent No.3 filed an election petition before the District Judge, Bikaner on 09.02.2015 under Section 31 of the Act. The District Judge transferred it on 10.09.2015 to the Additional District & Sessions Judge, No.2, Bikaner under Section 10 of the Ordinance. In the nature of the controversy it is considered appropriate to set out the relevant extracts of the statutory provisions of Sections 31 and 44 of the Act as follows:-
31. Election Petition.- (1) The election of any person as a member of a Municipality may be questioned by an election petition filed within one month from the date of election before the District Judge having territorial jurisdiction over the municipal area on one or more of the following grounds, namely:- ***************************************Undoubtedly Section 10 of the Ordinance provides that the District Judge for purposes of speedy disposal, may transfer a case to an Additional District & Sessions Judge. But, if there is any conflict with the provisions of Part IXA of the Constitution introduced by the 74th Amendment, more particularly Article 243(Z)(A) dealing with election to municipalities empowering the Legislature of a State to make law with regard to all matters in connection with elections to the municipality, the former will have to give way to the latter. Section 7 of the Act provides that the term of a municipality shall be for five years. Section 43(11) of the Act provides that the term of the office of a Chairperson or Vice-Chairperson will correspond with the term of the municipality. Section 11 of the Act provides for elections to the municipality. Section 13 of the Act provides for an electoral roll for every ward and also provides who shall be eligible to vote. Since a Member is elected by direct vote under Section 25 of the Act, apparently the Legislature thought it important that if the Membership of a person elected reflecting the will of the electorate was called into question, none other than the District Judge himself should hear the matter. Section 30 of the Act provides that no Civil Court shall have jurisdiction to entertain or adjudicate any question relating to election and which can be done only in an election petition presented in accordance with the Act. Once a person has been elected as Member or as Chairperson or Vice-Chairperson he can be (11 of 15 ) [CMA-5373/2016] removed on any of the grounds mentioned in Section44. Determination of validity of election of Chairperson or Vice-Chairperson.- (1) The election of a Chairperson or Vice-Chairperson under Sec.43 shall not be called in question except by an election petition presented to the District Judge having territorial jurisdiction, over the municipal area; Provided that where an election petition is presented as aforesaid to a District Judge, he may, for the reasons to be recorded in writing, transfer the same for hearing and disposal to a Judge subordinate to him. Explanation.- The District Judge or any other Judge to whom an election petition is or transferred and by whom it is heard in (10 of 15 ) [CMA-5373/2016] accordance with the provisions of this Section is hereinafter referred to as the Judge.
39 of the Act. By virtue of the Rajasthan Municipalities (Election)(Amendment) Rules, 2014, published in the Gazette on 11.07.2014, a person elected as a Member is eligible to be considered for election as a Chairman under Rule 79. Similarly, a person elected as a Member is eligible to contest to the post of Vice Chairman. But if the election of the Member or Chairperson or Vice-Chairperson is to be called into question it can be only way of an election petition under Section 31 and 44 of the Act respectively. If the election of a Chairperson or Vice- Chairperson is challenged successfully he still retains his Membership of the Municipality. But if he loses his status as elected Member of the Municipality, the loss of status as Chairperson or Vice-Chairperson is automatic without the need to challenge it separately. In the circumstances, the Legislature thought it proper that in the former case if the Membership itself was an issue the power should remain with the District Judge alone while in the latter case the District & Sessions Judge can transfer the case to any other Additional District & Sessions Judge. This is the reason for insertion of the proviso to Section 44 of the Act which is otherwise absent in Section 31. If the Legislature had desired that an election petition questioning Membership could also be either tried by the District & Sessions Judge or transferred to another Additional District & Sessions Judge, there is no reason why the Legislature could not have made that specific incorporation in Section 31 itself alike Section 44 of the Act. The first principle of interpretation is to read the statute as it is and decipher the intention of the Legislature. If the language of the statute is clear and (12 of 15 ) [CMA-5373/2016] admits of no ambiguity, there is no occasion for the Court to read something into the statute which the Legislature did not intend and did not provide for. Similarly the principle of harmonious reading requires that if there is a conflict between two provisions of the Act or one cannot be interpreted without doing violence to the other than only the question of harmonious interpretation arises. In the present case there is no conflict between Section 31 and 44 of the Act which operate in different fields to require any harmonious reading of the same. The order dated 10.09.2015 takes into consideration Section 10 of the Ordinance only without considering the provisions of the Act more particularly Section 31 of the same. Appropriately, the appellant ought to have challenged this order directly rather than to have moved before the Additional District & Sessions Judge contending that he had no jurisdiction in the matter. The same infirmity attaches to the order dated 18.01.2016 of the Additional District Judge which does not reflect any consideration or application of mind to the different provisions of the Act as discussed hereinabove. The conclusion that there was nothing in the Act to prevent the Additional District & Sessions Judge from hearing the election petition, in our opinion reflects gross inadequate appreciation of the provisions of the Act which have not even been noticed let alone discussed. Both the orders are held to be unsustainable and are set aside. Election Petition No.074/2015, which appears to have been numbered as Election Petition No.99/2015 before the Additional District & Sessions Judge, No.2, Bikaner, has to be tried by the District & Sessions Judge, Bikaner alone. and cannot be transferred to any other (13 of 15 ) [CMA-5373/2016] Court.
12. A glance of the detailed discussion by the Division Bench; leaves no element of doubt that the controversy raised in the instant writ application stands resolved.
13. In the case of Smt. Jeevani Bano Versus Smt. Asha Arora & Ors.: AIR 1997 Raj. 261, relying upon the opinion of the Supreme Court in the case of Kiran Singh Versus Chaman Paswan: AIR 1954 SC 340; a Coordinate Bench of this Court, in no uncertain terms held that no other authority other than authorized by the Act to hear and decide the election petition in the rajasthan municipalities act was vested with the powers to adjudicate the election petition. The decree and judgment passed by any other authority would be wholly without jurisdiction and will be liable to be set aside.
14. In the case of Kiran Singh (supra), the Supreme Court observed that a defect of jurisdiction whether it is a 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 defect cannot be cured even by consent by parties. It will be gainful to take note of the text at Page 342 of the judgment in the case of Kiran Singh (supra), which reads thus:
It is fundamental principle that a decree passed by a Court without jurisdiction is nullity and that its validity 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. (14 of 15 ) [CMA-5373/2016] A defect of jurisdiction whether it is a 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 defect cannot be cured even by consent by parties
15. In the case of Dr. J.P. Sharma & Ors. (supra), a Division Bench of this Court dealt with the issue in the backdrop of the factual matrix wherein two Special Judge exercised jurisdiction and no objection was raised during trial regarding jurisdiction whereas factual matrix of the instant case at hand is entirely different and distinguishable.
16. In the case of Ramaiah (supra), the Larger Bench of High Court of Karnataka examined the issue in the backdrop of the factual matrix wherein the issue of establishment of the Courts exercising sovereign power was assailed in collateral proceedings, which has no application to the facts of the case at hand, and therefore, is of no help to the non- appellant/petitioner.
17. In the case of Gokaraju Rangaraju (supra), the Supreme Court examined the controversy wherein the Supreme Courts declaration invalidating the appointment of Additional Sessions Judge considered the effect of declaration on judgments pronounced by the Additional Sessions Judge, prior to declaration, which is not the case at hand, and therefore, opinion is of no relevance. The issue as to the jurisdiction of the Additional District Judge while adjudicating upon an election petition transferred by the District Judge has been held to be (15 of 15 ) [CMA-5373/2016] invalid by the Division Bench, in the face of text of Section 31 of the Act of 2009 for Section 44 operates in a different field and the question of harmonious reading of two sections simply did not arise.
18. For the reasons and discussions aforesaid, the appeal succeeds and is hereby allowed.
19. The impugned order dated 8th September, 2016, made by the Court below is hereby quashed and the case is remanded to the District Judge to hear and adjudicate upon the election petition in accordance with law from the stage of its institution in accordance with law.
20. No costs. (VEERENDR SINGH SIRADHANA)J. SS/103
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