The election of a member of a municipality can only be challenged by an election petition filed before the District Judge having territorial jurisdiction over the municipal area, as provided under Section 31 of the Rajasthan Municipalities Act, 2009.

Veerender Singh Siradhana, J.

1. By order dated 22nd October, 2016, the Court of Additional District Judge No. 3, Alwar, quashed and set aside the election of the appellant in an election petition instituted by the non-appellant No. 1 - Kishansahay; of which the appellant is aggrieved of.

2. Shorn of unnecessary details, the essential skeletal material facts are that the appellant was declared elected as Ward Member (Parshad) of Ward No. 42, Nagar Parishad, Bhiwari. His election thereafter was subjected to challenge by one of the unsuccessful candidates, who participated in the election process. The assailment was on the ground of wrong information furnished in the declaration form by the appellant, with reference to his number of children, for he had more than two children after the cutoff date. The Court of Additional District Judge No. 3, Alwar, by the impugned judgment and order dated 22nd October, 2016, allowed the election petition.

3. Learned counsel for the appellant, Mr. Naveen Dhuwan, has argued only on the issue of 'jurisdiction' for the Additional District Judge No. 3, Alwar, did not have the jurisdiction to deal with the election petition filed under Section 31 of the Rajasthan Municipalities Act, 2009 (for short "the Act of 2009"). In support of his submissions, he has strongly relied upon the opinion of a Division Bench of this Court in the case of Babu Lal Jain Versus The District Judge & Ors.: D.B. Special Appeal (Writ) No. 710/2016, decided on 21st November, 2016 and Smt. Jeevani Bano Versus Smt. Asha Arora & Ors.: AIR 1997 Raj. 261 : 1997 (3) WLC 111.

4. According to the learned counsel, the election petition questioning an election of a member of Municipality could be instituted only before the District Judge having the territorial jurisdiction over the municipal area in question. It is further contended that an appeal is provided from an order of the District Judge to this Court under Section 32 of the Act of 2009. Further, the election of a Chairperson and Vice-Chairperson can be called in question under Section 44 of the Act of 2009, before the jurisdictional District Judge, over the municipal area. The proviso vests power in the District Judge, for reason to be recorded in writing, to transfer the same for hearing and disposal to a Judge subordinate to him. For no such proviso is contemplated to Section 31 of the Act of 2009; thus, the legislature intendment is in unequivocal terms to the effect that the election of a member of municipal area, is to be laid and heard by the District Judge alone. For there was no reason why such a proviso could not be retained under Section 31 of the Act of 2009.

5. Per contra; Mr. Shyam Kant Sharma, learned counsel appearing on behalf of the non-appellant, while supporting the impugned judgment and order dated 22nd October, 2016, asserted that election for Member (Parshad) of Ward No. 4, Nagar Parishad, Bhiwari, was held on 22nd November, 2014, and the result was declared on 25th November, 2014, wherein the appellant was declared successful. Learned counsel would submit that the election petition was rightly instituted by the respondent No. 1, on valid grounds, which has been allowed by the Court of the Additional District Judge No. 3, Alwar.

6. Learned counsel would further contend that Section 10 of the Rajasthan Civil Courts Ordinance, 1950 (for short "Ordinance of 1950"), specifically contemplates to the effect that any Additional Judge shall discharge any of the functions of a District Judge which the District Judge may assign to him and in the capacity of those functions, he shall exercise the same power as the District Judge. Therefore, the impugned judgment and order cannot be faulted. Furthermore, in somewhat similar factual matrix, Orissa High Court in the case of Sarat Chandra Mukhi Versus Unknown: W.P. (C) No. 5736 of 2009, decided on 17th August, 2009; declined similar challenge to the election of a Councilor under the Orissa Municipal Act, which contai