An election petition under the Act of 1994 can only be heard by a District Judge or by a Civil Judge or Additional Civil Judge (Sr. Division) subordinate to him.

JUDGMENT

Mahendra Kumar Goyal, J. - This writ petition has been filed by the petitioner, a returned candidate, whose election as Sarpanch, Gram Panchayat Gehu Khedi, Tehsil Aklera has been set aside by the learned Additional District Judge, Aklera, District Jhalawar in the election petition no. 25/2020 vide its judgement dated 25.8.2021 and the respondent has been declared as elected Sarpanch.

2. The facts in brief are that in the election conducted on 22.1.2020, the petitioner was elected as Sarpanch, Gram Panchayat Gehu Khedi which came to be challenged by the respondent-applicant by way of an election petition presented before the learned District Judge, Jhalawar under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for brevity-'the Rules of 1994') which was transferred for its hearing to the Court of learned Additional District Judge, Aklera, who, vide judgement dated 25.8.2021, set aside the election of the petitioner as Sarpanch and has declared the respondent as elected Sarpanch.

3. Gravamen of the contention of the learned counsel for the petitioner has been that the judgement dated 25.8.2021 is a nullity inasmuch as the learned Additional District Judge had no authority to hear and decide the election petition. Drawing attention of this Court towards the provisions of Section 117 and 43 of the Rajasthan Panchayati Raj Act, 1994 (for brevity-'the Act of 1994') and Rule 80 of the Rules of 1994, he canvassed that under the scheme of the Act and the Rules, it is either District Judge or a Civil Judge or Additional Civil Judge (Sr. Division) who has been authorised to hear the election petition and no other authority. He therefore prays that the writ petition be allowed and the judgement impugned dated 25.8.2021 be quashed and set aside. He in support of his submissions relies upon following judgements:

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

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

3) Babita v. Nihaldei- 2017 (2) WLC (Raj.) 275.

4. Per contra, learned counsel for the respondent submitted that Rule 89 of the Rules of 1994 empowers the District Judge to transfer an election petition to any other Judge within his jurisdiction which also includes an Additional District Judge. Elaborating his submissions, he submitted that since proviso to Section 43 of the Act does not employ the word "only" and hence, the District Judge can transfer the election petition to the Additional District Judge also. He submitted that in none of the cases relied upon by the petitioner, the provisions of Rule 89 were taken into consideration and hence the judgements are per incuriam. Learned counsel submitted that in any case, Section 10 of the Rajasthan Civil Courts Ordinance, 1950 provides that an Additional District Judge is authorised to discharge any of the functions of a District Judge which the District Judge may assign to him and it further provides that in discharge of its functions, he shall exercise the same powers as the District Judge and in view thereof, it does not lie in the mouth of the petitioner to say that the judgement dated 25.8.2021 is without jurisdiction. Learned counsel further submitted that even assuming that the learned Additional District Judge did not have jurisdiction to hear and decide the election petition, the judgement passed by him would be saved by the doctrine of de-facto. He, therefore, prays for dismissal of the writ petition. He, in support of his submissions, relied upon following judgements:

1. Lajpat v. District Judge Ajmer & Ors., S.B. Civil Writ Petition No. 18261/2011, dated 23.7.2012.

2. Sheojilal v. District Judge Bundi & Ors. (2008) 6 WLC 174.

3. Pushpadevi M. Jatia v. M.L. Wadhawan (1987) 3 SCC 367.

4. Beopar Shayak (P) Ltd. v. Vishwa Nath, (1987) 3 SCC 693.

5. Gokaraju Rangaraju v. State of A.P. (1987) 3 SCC 132.

6. Smt. Pushpa Devi v. Radhey Shyam, AIR 1972 Raj. 260.

7. Sarojini Devi v. Gulab Chand, 1990 (2) RLR 411.

8. Central Talkies Ltd. Kanpur v.