A decree passed by a court without jurisdiction is a nullity, and proceedings before a court lacking inherent jurisdiction cannot be saved by the de facto doctrine.

JUDGMENT

Mahendra Kumar Goyal, J. - 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.

2. 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.

3. 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. v. M/s. Modern Construction & Co.- (2014) 1 SCC 648;

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

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

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

4. 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 v. District Judge, Chittorgarh & Ors.- 2018(1) RLW 225 (Raj.);

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

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

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

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

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

5. Heard. Considered.

6. 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 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.

7. 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. v. Chaman Paswan & Ors.- AIR 1954 SC 340, held as under:

"It is fundamental principle that a decree passe