Prem Raj vs Bhanwar Lal and Others

R.R Yadav, J.—The Instant Misc. Appeal has been filed against the judgment dated 24.5.95 passed by the learned District Judge, Jalore Camp at Bhlnmal holding that the learned Civil Judge Senior Division where Municipal Board is situated, has jurisdiction to entertain the Election Petition, therefore, he directed to return the Election Petition for its presentation before the said Court.

In support of his aforesaid conclusion, he has placed reliance on a decision rendered by a learned Single Judge of this Court in the case of Lala Maharaj Vs. Ram Charan and Others,

I have heard learned counsel for the appellant. Mr. M.S. Singhvi as well as learned counsel Mr. Shambhoo Rathore appearing on behalf of respondent No. 1.

Main thrust of argument of learned counsel for the appellant Mr. M.S. Singhvi before me is that Section 40 of the Rajasthan Municipalities Act, 1959 hereinafter referred to as ''the Act No. 38 of 1959 deals with presentation of the Election Petition relating to Municipalities In the State, Which has now been drastically amended. According to the learned counsel for the appellant, learned District Judge failed to notice substituted Section 40 of Act No. 38 of 1959, which has resulted into" miscarriage of justice in the present case. Section 40 of the Principal Act has been drastically amended and substituted as follows�

Section 40. Who shall hear Petition

(1) An Election Petition may be presented to and shall be heard by the District Judge having jurisdiction over the area in which the Municipal Office is situated:

Provided that where an election petition is presented as aforesaid to a District Judge, he may for reasons, to be recorded in writing transfer the same for hearing and disposal to an Additional District Judge Sub-ordinate to him.

(2) The District Judge or Additional District Judge by whom it is heard in accordance with the provisions of Sub-section (1) is hereinafter referred to as the Judge.

The aforesaid amendment was published in the Rajasthan Gazette, Extra-ordinary Part 4 (Ka) dated 2.5.1994 at page 249. According to the said amendment, which is called Rajasthan Municipalities (Second Amendment) Act, 1994 (hereinafter referred to as ''the Act No. 19 of 1994") was required to come into force on such date as appointed by the State Government by notification. According to the notification dated 26.5.94, the State Government has appointed 28.5.94 from which date Act No. 19 of 1994 has been made effective.

From the aforesaid narration of facts, it becomes crystal clear that Section 40 of the Principal Act No. 38 of 1959 has now been drastically amended and substituted as quoted above. Now, under the Amended Section, the presentation of election petitions relating to Municipalities in a District are entertain able and required to be heard and disposed off by a District Judge having jurisdiction over the area in which Municipal office is situated. However, under the proviso, it is provided that District Judge may for reasons to be recorded in writing transfer the same for hearing and disposal to an Additional District Judge sub-ordinate to him.

In view of the amended Section 40 of Act No. 38 of 1959, the order impugned passed by the learned District Judge is per se illegal and wihtout jurisdiction and as such it is liable to be set aside. It is also held that in view of the amended Section 40 of Act No. 38 of 1959, the decision rendered by this Court in the case of Lala Maharqj (supra) also does not hold water.

As a result of the aforesaid discussion, the instant Misc Appeal is allowed and the order impugned dated 24.5.95 is set aside. The case is remanded back to the learned District Judge, Jalore with a direction to entertain and dispose it off in accordance with law either himself or after recording reasons in writing transfer it for hearing and disposal to an Additional District Judge sub-ordinate to him. Costs easy.

Both the parties are present before the Court, therefore, it would be expedient to direct them to appear before the learned District Judge, Jalore on 2.3.1996.