K.D.SHARMA, C.J. - (1.) THIS is a writ petition filed by Rameshwar under Articles 226 and 227 of the Constitution of India for issuance of a writ, direction or order in the nature of certiorari or mandamus or in any other appropriate form for quashing the impugned judgment of the Munsiff and Judicial Magistrate. First Class, Nokha, District Bikaner, by which the election of the returned candidate, i.e the petitioner to the office of Panch from Ward No. 4 of Gram Panchayat Kuchore Athuni was declared void and set aside with immediate effect and Ramchandra non -petitioner No. 2 was declared elected to that office from the same ward.
(2.) THE relevant facts giving rise to this writ petition may be briefly stated as follows: The petitioner contested the election to the office of Panch of Gram Panchayat Kuchore Athuni, which was held on February 5,1978. The petitioner secured 114 valid votes while Ramchandra, non -petitioner No. 2, who also contested the election to the same office, got 113 votes only Consequently, the petitioner was declared elected to the office of Panch of the said Gram Panchayat. The non -petitioner No. 2, thereafter, presented an election petition before the Munsiff and Judicial Magistrate. Nokha, challenging the petitioner's election. The election petition was heard and decided by the non -petitioner No. 1 on January 5, 1981, and election of the petitioner was declared to be void and the non -petitioner No. 2 was declared to have been duly elected as Panch, Gram Panchayat, Kuchore Athuni. Aggrieved by the decision of the non -petitioner No. 1, the petitioner has invoked extraordinary jurisdiction of this Court by way of this writ petition on the following grounds: (a) the non -petitioner No. 1 had no jurisdiction to hear and decide the election petition because the election petition was submitted before the Munsiff, Bikaner, who had jurisdiction, to decide it under Rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, hereinafter referred to as the Rules. Consequently, the decision given by non -petitioner No. 1, being without jurisdiction, is liable to be quashed; (b) the non -petitioner No. 2 committed an error apparent on the face of the record in recounting the votes without there being any justification for such an action, especially when he himself was of the view that there was no need for recounting of votes; (c) the non -petitioner No. 1 acted arbitrarily in calling for the ballot papers during examination -in -chief of the non -petitioner No. 2 and in passing the impugned decision without affording any opportunity to the petitioner, to cross -examine the non -petitioner No. 2 and to produce his evidence in rebuttal. (d) aggrieved by the arbitrary action taken by the non -petitioner No. 2 the petitioner filed a transfer application under Rule 86 -A of the Rules before the District Judge, Bikaner, on or about December 8, 1980, in which a date i.e. January 21, 1981, was fixed for hearing. Because of transfer application, the petitioner did not take part in the arguments heard by non -petitioner No. I on December 23, 1980 and apprised him of the presentation of the transfer application before the District Judge, Bikaner, but the non -petitioner No. 1 gave his decision and quashed the election of the petitioner and wrongly mentioned in his decision that the petitioner admitted certain facts; (e) the non -petitioner No. 1 committed an error apparent on the face of the record in wrongly rejecting the valid votes of the petitioner on flimsy grounds while ignoring the fact that order for recounting of votes can only be passed on existence of certain circumstances which were not present in the instant case. The writ petition was admitted by this Court on January 8, 1981 and notices were issued to the non petitioners Nos. 1 and 2. On behalf of the ton -petitioner No. 2 a written reply was filed to the writ petition wherein it was alleged that the non -petitioner No 1 had jurisdiction to hear and decide the election petition which was presented before the Munsiff Magistrate, Bikaner, because a new court was established at Nokha to hear and decide cases arising in the territorial jurisdiction of Tehsil Nokha. Upon creation of anew court of the Munsiff and Judicial Magistrate, Nokha, the learned District Judge, Bikaner, withdrew the election petition pending in the court of the Munsiff and Judicial Magistrate Bikaner and transferred the same for hearing and decision to the court of the Munsiff and Judicial Magistrate, Nokha and so it cannot be safely contended that the impugned decision given by the non -petitioner No. 1 was without jurisdiction. It was further urged that the petitioner, himself expressed his unwillingness to produce any evidence on November 11, 1980 and so the election petition was fixed for arguments on November 17, 1980, as is evident from a bare perusal of the order sheet dated November 11, 1980. As for the recounting of votes, it was stated in the written reply that the learned Counsel for the parties agreed for inspection of the ballot papers and so the ballot papers were summoned by non -petitioner No. 1 and on receipt of the same the non -petitioner No. 1 inspected them in the presence of the learned Counsel for the parties on November 11, 1980 and prepared an inspection note which was signed by the counsel for the parties. It was further submitted in the reply that neither the petitioner, nor his counsel Shri Panna Lai Advocate raised any objection to the inspection of the ballot papers by the court as the inspection was done in pursuance of an agreement of both the parties. It was also alleged in the Written reply that the petitioner presented a transfer application before the District Judge, Bikaner, for the purpose of delaying the decision of the election petition and so the learned Counsel for the petitioner wilfully remained absent at the time of arguments. Lastly, it was urged in the wjitten reply that the non -petitioner No. 1 critically examined and inspected the ballot papers and arrived at a correct conclusion. Nobody appeared on behalf of the non -petitioner No. 1
(3.) I have carefully perused the record and heard Mr. Kewal Chand, learned Counsel for the petitioner, and Mr. R.N Bishnoi appearing on behalf of the non -petitioner No. 2. Firstly, it was contended on behalf of the petitioner that the Munsiff and Judicial Magistrate, Nokha, had no jurisdiction to hear and decide the election petition because initially the election petition was presented before the Mursiff, Bikaner, who alone, being a persona designate, had jurisdiction to hear the election petition filed against the petitioner. The above contention has no force, because all that Rule 78 of the Rules lays down is that the election of any person as Panch of the Panchayat maybe called in question by presenting a petition to the Munsiff or, where there is no Munsiff, to the Civil Judge within whose jurisdiction the headquarters of the Panchayat is situated. In the instant case, the election petition was no doubt presented before the Munsiff, Bikaner, who proceeded to hear it, but by an order of the District Judge, Bikaner, dated February 12, 1980, the election petition was transferred for trial to the court of the Munsiff Nokha. The District Judge passed an order of transfer because of creation of a new court of the Munsiff and Magistrate at Nokha within whose jurisdiction the headquarters of the Gram Panchayat, Kuchcre Athuni, are situated. After the creation of the new court of the Munsiff and Judicial Magistrate, Nokha, the election petition was rightly withdrawn from the court of the Munsiff, Bikaner, and transferred to the court of the Munsiff Magistrate, Nokha, because under Rule 78 of the Rules, the Munsiff, within whose jurisdiction the headquarters of the Panchayat are situated, has jurisdiction to hear and decide the election petition It is not disputed before me that the head quarters of Gram Patchayat, Kuchore Athuni lay within the jurisdiction of the newly created court of the Munsiff, Nokha. Consequently, I am unable to hold that the Munsiff, Nokha, had no jurisdiction to hear and decide the election petition.;