DAVE, Actg. C. J - (1.) THE two appeals noted above are directed against two different orders of a learned single Judge of this Court dated August 31, 1962 and Sept. 18, 1962, respectively, passed in two different writ applications under Art. 226 of the Constitution of India, but since common questions of law are involved in both of them they are disposed of together.
(2.) BEFORE dealing with the questions of law we think it proper to narrate, in brief, the facts of both the cases. In Appeal No. 20, the general election of the Bichpuri (Gujran) Panchayat, tehsil Khandar, district Sawai Madhopur, was held on December 18, 1960. The petitioner Keshavdev contested the election of Sarpanch against Radhey Shyam respondent No. l. The petitioner was elected declared having scored a larger number of votes as against his opponent. Respondent No. 1 thereafter filed an election petition under R. 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, which will hereinafter be referred as the Rules, before a Tribunal viz, Munsif Sawai Madhopur. The hearing of the said petition proceeded before the Tribunal for a long time. Both the parties concluded their evidence and only arguments remained to be heard. On the 4th of January, 1962, however, the Munsiff submitted the record to the District Judge, Bharatpur, for transferring the case to some other tribunal on the ground that certain facts had come to his personal knowledge and so he "felt himself handicapped in deciding the case". On January 9, 1962, the learned District Judge, Bharatpur, heard the parties and transferred the case to the court of Munsif, Gangapur. The parties were directed to appear before the transferee court on February 5, 1962. It may be noted here that the petitioner did not raise any objection about the transfer of the case, before the District Judge. When the election petition came up for hearing before the Munsif, Gangapur, the petitioner presented an application on April 7, 1962, challenging the jurisdiction of that Tribunal to entertain and hear the application. This objection was turned down on the same day with the observation that the case was transferred to the Tribunal by the District Judge and that if the petitioner felt aggrieved, he was free to move the High Court. Eventually, the Tribunal decided the case on August 7, 1962, against the petitioner. In other words, the election petition was allowed and respondent No. 1 Radhey Shyam was declared elected. Aggrieved by this order dated August 7, 1962, the petitioner filed a writ petition which came for hearing before a learned single Judge of this Court on 31. 8. 1962. It was urged on behalf of the petitioner before the learned Judge that the Munsif, Gangapur, had no jurisdiction to hear and decide the election petition because the place of headquarters of the Panchayat or the Nyaya Panchayat was not situated within his jurisdiction. This contention was repelled with the observation that if the petitioner thought that Munsif, Gangapur, had no jurisdiction to try the case he ought to have filed a writ petition in the case. It was further observed that the decision of the Tribunal having gone against the petitioner, the learned Judge was not willing to entertain the writ application especially when it was also found that the election petition was rightly allowed on merits. In appeal No. 23, the election for the office of the Sarpanch of Panchayat, Salada, was held on December 6, 1960. The petitioner Roop Singh and the respondents Nos. 2 and 3 Fakir Mohammed and Bhim Singh contested the said election and the petitioner was declared elected to the office. Thereafter, the respondent No. 2 Fakir Mohammed filed an election petition under rule 78 of the Rules in the court of Munsif Saloombar. After the bulk of evidence was recorded, the respondent N. 2 presented an application under sec. 24 C. P. C. in the court of the District Judge, Udaipur, requesting it to transfer the case from the Tribunal of Munsif Saloombar. The petitioner contested the transfer application but the learned District Judge ordered the case to be transferred to the court of the Additional Civil Judge, Udaipur. The Additional Civil Judge then tried the election petition and declared the petitioner's election as void. In this case also, the petitioner filed a writ petition under Art. 226 of the Constitution of India and it was heard by the same learned Judge of this Court who heard the case out of which appeal No. 20 has arisen. It was urged before the learned Judge on behalf of the petitioner that the District Judge had no jurisdiction to transfer an election petition under sec. 24 C. P. C. It was observed by the learned Judge that the order of the District Judge was "no doubt void" but the petitioner did not file a writ petition for obtaining a direction restraining the Additional Civil Judge from trying the petition and that the petitioner had raised this objection only when the decision went against him. It was further observed that on merits the decision of the Tribunal was correct and therefore the learned Judge declined to interfere in the matter. It is against this order dated September 18, 1962, that the present appeal is directed. It would appear from the above narration that the facts of both the cases are very similar and the main question for determination which arises in the appeals is whether the District Judge had any jurisdiction to transfer the election petition pending before one Munsif to another Munsif or Civil Judge. It is contended on behalf of the appellants that according to rule 78 the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyaya Panchayat may be called in question by presenting a petition to the Munsif within whose jurisdiction the place of Headquarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated. It is further pointed out that such a petition may be presented to the Civil Judge if there is no Munsif within whose jurisdiction such an application may be presented, but not otherwise. Learned counsel has proceeded to argue that the Munsif or Civil Judge under this rale is a persona designate and that he has to decide the election petition as a Tribunal and not as the Presiding Officer of a regular civil court subordinate to the District Judge. It is further urged that neither the Act nor the Rules provide any appeal against the decision of a Munsif or the Civil Judge to the court of the District Judge. The District Judge has therefore no jurisdiction to exercise his powers under sec. 24 of the Civil Procedure Code. The Munsif and the Additional Civil Judge to whom the cases were transferred had no territorial jurisdiction over the places of headquarters of the Panchayat and therefore their decisions were wholly void on account of the lack of jurisdiction. It is contended that the decisions of the Munsif, Gangapur and the Additional Civil Judge, Udaipur, being void, it was incumbent upon the learned Judge to exercise jurisdiction under Art. 226 of the Constitution of India and set aside their decisions and remand the cases to the proper courts for trial. It is further argued that when the original election petitions were not decided by proper Tribunals, the learned Judge ought not to have gone into the merits of the case and, expressed any opinion thereon. It is also urged that the learned Judge was not correct in dismissing the writ applications simply because the petitioners did not approach this Court for a writ of prohibition at an earlier stage. It is also pointed out that in Iqramuddin Vs. Baksh Singh (S. B. Civil Miscellaneous Writ Application No. 163 of 1962) an application for a writ of prohibition was presented soon after the learned District Judge, Bharatpur, had ordered the election petition to be transferred from the Tribunal of Munsif, Sawai Madhopur, to Munsif, Gangapur, and that application was dismissed on April 11, 1962, by the learned Judge with the observation that it was open to the petitioner to file a writ application against the decision of the Tribunal and take ground therein. In reply, it is urged that a glance at rules 83, 84 and 85 would show that the Munsif or Civil Judge hearing an election petition is civil court subordinate to the District Judge and not a persona designate and therefore the District Judges were well within their jurisdiction when they transferred the election petitions from one Munsif to another Munsif or Additional Civil Judge. We have given due consideration to these arguments and in order to decide the question set out above it would be necessary to first decide "whether the Munsif or the Civil Judge hearing the election petition functions as a persona designata or as a civil court". It may be pointed out that rule 83 no doubt lays down that the procedure provided in the Code of Civil Procedure, 1908, (Central Act V of 1908), in regard to suits, shall, in so far as it can be made applicable, be followed in the hearing of the petition, but this does not mean that the Civil Procedure Code would apply to election petitions even with regard to appeals. In our opinion, a plain meaning of this rule only shows that the Munsif or the Civil Judge while trying the election petition should follow the provisions of the Code of Civil Procedure in the same way as that procedure is followed in regard to suits but this procedure is to be followed only in so far as it can be made applicable and that too only in the hearing of the petition. There is nothing in this rule to indicate that the Munsif, at the time of hearing the election petition, functions as an ordinary court of civil jurisdiction subordinate to the District Judge or that an appeal would lie to the District Judge a matter of course. It need hardly be stressed that an appeal is a creature of statute and unless such a right is specifically provided by the law, it cannot be inferred. The Munsif while hearing the election petition may have all the trappings of a court but he cannot be deemed to function as an ordinary civil court. Our attention has been drawn to the fact that in the heading of rules 84 and 85 the term "court" is used and that this indicates that the election tribunal is a civil court. This argument is also not tenable because the term "court" as used in the heading is meant only to show that while hearing the election petition the Munsif or civil Judge functions as a judicial tribunal and it is only in that sense that this word seems to have been used. It is pertinent to note that in R. 85 it is provided that the Munsif or [the Civil Judge, as the case may be, hearing a petition shall have the same powers and privileges as a Judge of a civil court when trying a suit. This leaves no room for any doubt that the Munsif or the Civil Judge is not made identical with the civil court), otherwise it would have been necessary to provide that they would have the same powers and privileges as a civil court. In Keshri Prasad Vs. Bodhraj (1) the question arose whether a District Judge hearing an election petition u/sec. 22 (1) of the U. P. Municipalities Act was a civil court subordinate to the High Court within the meaning of sec. 115 Civil Procedure Code. It was held, relying on Masoon Ali Khan Vs. Ali Ahmad Khan (2), Keshav Ramchandra Vs. Municipal Borough, Jalgaon and others (3) and Municipality of Sholapur Vs. Tuljaram Krishnasa Chaven (4) that the District Judge hearing an election petition was not a civil court but a persona designata and that he was not amenable to the jurisdiction of the High Court under sec. 115 C. P. C. The same view has been taken by the learned Judges of the Madras High Court in A. Narasimha Ayyangar Vs. K. Ramayya Chettier (5 ). In Kedar Nath Vs. S. N. Misra (6), it was held by a full bench that the Sub-Divisional Officer hearing an election petition under the U. P. Panchayat Raj Act was a special Tribunal and was therefore a persona designata. It would be unnecessary for us to repeat the arguments given in the said cases. It would suffice to say that we respectfully agree and see no reason to depart from the view which this Court has already taken in Keshri Prasad's case (supra ). Since we have come to the conclusion that the Munsif or Civil Judge hearing the election petition under rule 78 is a persona designata, it follows as necessary corollary that the District Judge had no jurisdiction to transfer the election petition from one Munsif to another Munsif or from one Munsif to another Civil Judge. Before we part with the case we may advert to one argument which has been raised by learned counsel for the non-petitioners. It is urged by them that the petitioners had submitted to the jurisdiction of the transferee court and after having taken a chance of a decision in their favour it was no longer open to them to invoke the extraordinary jurisdiction of this Court in order to get the decision of the Tribunal set aside. It seems from the orders of the learned Judge in appeal that this argument proceeded on the observations made by him. We have given our careful consideration to this argument and we think that it is not tenable. It may be pointed out that in Kiransingh Vs. Chaman Paswan (7) it was observed by their Lordships of the S. C. that "it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. r These observations in our opinion equally apply to the Tribunals created by statute and if a certain Tribunal has no jurisdiction to hear and decide a certain matter no amount of consent by the parties can confer jurisdiction upon it. The same view has been taken by this Court earlier in Dholpur Co-operative Transport and Multi-purposes Union Ltd. Vs. The Appellate Authority, Rajas-than (8) and Badridass Kanhaiyala Vs. The Appellate Tribunal of the State Transport Authority, (Rajasthan) (9 ). Thus where it is found by this Court that if a lower court or a tribunal has given a decision which amounts to a nullity on account of inherent or patent lack of jurisdiction, then it becomes its duty to quash it by the grant of a writ of certiorari notwithstanding the fact that the petitioner failed to question the jurisdiction of the lower court or the tribunal at an earlier stage and challenged that jurisdiction before the High Court for the first time. In our opinion the learned Judge ought not to have declined to interfere in the matter when he himself came to the conclusion that the order passed by the learned District Judge about the transfer of the election petitions was void. When it was found that the decisions were not given by the proper Tribunal, the Court ought not to have gone into the merits of the case because it was for the appropriatetri-bunal to first weigh the evidence of the parties and then to decide the case on merits. 10. We therefore allow both the appeals and set aside the impugned orders of the learned single Judge. The proceedings taken by the transferee courts are also quashed. We further direct that Election Petition No. 2 of 1962 should be sent back to the Munsif, Sawai Madhopur and Election Petition No. 2 of 1961 should be sent back to Munsif, Saloomber, and they should try and decide the cases afresh according to law. The petitioners will receive their costs from the non-petitioners in this Court. . ;