- (1.) THIS is a stay application in Special Appeal No. 28 of 1965 under sec. 18 (1) of the Rajasthan High Court Ordinance, 1949.
(2.) THE facts giving rise to it are that the last election of the Nagaur Municipal Board took place on 30-12-63 and the result thereof was announced on 31-12-63. THE petitioner Mohd. Umar was declared elected from Ward No. 2. One Mohd. Sattar had also filed nomination from the said ward, but it was rejected. THE respondent! Ahmed in his capacity of a voter from the said ward presented an election petition before the Civil Judge,, Nagaur. THE Civil Judge dismissed the election petition. Aggrieved by the said order of the learned Civil Judge, the respondent preferred an appeal to this Court and it was heard and decided by a learned single Judge on 4th August, 1965. THE learned Judge allowed the appeal and held that the nomination paper of Mohd. Sattar was improperly rejected, was correct. At the same time, it was observed by him that in view of this finding the election petition ought to have been allowed, because the intention of the legislature was that the election should be declared void if it is proved that the nomination paper has been improperly rejected. He accordingly set aside the election of the petitioner. It lis against this order that the present special appeal is directed. It is urged by the petitioner that during the pendency of the appeal, the operation of the said order should be stayed. In reply, it is contended by learned counsel for the respondent that the question of passing any stay order does not arise because the appeal itself is not maintainable in view of the provisions of sec. 48 of the Rajasthan Municipalities Act, 1959. The first question for determination therefore, is whether in an appeal decided by a learned single Judge of the High Court under sec. 46 of the Rajasthan Municipalities Act, 1959, another appeal would lie to a Division Bench of this Court. It is contended by learned counsel for the appellant that the objection raised by the respondent's learned counsel is not tenable, because, according to sec. 18 of the Rajasthan High Court Ordinance No. XV of 1949, an appeal from the judgment of a learned single Judge of this Court does lie except in cases mentioned therein. It is pointed out that the present appeal does lie under the section and, therefore, it is maintainable. Sec. 18 of the Rajasthan High Court Ordinance, on which reliance is placed, runs as follows - Sec. 18 - Appeal to the High Court from Judges of the Court - (1) An appeal shall lie to the High Court, from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under sec. 43 or in the exercise of criminal jurisdiction of one Judge of the High Court. (2) Notwithstanding anything herein before provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdic tion in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal. " From a bare perusal of the said section, it would appear that an appeal does lie to the High Court from the judgment of one Judge of this Court except (1) when the judgment is one which is passed by the single Judge in exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, or (2) when he passes an order in exercise of the revisional jurisdiction, or (3) when the order or sentence is made or passed in exercise of the power of superintendence under sec. 43 or in the exercise of Criminal jurisdiction. The present appeal does not come within any of these exceptions. In reply, it is urged by the respondent's learned counsel that although an appeal from the judgment of the learned single Judge lies to a Division Bench of this Court under the above section, the provision of sec. 48 of the Rajasthan Municipalities Act, 1959 is a special provision and when that section specifically bars another appeal in this very Court, the provisions of sec. 18 of the Rajasthan High Court Ordinance cannot be attracted. Sec. 48 of the Rajasthan Municipalities Act, 1959, relied upon by the respondent's learned counsel, runs as follows - Sec. 48 - Finality of the orders and decisions - The decision of the High Court on an appeal under sec. 46, and subject only to such decision, the order of the Judge under sec. 44 shall be final and conclusive. " It is contended that under sec. 44 of the Rajasthan Municipalities Act, the Judge of the Election Tribunal has to give his decision and if an appeal is not filed against that decision, it is final and conclusive according to sec. 48 of the Municipalities Act. Similarly, if an appeal is filed against the judgment of the Election Tribunal and it is decided by a single Judge of the High Court under sec. 46, his judgment is final and conclusive and no further appeal would lie by virtue of the provisions of sec. 48 of the Rajasthan Municipalities Act. It is obvious from the argument advanced by the respondent's learned counsel that he has laid stress on the words "shall be final and conclusive" appearing in sec. 48 of the Municipalities Act. Now, if the appeal against the Election Tribunal filed under sec. 46 of Municipalities Act is heard by a Division Bench, no appeal from its decision would lie. The difficulty arises only when the appeal is decided by a learned single Judge of the High Court under sec. 46 of the Municipalities Act. In that situation, there would be an apparent conflict between sec. 18 of the Rajasthan High Court Ordinance, 1949 and sec. 48 of the Rajasthan Municipalities Act, 1959. If the argument of the appellant's learned counsel is accepted, then sec. 18 of the Rajasthan High Court Ordinance would govern sec. 48 of the Rajasthan Municipalities Act, while if the respondent's argument is allowed, sec. 48 of the Municipalities Act would over-ride sec. 18 of the Rajasthan High Court Ordinance. There is thus conflict between the two. Since the point is not free from difficulty, we have given our anxious consideration to it. It may be observed that in cases where sec. 18 of the Rajasthan High Court Ordinance is not attracted, the judgment of this Court is final and conclusive, because this is the highest Court in the State. We have, therefore, to consider if there was anything in the mind of the legislature when it stressed in sec. 48 of the Municipalities Act that the decision of the High Court on an appeal under sec. 46 shall be final and conclusive. It appears to us that these words were knowingly introduced in this section in order to provide that only one appeal would be heard at the stage of the High Court and the decision in that appeal will be final and conclusive and no further appeal would lie. This Act was enacted in 1959 while the Rajasthan High Court Ordinance of 1949 came into force a decade earlier. Although sec. 18 of the Ordinance is not specifically referred in sec. 48 of the Rajasthan Municipalities Act, we are inclined to think that when the legislature in its wisdom, deliberately put in the words "final and conclusive", it meant to avoid a further appeal if it could lie under sec. 18 of the Ordinance. In Temple of Shri Bankteshwar Balaji vs. The Collector, Ajmer (l), a similar question arose before another Division Bench of this Court. In that case, an appeal against an order of the Compensation Commissioner in a matter arising under the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955, was heard by a learned single Judge of this Court. An appeal against his decision was filed under sec. 18 of the Rajasthan High Court Ordinance, 1949. A preliminary objection was raised on behalf of the respondent to the effect that the appeal was not competent. Reliance was placed on sec. 66, sub-sec. (3) of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955, which ran as follows: - "sec. 66 (3) - The State Government or any person aggrieved by an order of the Compensation Commissioner under this Act may within ninety days from the date of communication of such order appeal to the Judicial Commissioner, Ajmer, whose decision thereon shall be final. " After the merger of the State of Ajmer with the State of Rajasthan under the States Reorganisation Act, 1956, it was provided that the expression 'judicial Commissioner' in the provision quoted above would be read as the High Court of Rajasthan. It was on account of this change that the appeal was heard by a learned single Judge of this Court. It is noteworthy that the words "whose decision thereon shall be final" appearing in sec. 66 (3), noted above, are similar to the words "shall be final and conclusive" appearing in sec. 48 of the Rajasthan Municipalities Act. Relying on the decision of their lordships of the Supreme Court in the Union of India vs. The Mohindra Supply Co. (2), it was held by this Court that the litigant who has exercised his right of appeal in the High Court in accordance with sec. 66 (3) of the Ajmer Abolition of Intermediaries and Land Reforms, Act, 1955, could not lay any claim to a further right of appeal by virtue of any general provision contained in the Ordinance because of the special provision enacted in sec. 66 (3 ). In our opinion, the observations made by the learned Judges of this Court in the said case apply with equal force to the present case. Learned counsel for the petitioner has not been able to advance any argument which might persuade us to take a different View and refer the matter to a larger bench. We are, therefore, of opinion that the objection raised by the respondent's learned counsel is correct and the present appeal is not maintainable. In the result, since the appeal itself does not lie, the question of passing stay order does not arise. The stay application is, therefore, rejected. . ;