JAGAT NARAYAN, J. - (1.) THIS is a revision application by Girdhari Lal defendant against an order of temporary injunction passed by the Munsiff, Bikaner, in a suit brought by Maluram respondent against him.
(2.) GIRDHARILAL, Ram Singh, Maluram and some other persons had filed their nomination papers for election to the office of Zila Pramukh of Bikaner Zila Parishad. The scrutiny of these nomination papers took place on 16th February, 1965 at 3. 15 p. m. All the nomination papers were accepted by the Returning Officer as no objection had been filed against any of them. 17th February, 1965 upto 3 p. m. was the time fixed for withdrawal of nomination papers. All the candidates except Girdhari Lal and Ram Singh withdrew their nomination papers before 3 p. m. on that date. After only two candidates had been left in the field Girdhari Lal filed an objection that Ram Singh was not eligible for election as Pramukh as he was the President of the Central Co-operative Bank, Bikaner. This objection was entertained by the Returning Officer who enquired into it and gave a decision on 20th February 1965 that Ram Singh was ineligible for election. He accordingly declared the remaining candidate Girdhari Lal as duly elected. On 22nd February 1965 the present suit was instituted in the court of Munsif, Bikaner, against Girdhari Lal by Maluram who was also one of the candidates who had withdrawn his candidature on 17. 2. 65 for a declaration that Girdhari Lal is not the duly elected Pramukh of Bikaner Zila Parishad and is not entitled to hold charge of the office and for an injunction to restrain him from taking charge of the office. Along with the plaint an application for grant of a temporary injunction was made. An ex parte ad interim injunction was granted against Girdhari Lal on the same day. The application for injunction was contested on behalf of Girdharilal inter alia on the ground that the suit was not cognizable by the civil court. The learned Munsif however confirmed the temporary injunction on 5. 3. 65 without deciding this question. This order was passed under sec. 151 C P. C. against which no appeal lay. So the present revision application has been filed against it. On behalf of the applicants it is contended in this revision application that the election to the office of Zila Pramukh cannot be challenged by filing a civil suit as the jurisdiction of the civil court is impliedly barred under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter referred to as the Act ). On behalf of Maluram it was argued that a civil suit by him to challenge the election of Zila Pramukh is not barred as there is no provision either in the Act or in the Rules framed thereunder enabling him to challenge the election of Girdhari Lal to the office of Pramukh by filing an election. I have heard the learned counsel for the parties and am of the opinion that the present suit is impliedly barred by the Act within the meaning of sec. 9 of the Code of Civil Procedure. Under the Act as originally enacted in 1959 it was provided u/sec. 45 (1) that the Pramukh shall be elected by members of the Zila Parishad from amongst themselves. Such an election could be challenged by any member of the Zila Parishad by filing an election petition under sec. 13 read with sec. 45 (5 ). The Act was amended in 1964. Under the amended provision of sec. 45 (1) the Pramukh is elected by - (a) the members of the Zila Parishad specified in cls. (i), (ii), (iii), (iv) and (vi-b) of sub-sec. (3) of sec. 42 as amended in 1964. (b) the members of the Panchayat Samiti in the district specified in cls. (i), (ii), (iii-a) and (iv) of sub-sec. (1) of sec. 8, as amended. In other words some persons of the Zila Parishad also take part in electing the Pramukh under the amended Act. Sec. 1 3 was however not amended so as to enable the members of the Panchayat Samiti who take part in the election of the Pramukh to challenge his election by filing an election petition. The question which arises for determination is whether a civil suit to challenge the election of the Pramukh by members of the Panchayat Samiti who are entitled to take part in electing him is impliedly barred by the Act. Now taking the Act as it stood before its amendment in 1964 it is quite clear that the election of the Pramukh could only be challenged by an election petition and not by a civil suit. The right to vote or to stand as a candidate for election to the office of Pramukh is not a common law right. It is a creature of the Act which gives a special remedy for enforcing it. As was observed by their Lordships of the Supreme Court in N. P. Ponnuswami vs. Returning Officer, Namakkal (l) the remedy provided by that statute alone should be availed of and a Civil suit is barred. The wordings of sec. 13, which has been made applicable to the election of a Pramukh by sec. 45 (5) of the Act. , also make it clear that the election of the Pramukh can only be challenged by an election petition. For sub-sec. (2) of that section provides that the decision of the judge trying the election petition shall be final. Under the Act as originally enacted the Pramukh was elected only by members of the Zila Parishad from amongst themselves and these alone could challenge the election by filing an election petition under sec. 13. In other words every elector could challenge the election by filing an election petition. Coming now to the Act as it stands after its amendment, only those electors can file an election petition who are members of the Zila Parishad. The remaining electors who are only members of the Panchayat Samiti but not of the Zila Parishad cannot challenge the election of Pramukh by filing an election petition. I am of the opinion that it was not the intention of the Legislature that they should have a right of, challenging the election of the Pramukh at all. Otherwise sec. 13 would have been suitably amended so as to give them also a right to challenge the election by means of an election petition. They cannot therefore challenge the election of the Pramukh by filing even a civil suit as it was not the intention of the Legislature to permit them to challenge the election of Pramukh at all They have only been given the right to vote at the election of Pramukh. It is not necessary that every elector must have a right to challenge the election. Under the Rajasthan Panchayat Election Rules, 1954 an election petition could only be filed by at least ten electors. A single elector had no right to challenge the election. If an elector who is not a member of the Zila Parishad is permitted to challenge the election of the Pramukh by a civil suit there might be two opposite decisions, one by the civil court and another by the election tribunal on the election petition of an elector who is a member of the Zila Parishad. Both these decisions will be equally final and equally binding - one declaring the election to be valid and another declaring it to be invalid. I am accordingly of the opinion that the election to the office of Pramukh cannot be challenged by a civil suit even by an elector who is not competent to file an election petition, the jurisdiction of the civil court being impliedly barred by the Act. Some decisions were referred to on behalf of the plaintiff. They do not help him.
(3.) IN Firm Radha Kishan vs. Ludhiana Municipality (2) it was held that the liability to pay terminal tax was created by the Punjab Municipal Act, 1911 which gives a remedy to a party aggrieved by the enforcement of the liability and a civil suit. In Maniram vs. Bhagwat Sarup (3) it was the decision of the election Tribunal which was challenged by a civil suit and not the election. In Md Maijaddin Khan vs. Janakiballav Datta (4) it was specifically provided in the Act concerned that the jurisdiction of the civil court was not affected. In Kali Prosad vs. Makutdhari Prosad (5) it was held that the Act concerned did not provide any remedy to challenge an election. I accordingly allow the revision application and set aside the order of temporary injunction granted by the learned Munsif. In the circumstances of the case, I leave the parties to bear their own costs of this revision application. . ;