- (1.) The present appeal arises from the order dated 28.04.2016 dismissing S.B. Civil Writ Petition No.1494/2016. The Learned Single Judge declined interference with order dated 10.09.2015 of the District and Sessions Judge, Bikaner transferring Election Petition No.074/2015 to the court of Additional District and Sessions Judge, No.2 Bikaner as also the order dated 18.01.2016 passed by the Additional District and Sessions Judge, No.2, Bikaner in renumbered Election Petition No. 99/2015 rejecting the Appellants petition that the latter did not have the jurisdiction to hear the matter under Section 31 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act').
(2.) Learned Counsel for the Appellant submitted that Section 31 of the Act provides that the election of any person as a Member of a municipality may be questioned by an election petition before the District Judge having territorial jurisdiction over the municipal area in question. An appeal lies from the order of the District Judge to this Court under Section 32 of the Act. From amongst the persons elected as a Member, the Chairperson or the Vice-Chairperson is elected in the prescribed manner. The election of a Chairperson or Vice-Chairperson can be challenged under Section 44 of the Act before the District Judge having territorial jurisdiction over the municipal area also by way of an election petition. But, the proviso vests power in the District Judge, for reasons to be recorded in writing to transfer the same for hearing and disposal to a Judge subordinate to him. The absence of any proviso to Section 31 of the Act makes it apparent that the Legislature intended that any challenge to the election of a Member from a municipal area was to be laid out and heard by the District Judge alone. Otherwise, there was no reason why the proviso could not have been retained in Section 31 of the Act also. A person whose election as a Chairperson or Vice-Chairperson is set aside, will still remain a Member but a person who loses his membership in an election petition will automatically lose his status as a Chairperson or Vice-Chairperson. The consequences of being unseated from the post of Member is therefore far more serious and thus the Legislature thought it proper to confer this power on the District Judge alone.
(3.) The order dated 10.09.2015 of the District Judge transferring the election petition in exercise of powers under Section 10 of the Rajasthan Civil Courts Ordinance, 1950 (hereinafter called 'the Ordinance') is contrary to Article 243(Z)(A) and which will prevail over the Ordinance as the Act has been framed pursuant to the former.;