VASANTBHAI VARDHABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has approached this Court with a prayer that the order passed by the Civil Judge (S.D.), Bharuch on 29 -3 -1982 in Election Petition No. 2 of 1980 produced at annexure 'A' may be quashed. The further prayer is that the order passed by the Collector, Bharuch on 14 -4 -1982 and produced at Annexure 'C' also may be quashed and the ultimate prayer is that either Civil Judge (S.D.), Bharuch or respondent No. 2, the Collector may be directed to decide the petition of the petitioner. It is, therefore, clear that even at this stage the petitioner is not clear as to whether Civil Judge (S.D.) has got jurisdiction to decide this matter or the Collector, Bharuch, respondent No. 2 has jurisdiction to decide this matter. From the factual aspect it appears that the petitioner desires to challenge the election of respondent No. 3 who is elected as Sarpanch of the Gram Panchayat, Vilayat situated in Bharuch District. Now it appears that the petitioner first filed Election Petition in the Court of Civil Judge (S.D.), Bharuch challenging the election of respondent No. 3 as Sarpanch of Vilayat Gram Panchayat. That Election Petition was numbered as Election Petition No. 2 of 1980. The learned Civil Judge, Senior Division framed an issue and that issue was numbered as Issue No. 1A and that issue was as under:

(2.) THE learned Civil Judge (S.D.) came to the conclusion that he had no jurisdiction to decide the matter because of the case of Takhatsing Gulab -sing v. Chandulal Shivlal and Others , reported in 9 GLR at page 987. The learned Civil Judge completely overlooked the fact that thereafter the Act was amended by Gujarat Act No. 9 of 1973, and by that Act Section 12 was substituted and according to the substituted Section, Section, 12(3) stood as under:

(3.) SECTION 44 was also amended and it provided for the election of Upsarpanch only. Section 44 did not provide for the election of Sarpanch. Now, therefore, respondent No. 2, the Collector would have no power under Section 44(6) of the Act and, therefore, the decision rendered by respondent No. 2. the Collector was absolutely right when he came to the conclusion that he had no jurisdiction to decide the matter. The learned Civil Judge, Senior Division when he came to the conclusion that the Collector had jurisdiction under Section 44(6) of the Act that decision was not correct because after the decision of 9 G.L.R. at page 987 (Supra) both Sections 18 and 44 came to be amended by Act No. 8 of 1973, Now, therefore, under Section 24 of the Act the election petition is required to be heard by the Civil Judge, Junior Division and if there is no Civil Judge, Junior Division then by Civil Judge, Senior Division and the Collector respondent No. 2 will have no jurisdiction to hear the matter. This question is now settled by the Division Bench of this Court while deciding L.P.A. Nos. 121 of 1974 and L.P.A. No. 128 of 1974 on 28 -4 -1976 and it is clearly held that under Section 24(1) of the Gujarat Panchayats Act, 1961 Civil Judge (J.D.) will have power to decide the election petition where the election of Sarpach is challenged. It was clearly held while deciding L.P.A. that if there was a dispute relating to an election of Sarpach of a gram panchayat that dispute would fall within the ambit of Section 24 and the learned Civil Judge, Borsad had jurisdiction to entertain election petition regarding the validity of election of the Sarpanch. Under these circumstances the prayer for quashing the order of respondent No. 2, the Collector cannot be granted. However, it is clear that the order of Civil Judge deciding that the Collector had power to decide the election petition under Section 44(6) of the Act is required to be set aside. However, when the Collector decided that he had no jurisdiction he should not have ordered to file the petition but he should have returned the petition for presentation to the proper court. Under these circumstances respondent No. 2 is directed to return the election petition to the petitioner for presentation to the proper court and the proper court would be the Court of the Civil Judge (J.D.) Bharuch. Rule is made absolute to the above extent with no order as to costs.