BABU RAM Vs. PERAGI

JUDGEMENT

(1.) This is a petition for a writ of certiorary under Article 226/227 of the Constitution of India for the quashing of an order dismissing an election petition instituted by the petitioner Babu Ram, challenging the election of opposite party No. 1 to the office of Pradhan Gaon Sabha Ra-soora, District Sitapur.,

(2.) It appears that out of two rival candidates, namely the petitioner and opposite party No. 1, opposite party No. 1 succeeded in getting a majority of votes and was declared elected. An election petition was then instituted by the present petitioner for the setting aside of the election of opposite party No. 1. This election petition was presented to the Sub-Divisional Officer, Sitapur but was transferred to Sri Harish Chandra, Judicial Officer and Additional Sub-Divisional Officer, Sitapur. The question as to whether a Sub-Divisional Officer, who was competent to entertain an election petition arising out of an election of Pradhan to a Gaon Sabha within his jurisdiction, had a right to transfer the same to another Assistant Collector of the First Class designated as Additional Sub-Divisional Officer by some order of the Collector and if such an authority had a jurisdiction to decide it has already been decided in the negative by a Full Bench of this Court in Kedar Nath v. S. N. Misra, 1957 All LJ 379: ((S) AIR 1957 All 484) (A). It is, therefore, clear that opposite party No. 2 had no jurisdiction to decide the election petition.

(3.) Another point, which has been raised on behalf of the opposite parties, is that no question of jurisdiction was raised before the Election Tribunal and as such this Court in the exercise of its writ jurisdiction should not permit the petitioner to raise a plea of want of jurisdiction. Reliance has been placed on Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202 (B), as also on another case of this Court in Basant Singh v. Janak Singh, AIR 1954 All 447 (C). In both of these cases it has been observed that if a plea of jurisdiction has not been taken up before the original tribunal, a plea of want of jurisdiction should not be allowed to be raised in a petition for a writ of certiorari. No doubt the power exercised by this Court in issuing writs is discretionary and if a person has omitted to challenge jurisdiction in an inferior tribunal, he should not be heard on that point in a writ petition. In some later cases, however, a distinction has been drawn between cases, in which the Court was not wholly incompetent to entertain a matter but was debarred from entertaining it on account of territorial or some other similar want of jurisdiction, and cases in which the objection went to the root of jurisdiction in which event the Court was competent to quash the orders in spite of the fact that a plea of jurisdiction was not raised at the earliest opportunity or before the Tribunal. In the Full Bench case of this court, Bhagirathi v. The State, 1955 All LJ 6: ( (S) AIR 1955 All 113) (D), Malik C. J. observed.