BABITA, W/O PREMCHAND, AGED ABOUT 32 YEARS, ADDRESS: VILL. MASARI, THE. KATHUMAR, DISTT. ALWAR Vs. NIHALDEI, W/O RAJARAM, AGED ABOUT 37 YEARS, ADDRESS: VILL. MASARI, THE. KATHUMAR, DISTT. ALWAR

JUDGEMENT

(1.) - On 25/11/2016, the case was listed for admission. On that day, counsel for the respondent objected to the maintainability of this petition under Article 227 of the Constitution of India. Therefore, before proceeding further in the matter, arguments of learned counsel for both the parties were heard on maintainability of this petition.

(2.) Before dealing with the question of maintainability of the petition, we think it proper to narrate the facts of the case in brief. The general election of Gram Panchayat Masari, Panchayat Samiti Kathumar was held on 18/01/2015. The petitioner contested the election of Sarpanch against Nihaldei-respondent No. 1 and others. The petitioner was declared elected having scored a larger number of votes as against her opponent. Respondent No. 1, thereafter filed an Election Petition under Rule 80 of Rajasthan Panchayati Raj (Election) Rules, 1994 which will hereinafter be referred as the Rules of 1994 , before the Tribunal viz., District Judge, Alwar which was later on transferred to Senior Civil Judge, Laxmangarh, District Alwar under Section 43 of Rajasthan Panchayati Raj Act, 1994 which will hereinafter be referred as the Act of 1994 . The petitioner herein filed reply to the Election Petition. Thereafter, issues were framed. Parties to the Election Petition concluded their evidence and after hearing the parties, learned Senior Civil Judge, Laxmangarh allowed the Election Petition and declared the petitioner's election to be void vide impugned judgment. It is against this judgment dated 28.09.2016, the present petition is preferred.

(3.) Learned counsel for the respondent submitted that Senior Civil Judge, Laxmangarh hearing the Election Petition under Rule 80 is a persona designata and his action in dealing with Election Petition cannot be examined by this Court under Article 227 of the Constitution of India. Learned counsel also submits that only the remedy lies against the impugned judgment is writ of certiorari under Article 226 of the Constitution of India. In support of his contentions, learned counsel for the respondent placed reliance on:-