SOMALAL NATHJIBHAI SIROYIA Vs. ARJANDAS JODHARAM
HIGH COURT OF GUJARAT
SOMALAL NATHJIBHAI SIROYIA
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(1.)In this petition the decision of the District Judge Panchmahals at Godhra holding that the District Judge has jurisdiction to decide election petitions under sec. 15 of the Bombay Municipal Boroughs Act 1925 is challenged. In 1962 June election for the Godhra Borough Municipality was held. The result of the election in ward No. 1 was declared on 18th June 1962 wherein the petitioner and respondents Nos. 1 to 4 were declared elected and respondents Nos. 6 to 18 were declared as unsuccessful. Respondent No. 5 filled an election petition in the Court of the District Judge Panchmahals at Godhra under sec. 15 of the Bombay Municipal Boroughs Act. The petition was contested. At the stage of hearing it appears the respondent No. 5 put in an application contending that as the learned District Judge was not appointed as required under section 15(2) of the Bombay Municipal Boroughs Act to conduct the inquiry be had no jurisdiction to hear the petition. The learned Judge heard the preliminary objection and decided that he had jurisdiction. The grounds on which the learned Judge held that he had jurisdiction inter alia were that the rule of stare decisis was in favour of the view that the District Judge is the competent authority to hear such petitions that at no time after the Municipal Boroughs Act came into force in 1925 the State Government had been called upon to issue a notification specially empowering the District Judge by a general or special notification to hear election petitions. Under the Bombay Civil Courts Act 1869 the District Court is the principal Court of civil jurisdiction and the District Judge presides over it and as such has jurisdiction to decide all matters filed in his Court. The learned Judge also seemed to think that the Bombay High Court was of the same view and placed reliance particularly on two decisions which I shall refer to later. On the interpretation of sub-clause (2) of see. 15 the learned Judge observed that in his opinion if the inquiry was to be held by a Judge below the grade of the District Judge then only the State Government had to issue either a special or general notification. He refused to follow the direct authority of the Saurashtra High Court in Ratilal Fulabhai v. Chunilal M. Vyas A. I. R. (38) 1951 Saurashtra 15 on the ground that the Bombay High Court was of his view. After giving due consideration to the provisions of law the reasoning given by the learned Judge in his judgment and the decisions cited therein with respect I am unable to accept the conclusion reached or the reasoning of the learned District Judge for reasons that follow.
(2.)Mr. B. D. Shukla appearing for the respondent No. 5 fairly conceded that he found it difficult to support the decision.
(3.)The short point involved in this petition is whether under sub-see. (2) of sec. 15 the District Judge has the authority to hear and decide the petition without being appointed by the State Government either specially for the case or for such cases generally. Before I proceed to consider this important legal aspect it would be necessary to reproduce verbatim sub-sees. (1) and (2) of sec. 15 of the Municipal Boroughs Act which are material for the decision of this point.
1 If the validity of any election of a councillor is brought in question by any person qualified to vote at the election to which such question refers such person may at any time within ten days after the date of the declaration of the result of the election apply to the District court of the district within which the election has been or should have been held for the determination of such question.
(2) An inquiry shall thereupon be held by a Judge not below the grade of an Assistant Judge appointed by the state Government either specially for the case or for such cases generally and such Judge may after such inquiry as he deems necessary and subject to the provisions of sub-sec. (3) pass an order confirming or amending the declared result of the election or setting the election aside. For the purpose of the said inquiry the said Judge may summon and enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court and he may also direct by whom the whole or any part of the costs of any inquiry shall be paid such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure. The decision or order shall be conclusive.
Chapter II of this Act deals with the constitution of municipalities as the heading indicates. Secs. 4 to 34A fall within this Chapter. The Chapter stands divided into what may be called seven sub-divisions. We are concerned in this ease with sub-division 3 which deals with election of Councillors of a municipal borough as the sub-head indicates and secs. 9 to 171 fall within the sub-division (3). This Chapter provides inter alia for the election of municipal councillors for each municipality the period of holding this office preparation of lists of voters and inclusion of the names of persons who can vote and be elected disqualifications for becoming a councillor disqualification of voters right to vote setting up of a machinery to determine the validity of elections rules of conduct during the course of election and penalties for breach thereof. By sec. 15 the Legislature has set up the special machinery for the making of an application by a voter who intends to challenge the election of any councillor and the inquiry to be held in respect thereof. Now if we have a look at sub-sec. (1) it clearly indicates that it only provides for the forum where the application for the determination of the question shall be presented. It does not provide at all for the actual decision of the application that is to say the procedure to be adopted or the person who shall have the authority to decide it. What is to follow after the application is presented falls within the ambit of sub-sec. (2). It provides that for deciding the application an inquiry shall be held and it also provides for the appointment of persons who shall be authorised to hold such an inquiry. The word thereupon advisedly used by the Legislature in sub-section (2) when read in proper context supports the construction I am placing on the provisions. It clearly connotes that on the filing of the application as provided in sub-sec. (1) an inquiry will be held by a Judge as provided in sub-sec. (2). This inquiry does not obviously fall within the scope and ambit of sec. 9 of the Civil Procedure Code and therefore the mere fact that under sec. 15 the election petition is to be filed or presented in the District Court would not automatically authorise the District Judge to dispose of the matter under his ordinary civil jurisdiction unless it can be held that sub- sec. (1) also vests in him special jurisdiction to hear and decide it. I have already indicated that such is not the case. It is only sub-section (2) that speak of the inquiry to be held and the persons who are to be authorised to deal with and decide such petitions in the inquiry. So for the purposes of finding out whether the District Judge has the authority or not one has to turn to sub-sec. (2) and look for his powers therein and not under sub-section (1).
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