1. The petitioner is a defeated candidate at an election held on April 26, 1943, for the Municipal Borough, Jalgaon. On May 7, 1943, he applied under Section 15 of the Bombay Municipal Boroughs Act, 1925, questioning the validity of the election on several grounds and praying that the election might be set aside. The learned Assistant Judge, Jalgaon, heard the application, and on February 28, 1944, he dismissed it holding that the result of the election had not been materially affected. It is from this order of the learned Assistant Judge that this revisional application has been preferred.
2. It is contended by both Mr. Gupte and Mr. Gokhale that the application is not maintainable. Now it is conceded by Mr. Dixit that the learned Assistant Judge1 of Jalgaon is a persona designate under the Bombay Municipal Boroughs Act, 1925, for the purpose of deciding election disputes. I fail to see how if the learned Judge is a persona designate the High Court can exercise any revisional powers. Section 115 of the Civil Procedure Code in terms refers only to Courts subordinate to the High Court in respect of which revisional powers of the High Court can be exercised. Mr. Dixit says that the learned Assistant Judge has failed to exercise the jurisdiction vested in him under the Act. Be that as it may, this Court has no jurisdiction to correct any mistake committed by a persona designate whether he exercises jurisdiction not vested in him or fails to exercise jurisdiction vested in him or acts with material irregularity in the exercise of his jurisdiction. The applicant may have other remedies to get his wrongs redressed. But as far as the High Court's revisional powers are concerned under Section 115 of the Code, as I have already observed, they can only be exercised against a Court subordinate to the High Court.
3. My attention has been drawn to a judgment of Mr. Justice Macklin in Hifzurraheman Ansansaheb v. Hasmsaheb Abansaheb (1943) 46 Bom. L.R. 371. The learned Judge held in that case that the High Court can exercise its powers of revision in a case in which the Judge though acting as a persona designate goes beyond the powers given to him by the Legislature. With great respect to the learned Judge, I do not find it possible to agree with that view of the law. Ordinarily I should have found myself bound by a decision of a single Judge. But there is a judgment of the divisional bench of this Court in Jagmohan v.. Venkatesh (1932) 35 Bom. L.R. 89 following Balaji Sakharam v. Merwanji Nowroji I.L.R (1896) Bom. 279 and Gangadhar v. Hubli Municipality (1925) 28 Bom. L.R. 519, where Mr. Justice Murphy and Mr. Justice Nanavati held that a Judge acting under Section 15 of the Bombay Municipal Boroughs Act, 1925, is not a Court but a persona designata, and the High Court has therefore no jurisdiction to revise his order under Section 115 of the Civil Procedure Code. Once that principle is accepted, it makes no difference what the nature of the order made by the persona designata is It is impossible to distinguish one order from another. Whether the order is without jurisdiction or in excess of jurisdiction, it is not for the High Court to correct that order.
4. I, therefore, discharge the rule with costs.