Norman Macleod, Kt., C.J.
1. This application purports to be made under Sections 115 and 151 of the Civil Procedure Code in the following circumstances:
The petitioner and opponent No. 1 were candidates in the Bhuleshwar (C) ward Municipal General Election held on January 29, 1923, with fifteen others for sixteen seats. The petitioner as a result of the poll was not elected, and then filed an Election Petition under Section 33 of the City of Bombay Municipal Act (III of 1888).
2. Under Section 33 (1) if the qualification of any person declared to be elected for being a councillor is disputed, or if the validity of any election is questioned whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause, any person enrolled in the Municipal election roll may, at any time, within fifteen days after the result of the election has been declared, apply to the Chief Judge of the Small Cause Court. Sub-section 2, Section 33, directs what the Chief Judge, after making such inquiry as he deems necessary, may decide. Under Sub-section 3 the Chief Judge's order shall be conclusive.
3. On March 7, the Chief Judge delivered judgment in the matter of the petitioner's application and dismissed it with costs.
4. The petitioner applies to this Court on the grounds, viz., (1) that the Election Court acted with material irregularity in various ways; (2) that the Court declined to exercise the jurisdiction vested in it under Section 33 of the City Bombay Municipal Act; and (3) that it erred in trying the petition summarily without framing any issues as requested in order to prevent any miscarriage of justice.
5. We admitted the petition in order that this matter might be argued as there is no direct authority on the question.
6. Section 151, Civil Procedure Code, may be easily ruled out as it is clear that the relief which is asked for by the petitioner cannot be granted under that section.
7. Then under Section 115 the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. The real question is whether the Chief Judge in the Small Cause Court acting under the powers granted him by Section 33 of the City of Bombay Municipal Act III of 1888 is a Court subordinate to this Court, so that if a case is made out for our interference within the powers granted to us by Section 115, Civil Procedure Code, we may make such order as we may think fit.
8. A similar question arose in Balaji Sakharam v. Merwanji Nowroji I.L.R. (1895) 21 Bom. 279 where it was held that a District Judge acting under Section 23 of the Bombay District Municipal Act, Amendment Act (II of 1884) was not a Court within the meaning of the word in Section 622 of the Civil Procedure Code (Act XIV of 1882), and that the High Court had no jurisdiction to revise his order refusing to set aside an election, nor could it interfere with an order made by him that the applicant should pay the costs incurred by the opponent. Section 23 of the Bombay District Municipal Act is practically identical in terms, apart from certain immaterial differences, with Section 33 of the Bombay City Municipal Act. It runs as follows:
If the validity of any election of a municipal commissioner is brought in question by any person qualified either to be elected or 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 Judge of the District within which the election has been or should have been held. The District Judge may, after such inquiry as he deems necessary pass an order fox confirming or amending the declared result of the election, or for Betting the election aside. For the purposes of the said inquiry the District Judge may exercise any of the powers of a civil Court, and his decision shall be conclusive.
9. The Chief Justice in delivering the judgment said (p. 281):
We are of opinion that a District Judge acting under Section 23 of the Bombay District Municipal Act Amendment Act, 1884, is not a Court within the meaning of the word in Section 622 of the Civil Procedure Code (Act XIV of 1882), and that this Court has no jurisdiction to revise his order refusing to set aside an election.... For the same reason we cannot interfere with the order he has made that the applicant shall pay the actual costs incurred by the opponent. The circular order referred to...deals only with District Courts, Courts of Small Causes, Subordinate Courts, and Mamlatdars' Courts. The District Judge in the present case is neither of these, and the order can have no application to him. He is merely a persona designata, and if he has jurisdiction at all to award costs, there is nothing to prevent him from awarding them on the scale he has adopted.
10. We may refer to another decision in Bhaishankar v. The Municipal Corporation of Bombay I.L.R. (1907) 31 Bom. 604 : 9 Bom. L.B. 417. That was a suit filed by the plaintiff under Section 33 of the City of Bombay Municipal Act against the Municipal Commissioner of Bombay to have it declared that the general election of conncillors by the Justices on February 21, 1907, was invalid and to set aside the said election altogether. It was held that the High Court had no jurisdiction to entertain such a suit. The Chief Justice said (p. 609):
But under Section 33 the Chief Judge has jurisdiction to determine the validity of a contested election, and so he is the tribunal appointed by the Act for that purpose. But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive.... Here not only is the Chief Judge appointed the tribunal, but it also is expressly provided that his order shall be conclusive, and that every election not called in question in accordance with the provisions of Section 33 shall be deemed to have been to all intents and purposes a good and valid election.
11. The point now in issue did not therefore arise in that case, but the decision cannot be said in any way to assist the petitioner in showing that it was considered by the Chief Justice that the, Chief Judge of the Small Cause Court acting as a special tribunal under the City of Bombay Municipal Act was a Court subordinate to the High Court. It seems to us that there is no reason whatever for differing from the decision in Balaji Sakharam v. Merwanji Nowroji I.L.R. (1895) 21 Bom. 279, as we think there is no distinction between the provisions of Section 23 of the Bombay District Municipal Act and Section 33 of the City of Bombay Municipal Act with regard to this particular point, whether or not, the Chief Judge acting under Section 33 is a persona designata, or a Court subordinate to the High Court. In our opinion, therefore, we have no power to interfere with the decision of the Chief Judge in this case, and the rule should be discharged with costs.