1. This petition raises an interesting question under the Mahasrashtra Zilla Parishads and Panchayat Samitis Act, 1961, hereinafter referred to as 'the Act,' as to whether a District Judge without being specially appointed for the purpose could inquire into and dispose of election petitions filed under Section 27 of the Act. The question arises on the following admitted facts:
2. Elections to the Zilla Parishad of Bhir were being held 'in May, 1972. The petitioner and respondents 1 and 2 were contesting elections from what is known as Mahalas Javla Constituency. In that election the petitioner polled 4,124 votes as against the 1st respondent, who polled 2,359 votes, and the second respondent, who polled 1,287 votes. The election of the petitioner was, however, challenged by the 1st respondent by an election petition, which was presented to the District Judge, Bhir. The election was challenged on several grounds of alleged corrupt practices. It is enough to state that on the issues settled for decision the learned District Judge held that the first respondent had proved that the petitioner was guilty of corrupt practices by reason of his having transported voters in his truck and also in a jeep. The learned District Judge further disqualified the petitioner under sub-section (8) of Section 27 of the Act, after setting aside the election. Correctness of that order has been challenged by this petition.
3. Mr. Chapalgaonkar, the learned advocate, who has appeared in support of this petition, has assailed the order of the learned District Judge on three grounds. At the outset he has attacked the order of the District Judge as be-ing one passed without jurisdiction and, secondly, he submits that the finding of the learned District Judge about the alleged corrupt practices by the petitioner is based on no evidence and, lastly, it is submitted that, in any ' event, since the order disqualifying the petitioner from being a member for a term of five years is passed without the petitioner being given an opportunity of being heard the same is also null and void.
4. Since, in our opinion, Mr. Chapalgaonkar is entitled to succeed on the point of jurisdiction, we do not think that it is necessary to deal with the other points.
5. The relevant provision under the Act is to be found in Section 27 of the Act. Sub-section (1) of Section 27 reads as follows:--
'If the validity of any election of a Councillor or the legality of any order made or proceedings held under Section 26 is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers, such candidate or person may, at any time within fifteen days after the date of the declaration of the result of the election or the date of the order or proceeding, apply to the District Judge of the district within which the election has been held, for the determination of such question.'
Sub-section (2) of Section 27 reads as under:
'An enquiry shall thereupon be held by a Judge, not below the rank 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 enquiry as he deems necessary, pass an order confirming or amending the declared result of the election or the order of the officer empowered by the Collector in that behalf under Section 26, or setting the election aside. For the purposes of the said enquiry, the Judge may exercise any of the powers of a civil court, and his decision shall be conclusive. If the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 14.'
Relying on the above provisions Mr. Chapalgaonkar submits that although under Sub-section (1) the Legislature intended that a person intending to challenge the election may apply to the District Judge of the district, the Legislature in enacting Sub-section (2) made it clear that after the presentation of such application or election petition, the same shall be inquired into only by a Judge appointed by the State Government either specially for the case or for such cases generally. In support of his interpretation Mr. Chapalgaonkar also relied on an order passed by the State Government on 2nd April, 1962 being Order C. & R.D.D. No. LVR-1062-H-Q, as amended by the Government order of even number dated 22nd June, 1962, which reads as under:
'In exercise of the powers conferred by Sub-section (2) of Section 27 of the Maharashtra Zilla parishads and Panchayat Samities Act, 1961 (9 Man. v. of 1962) the Government of Maharashtra hereby appoints all Assistant Judges (wherever such Judges are appointed and elsewhere, the District Judges)within their respective jurisdiction for deciding cases wherein the validity of elections of Councillors or the legality of orders made or proceedings held under Section 26 of the said Act is brought in question.'
6. It would thus appear that initially by its order dated 2nd April, 1962, the Government of Maharashtra had appointed only the Assistant Judges to dispose of election petitions in exercise of its powers under Sub-section (2) of Section 27 of the Act. Perhaps on realising that there are certain districts in which no Assistant Judges are posted or working, and that the District Judges would not, without being specially appointed, have jurisdiction to dispose of election petitions, the Government seems to have amended the original order dated 2nd April, 1962, on 22nd June, 1962 whereby the original order was specially amended so as to read: 'wherever such Judges are appointed and elsewhere, the District Judges'. It is not disputed that both, when respondent No. 1 filled the election petition challenging the election of the petitioner and also when theelection petition was inquired into by the learned District Judge, Bhir, there was an Assistant Judge posted in the District Court at Bhir, and that in particular one Mr. P. W. Rege was, in fact, an Assistant Judge at the relevant time, when the election petition was inquired into and disposed of by the District Judge. It is, therefore, urged by Mr. Chapalgaonkar that having regard to the admitted fact that there was an Assistant Judge working in the District Court at Bhir, both when the application was presented and was inquired into, and having regard to the provisions of Sub-sections (1) and (2) of Section 27 and the Notification of the Government dated 2nd April, 1962, as amended on 22nd June, 1962, the learned District Judge had no jurisdiction to deal with the matter and, therefore, argues Mr. Chapalgaonkar, the judgment and order of the learned District Judge being without jurisdiction, must be quashed.
7. Mr. Kerkar, the learned advocate for respondent No. 1, submits, firstly, that since the District Judge is the head of the district and the Assistant Judge is subordinate to him, it was perfectly open for the District Judge to hear the election petition. At any rate, argues Mr. Kerkar, that since the question of want of jurisdiction was not raised by the petitioner when the District Judge inquired into the same, and he had submitted to the jurisdiction of the District Judge, it is not now open to the petitioner to agitate the question of want of jurisdiction, for the first time, in this Court.
8. It is needless to say that the question of jurisdiction can be certainly raised, though it was not agitated before the learned District Judge. There could be no waiver on the point of jurisdiction as was submitted by Mr. Kerkar. It is well known that parties cannot confer jurisdiction even by consent, when in law the authority could not have jurisdiction, but somebody else has, in fact, the jurisdiction to deal with the matter.
9. Now, it would appear on the plain reading of sub-section (1) of Section 2V that if the validity of an election of a Councillor is brought in question by any candidate at such election, suchcandidate may at any time within 15 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 held, for the determination of such question. There is, therefore, no difficulty that an application could be made to the District Judge, although the District Judge is not specially empowered to entertain or receive such applications. The Act itself provides that an application can be made to the District Judge for challenging the election. Now, normally one should have expected that the District Judge to whom an application has been presented would have every jurisdiction to deal with the election petition, but then the Legislature seems to have conceived of two stages in the matter of the disposal of election petitions. The first such 'stage, which is conceived by Sub-section (1), is to empower the District Judge only to receive the applications. When it comes to the stage of inquiry in the election petition, the Legislature specifically provided by Sub-section (2) that 'An enquiry shall thereupon be held by a Judge, not below the rank of an Assistant Judge, appointed by the State Government either specially for the case, or for such cases generally. It is significant to note that this Sub-section in very clear terms provides that the inquiry shall be hold by a Judge appointed by the State Government either specially for the case or for such cases generally. Now, this expression qualifies not only the Assistant Judge, but the Judge who is to hold the inquiry. This provision clearly indicates that notwithstanding the fact that under Sub-section (1) an application could be presented to the District Judge, when it comes to, an inquiry being thereupon made, the same could be made or held only by a Judge, who has been appointed by the State Government either specially for the case or for such cases generally. Care has, however, been taken to provide that such Judge, who is to be appointed, should not be below the rank of an Assistant Judge. But. in any event, the provisions are clear that in the absence jof an appointment being made by the State Government either specially for the case or for such cases generally,the District Judge cannot proceed to hold an inquiry. In other words, in the| absence of his being appointed by the State Government either specially for the case or for such cases generally, the District Judge has no jurisdiction, to inquire into and dispose of election petitions notwithstanding the fact that under Sub-section (1) of Section 27 such petitions or applications could be made' to him.
10. That the Government is fully] aware of this legal position is clear! from the Government Notification dated 2nd April, 1962, as amended on 22nd June, 1962, which is set out above. Since it is an undisputed fact that at the relevant time there was an Assistant Judge at Bhir, it would follow that having regard to the provisions of Section 27 read with the Notification of the Government dated 2nd April, 1962, as amended by Notification dated 22nd June, 1962, it was the Assistant Judge alone who could have inquired into and disposed of the election petition in question, and the District Judge, who inquired and disposed of the petition, has clearly done so without any jurisdiction to do so. It is thus clear that the whole exercise has been done without jurisdiction and, therefore, the impugned order of the District Judge has to be quashed. As we have said earlier, in the view we are taking on the question of want of jurisdiction, it is not necessary to' deal with the other two contentions.
11. The petition, therefore, succeeds.
12. Rule is made absolute, but thereshall be no order as to costs.
13. Petition allowed.