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Yeshwanta Mahadeo Dhirde Vs. Nandkishore Ghanashyamlal Jaiswal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application No. 425 of 1960
Judge
Reported in(1961)63BOMLR628
AppellantYeshwanta Mahadeo Dhirde
RespondentNandkishore Ghanashyamlal Jaiswal
DispositionAppeal Dismissed
Excerpt:
central provinces and berar municipalities act (11 of 1922), sections 20-a(2), 15(j)--m.p. municipal manual, 1956, chap. iii, rules 6, 8, 12--bombay civil courts act (bom. xiv of 1869), section 16--central provinces and berar local government act (xxxviii of 1948), sections 10(c), 2(g), 192(d)--madhya pradesh land revenue code (ii of 1955), sections 239, 237, 205 (1)--madhya pradesh abolition of proprietary rights (estates, mahals, alienated lands) act (1 of 1951), section 50--central pro-winces and berar general clauses act (i of 1914), section 2(29)--madhya pradesh land revenue (village patels) rules, 1957, rule 9--whether special empowerment by notification necessary in case of district or additional district judge to entertain election petition under section 20-a(2) of act ii of.....abhyankar, j.1. this revision petition has been filed by the applicant yeshwanta mahadeo dhirde under the provisions of sub-section (5) of section 20-a of the c.p. & berar municipalities act, 1922, against the decision of mr. b. v. patwardhan, assistant judge, nagpur, by which the assistant judge dismissed the election petition filed by the petitioner yeshwanta by his judgment dated august 3, 1960- by the original petition the applicant yeshwanta challenged the election of the present opponent nandkishore ghanashyamlal jaiswal who was elected as a member from ward no. 10, called vithal mandir ward, of katol municipal committee. nominations for elections as ward members from several wards were to be filed on may 25, 1959. the nomination papers were scrutinised on may 27, 1959. at the time.....
Judgment:

Abhyankar, J.

1. This revision petition has been filed by the applicant Yeshwanta Mahadeo Dhirde under the provisions of Sub-section (5) of Section 20-A of the C.P. & Berar Municipalities Act, 1922, against the decision of Mr. B. V. Patwardhan, Assistant Judge, Nagpur, by which the Assistant Judge dismissed the election petition filed by the petitioner Yeshwanta by his judgment dated August 3, 1960- By the original petition the applicant Yeshwanta challenged the election of the present opponent Nandkishore Ghanashyamlal Jaiswal who was elected as a member from Ward No. 10, called Vithal Mandir Ward, of Katol Municipal Committee. Nominations for elections as Ward Members from several wards were to be filed on May 25, 1959. The nomination papers were scrutinised on May 27, 1959. At the time of scrutiny of nomination paper of opponent Nandkishore, applicant Yeshwanta had raised an objection to the nomination paper of Nandkishore being accepted on the ground that Nandkishore was a Patel of village Peth-Budhwara and, having been so appointed a Patel on January 22, 1952, was holding a salaried office under the Government and was thus disqualified to be a member of a local authority, viz. the Janapad Sabha and, consequently, was disqualified from being elected as a member of the Municipal Committee. That objection was disallowed. June 8, 1959, was the date of withdrawal of candidatures and after some withdrawals, the only candidates contesting the election from Ward No. 10 were the applicant Yeshwanta and the opponent Nandkishore. Poll was taken on June 29, 1959, and on counting of votes it was found that opponent Nandkishore had secured 197 votes whereas the applicant Yeshwanta had obtained 189 votes. The opponent Nandkishore was, therefore, declared elected as a member from Ward No. 10. The result of this election was published in the gazette as required by Rules on July 9, 1959.

2. Purporting to challenge this election by an election petition, the applicant presented an election petition, out of which this revision arises, on July 14, 1959, to the Clerk of the Court of the District Court at Nagpur. The election petition is styled as being filed in the Court of the District Judge, Nagpur. The petition having been received by the Clerk of the Court, the petitioner was directed to appear on July 18, 1959, before the Court. In the meanwhile, on July 15, 1959, there is an endorsement in the order-sheet under the signature of the Clerk of the Court that the petition was examined and ordered to be registered. On July 18, 1959, the order-sheet mentions as follows:-

Transferred to the Asst. Judge, Nagpur, for disposal.

This order-sheet is signed by Mr. J. M. Sheth, who was then the District Judge, Nagpur. On receipt of the election petition on July 28, 1959, by the then Assistant Judge Mr. Junankar, he ordered issue of notices to the respondents. It appears that Mr. Junankar ceased to be the Assistant Judge on this file after April 23, 1960, and the petition was thereafter heard by Mr. B. V. Patwardhan and was also disposed of by Mr. B. V. Patwardhan by his order dated August 3, 1960, as already stated.

3. Before the Assistant Judge the opponent Nandkishore raised several contentions resisting the election petition on various grounds. It appears that even though the applicant Yeshwanta had challenged the election of the opponent on several grounds including his disqualification on account of his being the holder of a salaried office under Government, those contentions were not pressed. The Assistant Judge has decided the election petition so far as the applicant Yeshwanta is concerned, with regard to his objection as to the disqualification of the opponent Nandkishore is concerned. The opponent Nandkishore on the other hand had also challenged the jurisdiction of the Assistant Judge to entertain or to deal with the election petition. Shortly stated, the objection to the jurisdiction taken by the opponent was that the election petition could not be presented to the District Judge unless he was specially empowered as required by the provisions of Section 20-A of the C.P. & Berar Municipalities Act. It was further contended that there was no notification empowering the District Judge or Assistant Judge to hear the election petition, by any notification under Section 20-A of the C. P. & Berar Municipalities Act. It was specifically stated that the person so empowered acts as a persona designata and is not a Court. The opponent further disputed the jurisdiction of the District Judge to transfer the petition to the Assistant Judge.

4. Though the Assistant Judge framed a preliminary issue with respect to the jurisdiction of the Court, all the issues were decided at the same time. The learned Judge held with regard to his jurisdiction that under Section 20-A of the Municipalities Act it was not necessary that the District Judge or the Additional District Judge should be specially empowered by the Provincial Government and that only a Civil Judge was required to be so empowered by a notification. In his opinion, therefore, as the election petition was presented in the Court of the District Judge, Nagpur, it was properly presented and that in receiving it the Clerk of the Court only performed a clerical duty. Then, as regards the power of transfer to the Assistant Judge, the learned Judge held that the District Judge was empowered under Section 16 of the Bombay Civil Courts Act to refer to the Assistant Judge any matter under the special enactment and, therefore, the District Judge was competent to transfer the election petition for trial to the Assistant Judge and thus the Assistant Judge was held competent to try the election petition.

5. As regards the disqualification of the opponent Nandkishore, however, the learned Judge held following a decision of the Nagpur High Court in Jawaharlal v. Dy. Commissioner [1955] N.L.J. 183 that the opponent Nandkishore who was a Patel and, therefore, a Government servant, was not remunerated by salary or honorarium. It was held that the emoluments received by a Patel under the M. P. Abolition of Proprietary Rights Act, 1950 (I to 1951) and subsequently under the provisions of the M.P. Land Revenue Code, 1954 (II of 1955) were not salary or honorarium as opposed to fees or commission and, therefore, the opponent had not incurred any disqualification for being a councillor under the Local Government Act (C.P. & Berar Act No. XXXVIII of 1948). As there was no disqualification incurred under Section 10(c) of the Local Government Act of 1948, there was no consequent disqualification in the opponent from being a member of the Municipal Committee under Section 15(j) of the Municipalities Act.

6. As regards the contentions raised by the applicant Yeshwanta about procurement of votes by foul means and covered by issues Nos. 2 to 7 at the trial, no evidence was led by the applicant Yeshwanta and the Assistant Judge held that these issues were not proved.

7. In the result, on his finding that the opponent was not disqualified, the Assistant Judge dismissed the petition.

8. It is urged in this revision application on behalf of the opponent, that the Assistant Judge had no jurisdiction to receive and decide the petition or that the petition was not properly presented to the Tribunal having the requisite jurisdiction. Sub-section (2) of Section 20-A of the C.P. & Berar Municipalities Act, 1922, provides as follows:-

Such petition shall be presented to the District Judge or Additional District Judge or a Civil Judge especially empowered by the State Government in this behalf within the local limits of whose jurisdiction the election was held...,

and the question that falls for decision is whether special empowerment by a notification by the Provincial Government is necessary in the case of a District Judge or an Additional District Judge or whether the words 'especially empowered by the Provincial Government in this behalf' govern only the third category of officer, namely, a Civil Judge.

9. Sub-section (3) of that section provides that such petition shall be enquired into and disposed of according to such summary procedure as may be prescribed by rules made under this Act. Sub-section (4) provides that no appeal shall lie against the decision of the Judge on such petition; but a right of applying to the High Court in revision against the decision by a person aggrieved thereby is specifically given under Sub-section (5). But the revisional powers are also restricted to a challenge on the ground that the decision is contrary to law or that the Court has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction vested in it by law. Now, rules have been framed under Section 176(2) (i) of the Act as to the procedure to be followed by the Judge in inquiries relating to the petitions presented under Section 20-A and other matters. These rules are to be found at pages 292 to 296 in the M.P. Municipal Manual, Chapter II, printed in 1956. Rule 4 in these Rules enjoins on the petitioner that at the time of presentation of the petition, the petitioner shall deposit with the Judge a sum of rupees two hundred and fifty as costs of the petition. A penalty of dismissal of the petition is provided for non-compliance with this rule. Then there is an important rule, viz. rule No. 6, which provides that subject to other provisions of these rules every such petition shall be enquired into by the Judge as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits, provided that it shall only be necessary for the Judge to make a memorandum of the substance of the evidence of any witness examined by him. Rule 8 contemplates that there may be more petitions than one in respect of the same election; but Rule 8 does not provide for transfer of petition in respect of the same election from one Tribunal to the other. Consequences of the death of the petitioner and the provisions for issue of notices on the death of a respondent to a petition are separately mentioned in Rules 9 and 10. Then follows an important rule which is Rule No. 12 which says as follows:-

For purposes of enquiring into such petitions, the Judge shall have the powers which are vested in a court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters:-

(a) discovery and inspection;

(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;

(c) compelling the production of documents;

(d) examining witnesses on oath;

(e) granting adjournments;

(f) reception of evidence taken on affidavits; and

(g) issuing commissions for the examination of witnesses,

and power is given to the Judge to summon and examine suo motu any person whose evidence appears to him to be material and then follows a special provision that the Judge shall be deemed to be a civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898. Rule 13 provides that, subject to the provisions of these rules, the provisions of the Evidence Act, 1872, shall be deemed to apply in all respects to an enquiry under these rules. Rule 16 provides for appearance before the Judge by a party or his pleader or an agent duly appointed to act on his behalf. By Rule 19 reasonable expenses incurred by any person attending to give evidence are liable to be given at the direction of the Judge and they are to be deemed to be part of the costs. Then a special provision is made in Rule 20 with regard to costs which says that costs shall be in the discretion of the Judge and Rule 21 provides that an application for the execution of an order relating to cost shall be presented to the Judge who shall execute it in the same manner and by the same procedure as if the order were a decree of a Court.

10. Examination of these provisions shows, in my opinion, that the authority appointed to inquire into the election disputes under Section 20-A of the C. P. & Berar Municipalities Act, 1922, is a persona designata and not a Court. It will be seen that elaborate and extensive provisions are made regarding the procedure to be followed, powers to be exercised at the inquiry which are analogous to some of the provisions under the Code of Civil Procedure but for which special provisions had to be made in the Rules. If the District Judge or the Additional District Judge would ipso facto have the power as such to entertain an election petition without being specially empowered by the Provincial Government under Section 20A(2) of the Act, it is difficult to see why it was necessary to provide for restricted powers of such a Tribunal in the case of the District Judge or the Additional District Judge. The enumeration of special provisions of the Code of Civil Procedure in Rule No. 12 and the special provisions for realisations of the costs as if it were a decree of the Court and the mention that the Tribunal shall be deemed to be a civil Court within the meaning of Section 480 or 482 of the Code of Criminal Procedure in Rule No. 12, the absence of any provision for transfer of petitions from one Tribunal to another, all go to show that the Legislature intended that any one of the authorities enumerated in Sub-section (2) of Section 20-A of the Act was to act as persona designate and not merely by virtue of the office already held by them and that such authority had to be specially empowered by the State Government by a proper notification. Now, it is not disputed that in the exercise of these powers of Sub-section (2) of Section 20-A such a notification was issued by the then Government of Madhya Pradesh in 1947. Under that notification Civil Judges of Class I were empowered to hear and dispose of election petitions under Section 20-A, There was no notification empowering either District Judge or Additional District Judge to hear and dispose of election petitions under the Municipalities Act. I do not think that it was ever the intention of the Legislature that a notification especially empowering was only necessary in the case of Civil Judge either of Class I or Class IT and that such a notification was not necessary in the case of a District Judge or an Additional District Judge.

11. The Rules themselves contemplate-and which is a matter of common experience-that more than one election petition could be filed challenging the same election. If there were three concurrent tribunals or authorities who could be said to have jurisdiction to entertain an election petition in respect to the same election, it is difficult to see how it was possible to avoid conflicting and contradictory decisions in respect to the same election. Now, if it is to be held that the authority functioning as an Election Tribunal under Sub-section (2) of 8, 20-A of the C.P. & Berar Municipalities Act, 1922, was a persona designata, then the District Judge having entertained an election petition would have no power to transfer the petition to any other persona designata, viz. either the Additional District Judge or the Civil Judge specially empowered. A power of transfer necessarily postulates a subordination of an authority to whom the necessary work could be delegated. I do not find any such authority in the Rules and none can be claimed by the District Judge at least from the Rules. In this connection Mr. Mandlekar for the applicant in this Court relied on Section 16 of the Bombay Civil Courts Act, 1869. Now Section 16 of the Bombay Civil Courts Act, which Act was made applicable to this region only on April 1, 1959, says as follows:-

The District Judge may refer to any Assistant Judge subordinate to him original suits of which the subject-matter does not amount to fifteen thousand rupees in amount or value, applications or references under special Acts, and miscellaneous applications.

The Assistant Judge shall have jurisdiction to try such suits and to dispose of such applications or references.

On the strength o these provisions Mr. Mandlekar contends that this Act, viz. the Bombay Civil Courts Act, gives power to the District Judge who has entertained an election petition under Section 20-A of the C.P. Municipalities Act to transfer such a petition for disposal to his Assistant Judge. It is difficult for me to accept this contention as well-founded. An Assistant Judge figures nowhere in the authorities enumerated in Sub-section (2) of Section 20-A of the C.P. Municipalities Act. Even assuming that a District Judge or an Additional District Judge need not be empowered as contended by Mr. Mandlekar, there is no room for an argument that an Assistant Judge could be an authority, though not enumerated or mentioned in Sub-section (2) of Section 20-A, which would still have the power to entertain or dispose of an election petition merely by reason of Section 16 of the Bombay Civil Courts Act. In fact, in my opinion, the Bombay Civil Courts Act does not purport to create any power in the District Judge when he is acting as a persona designata to transfer any application entertained by him under any special Act to his Assistant Judge.

12. Now the authority is not wanting for the proposition that a District Judge or an Additional District Judge when empowered to entertain and decide an election dispute acts not as a Court but as a persona designata. There are series of decisions of this Court which have interpreted similar provisions in other Acts and these may be noticed at this stage. The earliest case is reported in Balaji Sakharam v. Merwanji Nowroji I.L.R (1895) 21 Bom. 279. Under Section 23 of the Bombay District Municipal Act the validity of an election of a Municipal Commissioner could be challenged by applying to the District Judge of the district in which the election has been or should have been held. Such an election was challenged in that case and against the decision of the District Judge a revision was taken to the High Court. A preliminary objection was raised to the tenability of the revision. It was held by Farran C.J. that a District Judge acting under Section 23 of the Bombay District Municipal Act Amendment Act, II of 1884, is not a Court within the meaning of the words in Section 622 of the Civil Procedure Code and that the High Court had no jurisdiction to revise his order refusing to set aside an election. It was contended as an alternative that at least in respect of the order of costs the High Court should exercise its revisional powers, but even that contention was repelled on the ground that the High Court Circular No. 62 with respect to costs dealt only with the District Courts and not with a District Judge in the instant case who was not acting as a District Court but who was acting merely as persona designata. The point again came for decision in Navalkar v. Sarojini Naidu : AIR1923Bom421 . Under Section 33 of the City of Bombay Municipal Act, 1888, the Chief Judge of the Small Cause Court at Bombay was empowered to entertain an application challenging the election of a Municipal Councillor and election was challenged by one Mr. Navalkar. The Chief Judge of the Small Cause Court held in favour of Mrs. Sarojini Naidu that she was properly elected and dismissed the application. Mr. Navalkar applied to the High Court and the opponent raised a preliminary objection that the Chief Judge was acting as a persona designata and his order was not revisable. After reviewing the authorities including Balaji Sakharam v. Merwanji Nowroji, Macleod C.J. ruled that there was no reason whatever to differ from the decision in Balaji Sakharam v. Merwanji Nowroji, because there was no distinction between the provisions of Section 23 of the Bombay District Municipal Act and Section 33 of the City of Bombay Municipal Act and that the Chief Judge of the Small Cause Court was acting as a persona designata. On this ground the High Court declined to entertain a revision application.

13. The point again came up for decision before this Court in Gangadhar v. Hubli Municipality (1925) 28 Bom. L.R. 519 in respect of a member of a Hubli Municipal Committee. An election of a member to a Municipal Committee was liable to be challenged by an application under Section 22 of the Bombay District Municipal Act, 1901 (Act No. III of 1901). The unsuccessful candidate presented an application in that case to the Clerk of the Court at Dharwad. The petition was heard by the Assistant Judge who came to the conclusion that the presentation of the petition to the clerk was not a proper presentation to the District Judge as required by Section 22(1) of the Bombay District Municipal Act and the petition was dismissed by the Assistant Judge on that ground. The matter was taken to the High Court invoking its revisional jurisdiction. It was urged in support of the tenability of the petition in that case that as the District Judge, or the Assistant Judge acting for the District Judge, had refused to entertain the application on the ground stated in the judgment, that enabled the Court to interfere. It was held by Sir Norman Macleod C.J. that a District Judge remains a persona designata whether he hears the petition and makes an order thereon, or whether he refuses to entertain the application, because it has not been presented to him in time. Thus, according to this decision, whether the petition was liable to be entertained by the District Judge or the Assistant Judge, it made no difference to the proposition that the authority so appointed always acted as a persona designata.

14. The matter was again agitated in Jagmohan v. Venkatesh (1932) 35 Bom. L.R. 89. The District Judge in that case who heard the application had set aside the election of Jagmohan and had declared that the candidate Venkatesh was duly elected. Jagmohan took the matter to the High Court and a preliminary objection was again raised that under Section 15 of the Bombay District Municipalities Act (Act XVIII of 1925), the Tribunal which was appointed to hear the petition was not a Court but a persona designata. On behalf of the applicant it was contended that after the decisions in Balaji Saltharam v. Merwanji Nowroji and Gangadhar v. Hubli Municipality, the law was changed. The contention was that the determination of compensation payable by Municipal Committee under s.198 of the Municipal Act was made revisable by the High Court. Reliance was also placed on a Full Bench decision in Parthasaradhi Naidu v. Koteswara Rao I.L.R (1923) 47 Mad. 369 which took a view contrary to the decisions of this Court. In repelling the contentions this Court observed as follows (p. 90) :-

We are, however, now concerned with Section 15 of the Act of 1925. Comparing that section with the corresponding Section 22 of the Act of 1901, we find that there was an amendment, but the amendment was the substitution of the words 'District Court' for those of 'District Judge' in the Act of 1901. The difficulty, in fact, had been in the case dealt with by Sir Norman Macleod in Gangadhar v. Hubli Municipality that the application had been presented to the clerk of the Court and not to the District Judge personally, and this was clearly the difficulty sought to be got over by the change. Sub-section (2), however, is substantially what it was in the Act preceding the present one, and that is what we have to interpret. Under Section 15 an application has to be made to the District Court under Sub-section (I) and an enquiry has then to be held by the District Judge or Assistant Judge specially empowered under Sub-section (2) by Government. The same subsection then goes on further to empower the specially empowered Judge to 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 such enquiry shall be paid; and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure and that the decision or order shall be conclusive.

It seems to me that clearer case of persona designata is hard to frame. It is not the District Court, but one of its officers who has to be specially designated. Such officer does not exercise his ordinary powers in summoning and enforcing the attendance of witnesses, but those specially conferred upon him by the section. Further costs are not recoverable under the ordinary powers of the District Court, but recoverable as if they had been awarded in the case of the exercise of its original jurisdiction. In these circumstances, it seems clearly to have been the intention of the legislature to provide for these applications being heard by one of the officers constituting the District Court, not in the exercise of his ordinary civil jurisdiction, but in special circumstances, which are consistent only with his being a persona designata for the purposes of this section of the Act.

Upon this view the revision application was dismissed. Now, it seems to me that there is a very close analogy and identity of provisions between the rules made under Section 20-A of the C.P. & Berar Municipalities Act, 1922 and the provisions enumerated in Section 15 of the Bombay District Municipalities Act, 1925. In the Rules framed under the C.P. & Berar Municipalities Act for decision of election disputes, a special forum is created, special rules of evidence and special provisions for exercising the powers of the Court under the Code of Civil Procedure are prescribed, there is no provision for transfer of petitions from one Tribunal to another and there is a special provision for realisation of costs. I am thus confirmed in my view from the decisions of this Court interpreting similar provisions under the Bombay Acts that a District Judge or an Additional District Judge or a Civil Judge is acting as a persona designata and being a persona designata, a special empowerment is necessary by notification in respect of each of these persons. In the Bombay case just quoted enquiry had to be held by the District Judge or Assistant Judge specially empowered under Sub-section (2) by the Government and it would appear from the decision that an empowering notification was required in the case of both, i.e. the District Judge and the Assistant Judge, because it is the specially empowered Judge who had been given the power to summon and enforce attendance of witnesses and to exercise the several powers enumerated in that complete code of procedure provided by the rules.

15. Now, this takes us to the latest ease on the subject which is a decision of Chagla J., as he then was, and reported in Keshav Ramchandra v. Municipal Boroough, Jalgaon : AIR1946Bom64 . That again was a case of revision challenging the decision of the District Judge under the Bombay Municipal Boroughs Act, 1925. The revision was not entertained by this Court, following the previous decisions of this Court which are all Division Bench decisions and in spite of a decision reported in Hifzurraheman Abansaheb v. Hasansaheb Abansaheb (1943) 46 Bom. L.R. 371 which was a decision of a Single Judge of this Court. It was held in that case, Hifzurraheman Abansaheb v. Hasansaheb Abansaheb, that the revisional jurisdiction could be exercised even if the Judge was acting as a persona designata who had gone beyond the powers given to him by the Legislature. This view was not accepted and Chagla J. preferred to follow the previous decisions of this Court already referred to.

16. Mr. Mandlekar's contention would appear to be that this is a case where under statute matters are referred to the determination of a Court of record, viz. the District Judge or the Additional District Judge and that that Court determines the matters as a Court. The effect of mentioning the 'District Judge' or the 'Additional District Judge' merely is that their jurisdiction is enlarged but all the incidents of such jurisdiction remain the same. Mr. Mandlekar would be right in so contending if the matter was referred for determination to the District Court or to the Court of the Additional District Judge. In that case, no difficulty would arise because the subject-matter would be determined by the Court as a Court, it having been given jurisdiction for this particular purpose. But as the word used is 'Judge' and not 'Court', one has to carefully see whether the word 'Judge' was used 'in his capacity as a 'Judge' or in his personal capacity, and I think that, looking to the scheme of the rules and the interpretation which has been placed on similar provisions in this Court, the District Judge or the Additional District Judge or the Civil Judge is referred to as a persona designata and not as a Court. As observed by the Full Bench of the former Judicial Commissioner's Court in Nilkanth v. Jagannath 27 N.L.R. 61, persona designata is a person selected to act in the matter in his private capacity and not in his capacity as a Judge; but it is possible that the Legislature might intend to select a person to act in a matter in his private capacity and yet as a Judge. Obviously to ensure that the person selected might always be available, it is frequently desirable to describe such person as the holder of a Government office. Thus the fact that the person selected is described as the Judge of a particular Court, does not make it certain that he is not selected to act in his private capacity.

17. Now, this question directly arose for decision in the Nagpur High Court in the case reported in Purushottam v. G. V. Pandit [1950] N.L.J. 520and Kaushalendra Rao J. who heard the matter came to the conclusion that the words, 'especially empowered by the Provincial Government in this behalf' qualify not only 'Civil Judge class I' but also 'District Judge' and 'Additional District Judge'. The difficulty of accepting any other interpretation and holding that it was not necessary especially to empower the District Judge or the Additional District Judge has been fully set out by the learned Judge at page 523 of the report. I respectfully concur with this view. On another matter the learned Judge in that case remanded the case to the Court of first instance. From this order of remand, an appeal under the Letters Patent was taken in the same Court and the decision of the Letters Patent Appeal is reported in 'Dr. G. W. Pandit v. Dr. P. V. Deshmukh [1952] Nag. 352. In the appeal Court if it were to be contended that Additional District Judge was not. required to be specially empowered for entertaining the election petition, there would have been no question of setting aside of the order of Kaushalendra Rao J., as per the decision in Purushottam v. G. V. Pandit. But the Letters Patent Appeal was allowed and the election petition was ordered to be dismissed in limine. The Letters Patent Bench of course did not decide the contention of the respondents in that appeal that the District Judge or the Additional District Judge was not specially required to be empowered by a notification. The matter was considered in the High Court at Jabalpur by Naik J. in Janardan v. Hiralal [1957] M.P.L.J. 170. Naik J. took the view that empowerment was necessary in case of each one of the three authorities in Sub-section (2) of Section 20-A.

18. Mr. Mandlekar, the learned Counsel for the applicant, however, has relied upon two decisions of the High Court of Madhya Pradesh at Jabalpur which are reported in Bhojraj v. State : AIR1958MP286 and Ramchander v. H. A. D. J. Raigarh [1960] M.P.L.J.46. Bhojraj v. The State of M.P. is a decision of the Division Bench of the Madhya Pradesh High Court, presided over by M. Hidayatullah C.J., as he then was This decision takes the view contrary to the decision of Kaushalendra Rao J. in Purushottam v. G. V. Pandit. It has been held that the qualifying clause, 'specially empowered by the Provincial Government in this behalf cannot he carried beyond the words 'Civil Judge'. In para. No. 5 of the report, the learned Judges noticed the contention that there is a parallel Court in a single area and the petitioner would not know to which Court he should take his petition but observed that it is not an insuperable difficulty and that every District Judge in his district, by a distribution memo, designates the authority before which election petitions are to be filed and that this is a common practice and is to be found in connection with cases arising under the Guardians and Wards Act and the Indian Succession Act. In the result, the Court came to the conclusion that the interpretation put on Section 20-A(2) of the C.P. & Berar Municipalities Act by Kaushalendra Rao J. was erroneous. With great respect, I find considerable difficulty in following this decision; for one thing, series of decisions of this Court already quoted above have taken the view that an election authority appointed to hear an election petition under the Municipal laws, under identical provisions, acts as a persona designata. I am bound by these decisions and the principle of construction of such provisions laid down by these decisions. If the authorities which are enumerated are persona designata whether empowerment is or is not required is another matter. I fail to see how one authority can have power to transfer a petition to another authority when each authority in its turn acts as a persona designata. In such cases they are parallel authorities having concurrent jurisdiction and there is no question of subordination of one authority to another. On the other hand, it would appear that even though the power is given to the Government to empower more than one authority in respect of election matters, the Government has exercised that power only in respect of one authority, viz. Civil Judge, Class I, and has thus avoided any possibility of conflicting decisions in respect of the same election matter. Other provisions of the election rules also point out that the District Judge or the Additional District Judge have to be invested with the powers not as Presiding Officers of the respective Courts, but as special authorities as persona designata. The elaborate provisions in the rules empowering the election authorities in the matters of procedure are only consistent with the conclusion that even the District Judge or the Additional District Judge is required to be specially empowered in order to exercise the jurisdiction as an election tribunal and does not get jurisdiction ipso facto by reason of the office he holds in a particular area. The decision reported in Ramchander v. H. A. D. J. Raigarh by Dixit C.J. and Golwalkar J. takes the view that the District Judge or the Additional District Judge under Section 20-A acts not as persona designata but as Court. This view is in direct conflict with the series of decisions of this Court interpreting similar provisions and I am unable to accept this interpretation put on the provisions of Section 20-A (2) in the High Court at Jabalpur.

19. Mr. Mandlekar has also brought to my notice a decision of this Court by Kotwal J. in Trikamji Damji v. Bhikalal (1960) Civil Revision Application No. 894 of 1960, decided by Kotval J., on December 23, 1960 in which the question whether a District Judge or an Additional District Judge is also required to be specifically empowered in order to exercise the powers of the election tribunal was touched. But it would appear from the main decision in the case that the real question that fell for decision was whether a Civil Judge, Senior Division, was required to be specially empowered in view of the fact that there was already a notification by the State Government of the C.P. & Berar empowering Civil Judges, Class I, to decide the election petitions under Section 20-A of the C.P. & Berar Municipalities Act. The learned Judge has clearly stated that the question whether it was necessary for the Provincial Government specially to empower the District Judge or the Additional District Judge did not arise in the revision application before him. There is a reference to another decision in Trimbaksa Ramasa v. Habil Mohamad (1960) Civil Revision Application No. 404 of 1S59, decided by Kotval J., on December 23, 1960 where it seems to have been held that the qualifying words do not govern the District Judge or the Additional District Judge. The judgment in that case was not brought to my notice and I have not had the benefit of knowing the reasons for that decision. But, in my opinion, I am bound by the precedents of this Court which have held, in interpreting the provisions in pari materia with Section 20-A of the C.P. & Berar Municipalities Act and Rules, that Election Tribunal acts as a persona designata. As such I am compelled to come to the conclusion that the empowerment is necessary in the case of all the authorities enumerated in Sub-section (2) of Section 20-A of the C. P. & Berar Municipalities Act. It does not appear that the previous decisions of this Court, which have a bearing on the subject, were referred to during the arguments in Trikamji v. Bhikalal. Ordinarily, I would have followed this decision; but in view of the fact that the question did not fall for consideration in that case and further in view of the fact that previous decisions of this Court having a bearing on the subject have not been brought to the notice of the Court, I have considered the matter afresh and come to a different conclusion-

20. Thus on a review of the several authorities, I have come to the conclusion that the contention raised by the opponent Nandkishore before the Election Tribunal was well-founded and, in any case, the Assistant Judge could have no jurisdiction to entertain or dispose of the election petition which was transferred to him. I have held that the District Judge himself could not have entertained the petition in absence of a special notification. But, even assuming that it was not necessary for the District Judge to be specially empowered by a notification to entertain an election petition, I find that the District Judge could be acting only as a persona designata and not as a District Court, and, as such, he would not have any power to delegate his functions to his Assistant Judge when the election authorities were to act as a persona designata. I hold that Section 16 of the Bombay Civil Courts Act does not empower a District Judge in such circumstances to transfer petitions entertained by him for decision to an Assistant Judge who could not have been empowered by the State Government to act as an Election Tribunal under Section 20-A(2) of the C. P. & Berar Municipalities Act.

21. On merits applicant Yeshwanta contends that on a true construction of the provisions of Section 10 (c) of the C. P. & Berar Local Government Act, 1948, read with Section 15 (j) of the C. P. & Berar Municipalities Act, 1922, it must be held that opponent Nandkishore was disqualified from being elected as a councillor. Now, it is an admitted position that Nandkishore was appointed as a Patel of village Peth Budhwara on January 22, 1952, under the provisions of Section 50 of the M. P. Abolition of Proprietary Rights Act, 1950 (Act I of 1951). Under Section 50 of the M. P. Abolition of Proprietary Rights Act, on the coming into force of that Act, every proprietor acting as sadar lambardar or lambardar before the date of vesting ceased to act as such and the Deputy Commissioner was required, in accordance with Rules made in this behalf, to appoint a person as Patel for each village on new terms prescribed by the Rules. The opponent Nandkishore was appointed a Patel under the Rules so framed as per notification No. 238-655/XXVIII, dated April 24, 1951. The method of appointment of Patel as prescribed by the Rules was that the Tahsildar was to issue a proclamation in the village inviting applications for the post and fixing a date and place for making an inquiry into such applications. After due inquiry the Tahsildar would make a report forwarding papers of inquiry to the Deputy Commissioner, and if there were more than one applicant found suitable for the office, the enquiring officer was required to ascertain the wishes of the recorded holders of occupied land of the village on a date to be specified by a proclamation. Votes were to be taken either by show of hands or by calling them individually and the record of votes secured by each candidate was to be made. The result was to be declared immediately. On receipt of the papers of the inquiry and the records of votes the Deputy Commissioner was required as far as possible to appoint the candidate who had secured the largest number of votes, to be the Patel. Thus, it would appear that even though the order of appointment was passed by the Deputy Commissioner, as far as possible the appointee was a person who was qualified and had secured the largest number of votes at the inquiry held for the purpose. Now, the Patel appointed by the Deputy Commissioner was required to execute a bond with one surety according to a form prescribed by the Rules. The Patel was also required to enter into an agreement to which both the Deputy Commissioner and the appointee were the parties. That agreement is in Form B prescribed by the Rules and it would appear from the text of the model agreement that the appointee engaged himself to keep the villagers contented and to do his utmost to extend and improve the cultivation of the village, to collect land revenue, taxes, cesses and other dues and in return to receive commission at the rate noted in the margin.

22. Now, it is admitted that the opponent entered into his office of Patel by the process prescribed under the Rules made under Section 50 of the M. P. Abolition of Proprietary Rights Act. It would, therefore, follow that in absence of anything more, so far as the appointment of the opponent as a patel of village Peth Budhwara was concerned, the opponent was not eligible to draw any remuneration by way of salary and was not remunerated by salary or honorarium. In fact there is an express mention in the agreement to be executed by the Patel that in return for the services to be rendered by him he was to receive a commission at the rate noted in the margin.

23. Neither party has led any oral evidence on record. In fact, even for the purpose of showing that opponent Nandkishore was appointed a Patel, the applicant Yeshwanta has only relied upon a certified copy of a register of Patels for village Peth Budhwara which shows the name of opponent Nandulal as having been appointed on January 22, 1952. Now, Mr. Mandlekar, the learned Counsel for the applicant, relied on the provisions of Section 10(c) of the C. P. & Berar Local Government Act, 1948, as creating the initial disqualification in a person from being elected as a councillor of Janapad Sabha. Section 10 enumerates the various disqualifications of a person from being elected as a councillor of Janapad Sabha and Clause (c) of this section is as follows:-

is a servant of Government and is remunerated by salary or honorarium (which expression shall not include fees or commission);.

Thus it will have to be first established that the opponent was a servant of the Government and then that he was remunerated by salary or honorarium which was not in the form of a commission or fees. If the applicant were to establish these facts then Mr. Mandlekar contends that the provisions of Section 15 (j) of the C. P. Municipalities Act, which enumerates the disqualification of a person to he elected a member of the Municipal Committee, would operate to disqualify the opponent Nandkishore. Now under Section 15 (j) no person shall be eligible for election or nomination as a member of a committee, if such person is under the provisions of any law for the time being in force, ineligible to be a member of any local authority. From this Mr. Mandlekar argues that Janapad Sabha is a local authority and inasmuch as opponent Nandkishore was disqualified from being elected as a councillor of the Janapad Sabha as he was holding the office of the servant of a Government remunerated by salary, Nandkishore has ipso facto become disqualified from being elected as a member of the Municipal Committee.

24. The learned Counsel for the opponent disputes that a Janapad Sabha is a local authority within the meaning of Section 15 (j) of the C. P. & Berar Municipalities Act. But, in my opinion, this contention is not well-founded. It is true that the Municipalities Act does not define a 'local authority'. But the expression 'local authority' is defined both in the C. P. & Berar General Clauses Act, 1914, and the C.P. & Berar Local Government Act, 1948. According to the definition in Section 2(29) of the C. P. & Berar General Clauses Act, a local authority means a municipal committee, or district council or other authority legally entitled to, or entrusted by the Government with, the control or management of any municipal or local fund. Under the Local Government Act, 1948, also, the definition under Section 2(g) of 'local authority' is given as meaning a municipal committee or a Panchayat, established under the Panchayats Act or a district council or local board constituted under the Central Provinces & Berar Local Government Act, 1920. Thus, it is true that 'Janapad Sabha' in terms is not enumerated as one of the local authorities under the General Clauses Act. But under Section 192 (d) of the Local Government Act, 1948, it is expressly provided that all references made in any State Act, rule, order or other instrument to the said Act or to a District Council, Local Board or Independent Local Board shall be read as if made to this Act or to the Janapad authority constituted under this Act, as the case may be. Thus, it is permissible to read the words 'Janapad Sabha' or 'Janapad authority' wherever it is used in respect of authorities which were previously known as District Council or Local Board authority. Thus the cumulative effect of these various definitions and statutory provisions is that a Janapad Sabha is a local authority within the meaning of Section 15(j) of the C. P. & Berar Municipalities Act, 1922.

25. But the crucial question is whether Nandkishore was a servant of the Government remunerated by salary. As I have shown above, a Patel appointed under Section 50 of the M. P. Abolition of Proprietary Eights Act could not be said to be a servant of the Government remunerated by salary. It is expressly stated in the agreement entered into by the elected Patel with the Government that in return of his services he will be paid a certain commission at the rate specified in the agreement. The use of the word 'commission' by way of remuneration excludes any contention that Nandkishore was being remunerated by salary or honorarium.

26. But what is contended by Mr. Mandlekar is that this agreement entered into between Nandkishore and the Government when he was actually appointed in 1952 must be treated as having been abrogated after the coming into force of the Rules framed by the Government of Bombay prescribing the duties and emoluments of patels appointed under Section 237 of the Madhya Pradesh Land Revenue Code, 1954 (Act II of 1955). Now, the M.P. Land Revenue Code came into force in October 1956. By this Code, certain sections of the M.P. Abolition of Proprietary Rights Act stood repealed and one of the sections so repealed was Section 50 of that Act, but the repeal did not affect the appointments made and the Rules framed or Notifications issued under the provisions of the enactments repealed. There was a saving clause which was put in the form of Section 239 of the Code. Section 239 of the Code is in the following terms:-

All rules, assessments, appointments and transfers made, notifications and proclamations issued, authorities and powers conferred, farms and leases granted, records-of-rights and other records framed or confirmed, rights acquired, liabilities incurred, times and places appointed, and other things done under any of the enactments hereby repealed shall, so far as may be, be deemed to have been respectively made, issued, conferred, granted, framed, revised, confirmed, acquired, incurred, appointed and done under this Code.

Thus the effect of the saving clause enacted in Section 239 of the Code would appear to be that the appointments of persons made under Section 50 of the M.P. Abolition of Proprietary Rights Act as Patels together with the agreements and terms and conditions of service under which such appointments were made would continue in force as if they were made under the Code. On the other hand Mr. Mandlekar argues that the notification by which these Rules were made and which is published in the Bombay Gazette dated October 31, 1957, itself says in its Preamble as follows:-

In exercise of the powers conferred by Section 237 of the M. P.. Land Revenue Code, 1954, and of all other powers enabling it in that behalf and in supersession of all the rules previously made on the subject, the Government of Bombay has made the following rules.

And then follow the Rules which are to be called 'M.P. Land Revenue (Village Patels) Rules, 1957'. On the basis of this preamble to the Rules, Mr. Mandlekar's contention is that it must be treated as if with the coming into force of these Rules, the notification also supersedes the previous Rules on the subject, viz. the rules made under Section 50 of the M. P. Abolition of Proprietary Rights Act governing appointments of Patels framed under that Act, Now, it is not possible to accept this contention of Mr. Mandlekar. The power to frame rules which is given to the State Government under Section 237 of the M.P. Land Revenue Code is a power to make rules with respect to appointment of Patels who are appointed under the Code. In fact the power to make rules is confined to the power to make rules regarding regulation of appointment of patels under Section 205(1) of the Code alone. Thus this power cannot be deemed to include the power to abrogate rules made under some other Act and which have been kept in force and operation by the statutory provision contained in Section 239 of the M.P. Land Revenue Code. So far as the terms and conditions of service of Patels appointed under Section 50 of the Madhya Pradesh Abolition of Proprietary Bights Act are concerned, their appointment and conditions of service were continued to be governed by the Rules framed under Section 50 of the Madhya Pradesh Abolition of Proprietary Eights Act. It is not, therefore, possible to hold that merely with the coming into force of the Rules framed under Section 237 of the Land Revenue Code, the terms and conditions of service of persons appointed as Patels under Section 50 of the M.P. Abolition of Proprietary Eights Act are altered or abrogated and that new rules apply to such Patels.

27. Assuming, however, that Mr. Mandlekar is right in contending that the new rules apply even to the Patels who are appointed under Section 50 of the M. P. Abolition of Proprietary Eights Act, the remuneration payable to such Patels is now regulated by Rule 9 of the new Rules, viz. M, P. Land Revenue (Village Patels) Rules, 1957, Now Rule 9 is as follows:-

The remuneration payable to a patel shall be at the rate of the percentage specified in column 2 of the Table hereto of the amount of gross revenue of the village concerned mentioned in column 1 thereof.

Then follows a Table which gives graduated percentage according as the gross revenue of the village is more or less. At the end it is stated by way of a proviso that the annual remuneration shall not be less than Rs. 36. Then comes Sub-rule (2) of Rule 9 which says that when a Patel is appointed temporarily under Rule 7 he shall be paid remuneration at the rate of rupees five per mensem. Sub-rule (3) says that the remuneration shall be paid annually from the Tahsil treasury concerned during the months of August and September and Sub-rule (4) provides for the payment of remuneration where more than one Patel is appointed for the same village in such proportion as may be determined by the State Government.

28. Relying on this scheme of remuneration evolved under the new Rules framed under the Land Revenue Code Mr. Mandlekar contended that what is payable to a Patel must be taken as salary and not as commission or fees. It is urged that 'salary' must be distinguished from 'commission' or 'fees'. According to Mr. Mandlekar a fee is a remuneration for a single act and is not a remuneration for anything which is a continuous obligation to perform a duty. Again, according to Mr. Mandlekar, commission is a remuneration or payment which is made with respect to one transaction or one duty but, it is pointed out, the duties imposed on a Patel are of varied character governing a large field of public activities and public service, as enumerated in Rule 10; it cannot be said that what! is paid to the Patel by remuneration is really a commission. According to Mr. Mandlekar even though the Patel receives his remuneration in the form of percentage of gross revenue it is in reality a salary even though the form of determining the amount of salary is by way of a percentage of the total revenue of the village. It must be admitted, there is considerable force in this contention of Mr. Mandlekar. But looking to the history of the office of Patel and the conditions under which he serves it is not possible to hold that what a Patel receives by way of remuneration under the Land Revenue Code is a salary. There are several features of this remuneration which cannot really be consistent with the holder of a salaried post. For one thing as is rightly pointed out by Mr. Padhye for the opponent, a salary is not generally paid once in a year which is the mode of payment of remuneration of a Patel. Again, even though the work is the same, the remuneration is made to depend on the total quantity of gross revenue in a village which again is more consonant with its character as a commission than a salary. Even though a minimum is fixed at Rs. 36 per year it is difficult to conceive of a responsible post under the Government which should entitle the recipient of such post to a paltry sum of Rs. 36 per year as a salary. Again it is left to the utter discretion of the Government to fix the proportion of division of the remuneration when more than one person is working in a village as Patels. All these provisions of fixing of remuneration, the mode of payment, the paltry amount fixed as minimum remuneration would go to show that what is being paid to the Patel by way of remuneration is really a commission or fees and not a salary in the accepted meaning of the term.

29. The reason for this may be traced to the history of the office of Patel which has come to be recognised under our system. As provided by the Rules under the M.P. Abolition of Proprietary Rights Act, the Patel was an elected officer and a person of means and having influence in the village. It is not expected that such a person would be attracted to this office by reason of the paltry salary that was paid for his work; it was an office of dignity and influence which gave a status to the recipient of that office. Previously in Central Provinces a Lambardar or Sadar Lambardar was entrusted with the duties of a mukadam. In Berar the office was hereditary and was held by the holders of the family who had the vat an-rights of patelki. Thus, in my opinion, in the context in which the remuneration of the office of the Patel has come to be fixed even under the M. P. Land Revenue Code, it cannot be said that what was drawn by the Patel by way of remuneration was drawn as salary. In this view it is not possible to uphold the contention of Mr. Mandlekar that the opponent Nandkishore was a servant of the Government who was remunerated by salary. I, therefore, uphold the finding of the learned trial Judge that the opponent was not a servant of the Government remunerated by salary. In this connection the decision relied upon by the learned Assistant Judge, viz. the case reported in Jawaharlal v. Dy. Commissioner also lends full support to the line of reasoning which has been accepted by the learned Judge.

30. Thus, the result is that this civil revision application fails and is dismissed with costs.


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