1. This special civil application is referred to this Full bench as it raises a question of some importance as to competency of the Clerk of Court of the District court, and its other officer to receive election petitions, in the absence of the District judge on leave, to whom the aggrieved person has to apply for challenging the validity of election of any Councilor under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act of 1961 (hereinafter referred to as the Act.).
2. Election to Zilla Parishad of Buldana took place on 27th May 1972. The respondent No. 1 was declared elected on 2-6-1972 from the electoral division No. 25. The petitioner and two others, the voters, challenged the validity of his election by application dated 16-6-1972, District judge, Buladana was on leave on that date and for some time thereafter. The petitioner therefore lodged three sets of separate applications , one with Clerk of Court of the District Judge, Buldana was on lever on that date and for sometime thereafter. The petitioner therefore lodged three sets of separate applications, one with the Clerk of Court of the District Court, Buldana , another with the civil Judge, Senior Division, Bulana, them in charge of the District Court in the absence of the District Judge under Section 35 of the Bombay Civil Courts Act of 1869 , hereinafter referred to as in the Civil Courts Act, and the third one with the only Assistant judge in the District posted at Khamgaon. on return from leave , the District judge transferred these two applications filed in his Court to the Assistant Judge for trial under Section 27 (2). All three applications were separately numbered and tried together. The same were however rejected on 23-3-1973 on the preliminary point that acceptance thereof by any officer other than District Judge was legally incompetent.
3. Now candidates at the election, or voters, intending to challenge such election have to apply to the District Judge' under Section 27 (1) of the Act within 15 days of the declaration of the election results and enquiry thereon is to held under Section 27 (2), by a Judge not below the rank of an Assistant Judge to be appointed by the Government specially or generally . The Assistant Judge, Khamgeon is so appointed to try such applications under Notification No. G.N.C. and R.D.D. No. 1 LVR -1062-Q dated 2-4- 1962.
4. MR. Palshikar, the learned Advocate for the petitioners, contend that , District Judge and the Assistant Judge, having been empowered to act under Section 27 of the Act in their official capacities, as such District and Assistant Judge, both the officers and the intending applicants are entitled to avail of the establishment attached to their office under the Civil Courts Act, for all their ministerial functions. The applications lodged with the Clerk of Court and Civil Judge, (Senior Division ) in the absence of the District Judge thus were valid.
5.Now Section 27 of the Act is a self-contained code dealing with the election disputes. It will be an error to identify the District Judge or the Assistant Judge either with the District Court over which they preside or with the individuals who happen to hold these posts at any given time. That these officers act in their official capacities admits of no doubt. This section or other provisions of the Act do not provide for any different practice, procedure or establishment for discharging their judicial or ministerial functions from the one they follow as such functionaries under the Civil Court Act. Election Rules are silent on these points, Absence of any District Judge on a given date or for larger period than 15 days is not a rare , unusual or unforeseen phenomena. Omission to provide for such contingency by the legislature cannot be said to be just accidental.
6. The words District or Assistant Judge are not defined under the Act nor these officers are the creature thereof. District Judge is appointed by the Governor under Article 233 of the Constitution in consultation with the High Court. The Constitution of his Court is regulated by the Civil Courts Act which makes provisions for ministerial work, i.e. the work of the Court over which he presides is regulated by the Civil Procedure Code . Legislature must be presumed to be aware of the manner in which such officers are required to discharge their official, ministerial and judicial functions as also the practice and procedure integrally and incidentally connected with these offices. From the absence of such separate provisions in the Act for these matters, the Legislature must be presumed to have intended them to follow the same practice, procedure and norms while discharging the functions under Section 27 of the Act and also intended to make available to them the services of the same establishment placed at their disposal under the Civil Courts Act by virtue of their such offices. The said establishment is the integral and indispensable incident of the very offices they hold. Having entrusted the election disputes to them by virtue of their offices. Legislature must be deemed as well to have considered it unnecessary and superfluous to make any provision for any separate ministerial establishment.
7. Under Section 40 of the Civil Courts Act, Clerk of Court is authorised to receive plaint etc. subject to supervision and administrative control of the District Judge . The High Court has framed rules called Civil Manual in exercise of the powers under Section 39 of the Civil Courts Act further elucidating how the ministerial functions of the District Judge are to be discharged. True, these are matters connected exclusively with the Civil court work over which District or Assistant Judges are to preside. But the District Judge himself is defined , under Section 5 of the Civil Courts Act, to be the officer who presides over the District Court, which under Section 7 happens to be the principal Court of Civil Jurisdiction in the District within the meaning of Section 3(15) of the Bombay General Clauses Act of 1904. Such ministerial staff operate as an adjunct to the office of the District Judge under the provision of Civil Court Act and the Civil Manual framed thereunder. One implication, of entrusting the election dispute to the officer, ex officio in this set up, is to make the existing machinery of his office also incidentally available to the officers for their ministerial part of the so entrusted election disputes work, and also to the litigants for reaching the said officer.
8. In the Case of National Telephone Co. v. Post Master General, reported in 1973 AC 546 , the House of Lords held that once a matter. ordinarily not cognizable, is entrusted to any Court of records for trial, all the ordinary incidents of the practice and the procedure of the said Court including the right of appeal becomes applicable to the said matter also. Ratio of this case is approved by the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. reported in : 4SCR1028 . It is true, the election dispute in the present case is entrusted to the District Judge and the Assistant Judge and not to the District Court as such and therefore , the question of the incidence of right of appeal being applicable would not arise. but entrustment under Section 27 is to the District Judge ex officio and not to the person holding the office. There is, therefore, is no reason why the basic principle underlying the ratio of these cases should not apply to the situation here and ministerial establishment attached to his office should not be available to the District Judge s also to litigants, as plain incidence of entrustment of work to District Judge in his official capacity.
9. Mere receipt of the election application does not involve any judicial or quasi-judicial function. Clerk of Court of the District Court was thus competent to receive the election application on 16-6-1972 on behalf of the District as on officer of the establishment attached to his office in the same manner as he was competent to receive plaints etc. for his office. The fact that the authority is essentially meant for the ordinary Civil Court work is besides the point. What is relevant is that he is part of his establishment, which should be available for the functions of the District Judge, as such District Judge. While discharging his function under Section 27, District or Assistant Judge has no independent existence excepting as such office holders. Such receipt of applications must be deemed to have been valid and legal. The fact that the District judge did not happen to return from leave before limitation expired, or otherwise took some time to look into the same or to take cognizance, thereof otherwise, is wholly irrelevant, once the applications are found to have been delivered to the officer duly competent to receive on his behalf as the indispensable process of the functioning of his office.
10. Our view find some support in, at any rate, three decisions of the Division Bench of our High Court. In the case of Medharao Tatya v. Collector, reported in 1964 Mah LJ 42, this Court held that Section 27 of the Act does not prevent such applicant from sending election petitions by post. It is however hinted therein that such process involves the risk of application not reaching the District Judge in time. With respect we find ourselves in a remount with the former, but not with the latter view. In our opinion application cannot become time bared once it is properly addressed to the District Judge and posted and applicant does all in his power to censure its receipt at the place where District Judge is known to be available. Applicant cannot have control over District Judge or his movements and his mere absence from the place of his work for whatsoever reason cannot render the application invalid, even if District Judge fails to deal with the same or take cognizance thereof, in time. In the case of Vinayak v. Sixth Joint Civil Judge, reported in 1965 Mah LJ 10, application presented to the Civil Judge, Senior Division at Nagpur, as per prevailing practice based on the Constitution of the Courts under Civil Courts Act and the orders thereunder, was found to be legal as if received by him on behalf of the Civil Judge, Junior Division, who alone was competent under the relevant enactment to receive such election petitions. In the case of Hambirrao Bahurao v. Balisha, reported in : (1960)62BOMLR749 , receipt of election application by the office of the District Court for the District Judge was found, not to be fatal, though irregular. In the view we are taking, we are unable to see any irregularity therein.
11. Section 35 of the Civil Courts Act enables Assistant Judge, Civil Judge, Senior Division or Senior Civil Judge, to be in charge of the District Court during the absence of the District Judge and also enable s him to perform his duties in the matter of receiving plaints, appeals etc. and the like' . These officers however cannot be said to be the part of the ministerial establishment of the District Judge as the Clerk of Court is, Validity, of such officers accepting such application on behalf of the District Judge, is open to grave doubts. There is much force in the contention of Mr. Deshpande, learned Advocate for the respondent that power under this section is intended to meet the emergent needs of regular Court work as distinguished from other statutory functions of the District Judge.
12. Mr. R.R. Deshpande, however strongly relied upon the judgment of the Division Bench of this Court reported in Vasudeo Genu Vartak v. Returning Officer : AIR1968Bom259 . There the appeals against the orders of the Returning Officer were required to be presented to the District Judge under Section 14 read with Rule 20 under the Act . Office of the District Judge was vacant on the relevant date, the incumbent having been transferred and successor still having not taken the charge. Assistant Judge in charge accepted the appeals. But such presentation was found by the District Judge while disposing of the appeals on merits, to be invalid. The High Court in exercise of the powers under Articles 226 and 227 reversed the decision on merits treating the application to be against the order of the Returning Officer itself, but upheld the view of the District Judge that Assistant Judge was not competent to receive the appeals. When appellate power was vested under Rule 20 in the District Judge as person as designate. The view slightly runs counter to the views expressed by the other Division Benches in the above cases in which Judges were found to be acting as persona designate but receipt of the election petition by others from them was not found to be fatal. That had necessitated this reference to this Full Bench. Mr. Deshpande naturally relies on this case and contends that District Judge under Section 27, being a persons designate, applications lodged with other officers than District Judge were incompetent.
13. Mr. Palshikar relied on the judgment of the Supreme Court in the case of Central Talkies v. Dwarka Prasad reported in : 1961CriLJ740 and contended that District Judge not having been appointed in his individual capacity., cannot be said to be persona designate. The Supreme Court in that case approved of the connotation of the word person designate as given in Osborn's Concise Law Dictionary and held that District Magistrate under the provisions of the U.P. (Temporary ) Control of Rent and Eviction Act, having been appointed in his official capacity, was not a persona designate. Judged by this test, District Judge or for that matter even the Assistant Judge under Section 27 of the Act cannot be said strictly to be persona designate. However, this expression also is invariably used to distinguish specially assigned statutory functions from the ordinary functions of the officer in question and to emphasis their immunity from administrative or judicial interference in appeal or revision by his superiors in the hierarchy of the set-up to which such officer ordinarily belongs; and also his disability to delegate such statutory functions to any one else unless so specifically empowered by the said statute. This has to be so, as any such process is bound to be inconsistent with the very creation of special Tribunal for the purpose, at the exclusion of the ordinary Courts. This has however nothing to do with ministerial functions being discharged by the establishment attached to the very office of which such statutory work happens to be entrusted in the official capacity. It is difficult to imagine of any inconsistency in such a situation. In consistency may however arise if such machinery is availed of by him even when the work is entrusted to the District Judge in his individual, as distinct from official capacity. Entrustment of work to him in that case will be as a persona designate in the true sense of the term. Even if the District judge under Section 27 is thus considered to be a persona designate in the above limited sense, that by itself cannot disable him from availing of it for reaching the District Judge and lodging applications with him through the Clerk of Court as the head of the said establishment. In Vasudeo's case : AIR1968Bom259 appeal was presented to the Assistant Judge. We have indicated how Assistant Judge. We have indicated how Assistant Judge. We have indicated how Assistant Judge, his higher rank notwithstanding, is not the part of the ministerial establishment of the District Judge Secondly the Supreme Court judgment in Central Talkies case (supra) also was not brought to the notice of the learned Judges and the sense in which such designated officers can be held to be acting persona designate also did not fall for their consideration. The question whether clerk of the Court could have accepted the appeal was not considered . In fact consideration of this point in detail was not necessary in view of their decision on merits. Vasudeo's case is thus distinguishable. Even so , the case does lay down that appeal could have been presented only to the District Judge. We do not think this to be correct. With respect, we prefer the view expressed in Vasudeo's case (supra) and hold that filing of such election petitions with any such designated officer personally alone is not indispensable . It can be filed with the District Judge or the designated officer or with the competent officer of the establishment of his office. We also further hold that all ministerial functions of such designated functionary can be discharge by him himself or through the establishment attached to his office. With respects, we also broadly approve of the reasoning of the Division Bench , expressed in the referring order Dated 31-1-1975/
14. Mr. Deshpande then relied on the judgment of the Supreme Court in the case of Jagan Nath v. Jaswant Singh : 1SCR892 and contended that rights under the election are creatures of the Statute and petitioners cannot be permitted to travel beyond the said law to enforce any such statutory rights. There cannot be any quarrel with this proposition. But question of travelling beyond the election law, does not arise in this case once it is held that power to accept such applications by the Clerk of Court in this case is the incidence of functions being entrusted to District Judge in his official capacity. In our opinion, the Assistant Judge was in error in holding that the election petition were not properly presented.
15. In this view of the matter, this application deserves to be allowed. The rule is made absolute. The case will now be remanded to the Assistant Judge, Khamgaon for disposal in accordance with law. The Assistant Judge will dispose of these matters as early as possible. In the circumstances of this case, there will be no orders as to costs.
16. Petition allowed.