1. Both these petitions under Article 226 of the Constitution have been filed from the orders of fee First Additional District Judge at Indore on two election petitions, fee first (41) is an order of dismissal of fee petitioners' election petition under Rule 43 of fee Cantonment Electoral Rules in regard to an ejection to the Cantonment Board at Mhow. The other petition (No. 43 of 1965) is by fee elected member whose election to the same cantonment board has been set aside on an election petition by the defeated candidate who is opposite party No. 1 in this Court. While the facts in controversy in the two cases are different they have one common point of law which has been raised as a preliminary issue here and which alone is being decided at this stage.
2. The question is whether a petition under Rule 43 of the Cantonments Electoral Rules can be enquired into and disposed of under Rule 45 by an Additional District Judge to whom the District Judge transfers it, there having been no notification by the State Government prescribing the rank of fee 'Subordinate Judicial Officer' to whom the petition can be so transferred.
3. This resolves into consideration of, firstly, whether the purport of the phrase 'District Judge' used in Rules 43 and 45 is fee same as that of the words 'District Court' used in certain other enactments, m particular, the Hindu Marriage Act of 1956, which has been the subject-matter of some rulings in this High Court; secondly, whether Rule 45 automatically empowers the District Judge without any notification by State Government to transfer to an Additional District Judge who may be of equal status m judicial matters though subordinate in respect of steps of a ministerial nature, or whether fee notification is necessary not only to prescribe the status of fee subordinate judicial officer to whom a transfer might be made, but to enable the transfer itself.
4. All that need be stated of the facts for our purpose is that after the test elections be the Mhow Cantonment Board there were these two petitions with the results already mentioned. It is of interest to note that in one of them, that is fee one out of which Petition No. 43 arises, objection was taken before fee inquiry itself to fee competency of the Additional District Judge, while in the other no such objection was taken. This is of no practical significance now because the position taken by the petitioners in both fee cases is that the Additional District Judge was basically incompetent to hold fee inquiry and accordingly acquiescence could not have given him any jurisdiction. That Court, however, assumed jurisdiction on the ground feat it was functioning under fee Civil Courts Act, Section 7(2) of which runs thus:
'7(2) An Additional District Judge shall discharge any of the functions of a District Judge, including the functions of fee Principal Civil Court of original jurisdiction, which fee District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise fee same powers at fee District Judge.'
The position taken here is that this is an ad hoc tribunal outside fee ambit of fee Civil Courts Act and fee powers of fee District Judge under the Civil Courts Act have no application; the powers to transfer fee petitions, if any, have to be derived from the special statute itself or the statutory rules made thereunder. Even the contesting opposite party in Petition No. 41 has agreed with the petitioners that the Additional District Judge had no jurisdiction. The opposite party in Petition No. 43, however, has supported his jurisdiction on the analogy of the 'similar' provisions in the Hindu Marriage Act under which this High Court has held that the Additional District Judge is competent to hear the cases transferred to him by the District Judge.
5. The first point to note in this connection is that the words used in Rules 43 and 45 are not 'District Court' or 'the Principal Civil Court of original jurisdiction' or the like, but 'District Judge' which according to several High Courts have been understood to mean a persona designate, in other words, Rules 43 and 45 do not assign one more additional function to the highest original civil courts of the district already functioning under the Civil Courts Act, but they create a separate ad hoc tribunal for the express purpose of enquiring into and disposing of these election petitions,
This view is fully supported by the very wording of the two rules:
'43. A petition calling in question thevalidity of an election or the return of a particular candidate may be presented in writingto the District Judge of the district withinwhich the election has been held (or wherethere is no District Judge, to such JudicialOfficer as the State Government may appointin their behalf) within seven days.'The latter half of the Rule is of no practicalconsequence now though it was of very greatimportance before 1950 when all over thecountry there were cantonment areas many ofthem within the territories of the erstwhileIndian States where there was no DistrictJudge properly so called Otherwise the meaning is clear enough namely, that the petitionwas to be presented to the District Judge independently of his happening to be the highestoriginal civil court of the District.
Similarly Rule 45 which runs thus:
'46. Where a petition has been presented under Rule 48 and the security deposited as required by Rule 44, the District Judge (or the officer appointed in accordance with Rule 431, or any Judicial Officer subordinate to him and not below such rank as the State Government may by notification prescribe in this behalf to whom the District Judge may transfer the petition shall after notice to all candidates for the ward concerned at the election, hold such inquiry as he deems necessary.' speaks of the 'District Judge' or 'Officer appointed in accordance with Rule 48' Again, the 'subordinate judicial officer' for this purpose has to be designated by the State Government by notification and not handed over the case by the District Judge himself by means of an order under the Civil Courts Act.
It is also of interest to note that these tribunals have been under Rule 46 given the powers of a Civil Court for purposes of summoning and enforcing the attendance of witnesses. 'As if he were a Civil Court' would not have been used if already the District Judge or the subordinate judicial officer designated by the State Government was a Civil Court properly so called functioning under the Civil Courts Act; them the powers now given by Rule 46 would be inherent and the Courts would be the Civil Courts in the fullest sense of the terms and not merely quasi-civil Courts for the limited purposes mentioned in that Rule.
6. A further point in this connection is that even where we have judicial officers who for the purposes of such judicial functions are of the status of the District Judge but are subordinate to him in ministerial matters, still this rule does not empower them to enquire and dispose of election petitions. The State, Government is to designate the judicial officers who have of course to be the subordinates of the District Judge: but whether or not they are of the same status for certain purposes they gel their jurisdiction not by virtue of that status but on the strength of the notification designating them.
7. As against this view it has been urged that there is a body of case law both from this High Court and from others that it was competent for the District Judge to transfer cases under special enactments to the Additional District Judge and for the latter to dispose of them. We have naturally in this regard to look at the one hand, at the wording of the Civil Courts Act and on the other, the relevant provisions of the special enactments as well. Each State has got its own Civil Courts Act which broadly speaking falls into three classes first, we have the pattern of which the Madhya Pradesh Act is typical where the Additional District Judges are not merely part of the Court of the District Judge, that is, the principal original Civil Court in the district, but are a separate class of Civil Courts, then there is the pattern where the Additional District Judges are only the limbs of the District Court; and thirdly, as in the Punjab, where an 'Additional Judge' but not the 'Additional District Judge' is expressly mentioned, a situation which has been examined in the Supreme Court ruling reported in Kuldip Singh v. State of Punjab, AIR 1956 SC 391 Generally speaking this third type is only a slight variant of the second because the 'Additional Judge' is a Judge 'additional to the District Judge' in the same Court that is the principal original civil Court of the district.
8. We are however, concerned in this connection with the first type where the Additional District Judge is a separate Court competent to exercise powers that are assigned to it under Section 7(2) of the Civil Courts Act. There are a number of cases in this Court under the Hindu Marriage Act of 1955 where the question was raised whether the petitions under Section 9 or 13 of that Act might be transferred to the Additional District Judge and might be disposed of by them Differing from an earlier Punjab decision which in its turn has been subsequently distinguished by the same Court, this High Court has held in Dharam Sheela Bai v. Ram Dayal, 1961 MPLJ 979: (1961 (2) Cri LJ 236) and Laxmansingh T. Kasharbai, 1965 MPLJ 702: (AIR 1966 Madh Pra 166) that having regard to fee wording of Section 19 of that Act fee District Judge court competently transfer petitions Judge and the latter has jurisdiction in his tun to dispose them of Section 9 of that Act enables fee husband or fee wife, as the case may be, to apply by petition for restitution of conjugal rights. Similarly. Section 13 speaks of a decree of divorce dissolving the marriage, while Section 19 speaks generally-
'Every petition under fete Act shall be presented to the District Court within fey local limits . . .'
It is of interest, further, to note that in all the other sections, like 23, 24, 25, etc., the word used is 'Court' and not 'Judge'. Accordingly this High Court has ruled-
'Under Section 7 of the M.P. Civil Courts Act although it is fee Court of fee District Judge, which is the principal Court of original civil jurisdiction, the Additional District Judge is invested with fee power to discharge any of the functions of the District Judge including fee functions of the principal Court of original civil jurisdiction, which the District Judge may assign to him. And as soon as fee assignment is there the Additional District Judge has jurisdiction to exercise the same powers as the District Judge' (1961 M.P.L.J. 979). The effect of the second decision, namely, 1965 MPLJ 702: (AIR 1966 Madh Pra 156), is the same There was a complication in that the State Government had issued a notification that the Additional District Judge also could fry cases under the Hindu Marriage Act. However, that case itself has been disposed of before the making of the notification so that the Additional District Judge could not get jurisdiction from the notification. But it was held that he could get it on the strength of the order passed by the District Judge under Section 7(3) of the Madhya Pradesh Civil Courts Act.
9. Broadly speaking, with the exception of Janak Dulari r. Narain Dass, AIR 1959 Punj 50, this has been the position taken in the other High Courts also.
10. The real problem here is not about the competency of the Additional District Judge to whom a case under the Hindu Marriage Act has been transferred, but whether the provisions in the Cantonment Rules, that is, Rules 43 and 45 are so similar to the provisions in this regard in that Act as to enable us to apply these rulings. A bare comparison of these provisions would show that this would not be proper The basic difference between the 'District Court' or the 'Court of the District' or the 'principal original Civil Court of the District' on the one hand, and the 'District Judge' on the other, used in the separate enactments, has already been pointed out. In the Civil Procedure Code itself the position is peculiar because the 'District Judge' there is already named the principal original civil court of the District. But in the special enactments the 'District Judge' stands as a persons designata and the functions assigned to him are ad hoc functions exercisable by that person and not functions additional to those allotted to him under fee Civil Courts Act of the State concerned.
11. The distinction is somewhat fine; but as the wording of fee rules stands and in the absence of an appropriate notification by State Government fee Additional District Judge had no jurisdiction to enquire into fee election petitions. Accordingly, these two petitions under Article 226 are allowed and it is held that the election petitions have not been properly disposed of. The situation accordingly reverts to the position in which fee petitions stood before fee District Judge transferred them and he should dispose them of in the manner prescribed by law. We would suggest feat in all such controversial situations fee District Judge should himself hold inquiries and dispose of fee petitions so that after fee considerable expense, public time and delay fee matter may not have to go back as in fee instant cases.
12. In the special circumstances of thecases no order is made as to costs and the parties shall bear their own expenses.