Skip to content


Keshri Prasad Vs. Bodhraj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCase No. 164 of st. 2006
Judge
Reported inAIR1951Raj45
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Uttar Pradesh Municipalities Act, 1916 - Sections 22 and 22(1); General Clauses Act, 1897 - Sections 6 and 24; Jhalawar State Municipal Rules
AppellantKeshri Prasad
RespondentBodhraj
Appellant Advocate B.P. Agarwal, Adv.
Respondent Advocate G.C. Kasliwal, Adv.
DispositionApplication dismissed
Cases ReferredVensimal Tarachand v. Karachi District Local Board
Excerpt:
.....filed their objections under rule 15, jhalawar municipal election rules in the court of the first class magistrate, bhawanimandi on 10-9-1948. the first class magistrate, bhawanimandi, held certain enquiries into the matter. the magistrate first class, bhawanimandi, before whom the aforesaid application of keshri prasad and others was pending, transferred the case to the district judge, jhalawar, on 19 7-1949. the district judge having heard the parties made an order on 10-10-1949 directing the petitioners to put their pleadings in proper form before 26-10-1949. this period was further extended by three days and on 29.10.1949, when the petitioners failed to comply with the directions given by the district judge, he dismissed the petition. the argument of the learned counsel for the..........filed their objections under rule 15, jhalawar municipal election rules in the court of the first class magistrate, bhawanimandi on 10-9-1948. the first class magistrate, bhawanimandi, held certain enquiries into the matter. in the meantime on 16-2-1949, the united state of rajasthan passed an ordinance repealing the jhalawar state municipal election rules of 29-3-1943, and applying the u. p. municipal act of 1916 as amended up to u. p. act i [1] of 1945 with certain modifications to the territories of the rajasthan state.2. under the jhalawar state municipal rules, petitions relating to objections against elections were to be heard and decided by the first class magistrate having jurisdiction at the place. but under the new ordinance such petitions were cognisable by the district judge.....
Judgment:
ORDER

Ranawat, J.

1. Under the Jhalawar Municipal Election Rules dated 29-3-1943, an election was held at Bhawani Mandi on 3-9-1948, of the members of the Municipal Committee of Bhawani Mandi and Bodhraj and Tribhawan Dayal were declared elected by the Returning Officer the same day. Keshari Prasad, Asabhai and Keshrimal who were unsuccessful at the election filed their objections under Rule 15, Jhalawar Municipal Election Rules in the Court of the First Class Magistrate, Bhawanimandi on 10-9-1948. The First Class Magistrate, Bhawanimandi, held certain enquiries into the matter. In the meantime on 16-2-1949, the United State of Rajasthan passed an Ordinance repealing the Jhalawar State Municipal Election Rules of 29-3-1943, and applying the U. P. Municipal Act of 1916 as amended up to U. P. Act I [1] of 1945 with certain modifications to the territories of the Rajasthan State.

2. Under the Jhalawar State Municipal Rules, petitions relating to objections against elections were to be heard and decided by the First Class Magistrate having jurisdiction at the place. But under the new Ordinance such petitions were cognisable by the District Judge having jurisdiction in the place. The Magistrate First Class, Bhawanimandi, before whom the aforesaid application of Keshri Prasad and others was pending, transferred the case to the District Judge, Jhalawar, on 19 7-1949. The District Judge having heard the parties made an order on 10-10-1949 directing the petitioners to put their pleadings in proper form before 26-10-1949. This period was further extended by three days and on 29.10.1949, when the petitioners failed to comply with the directions given by the District Judge, he dismissed the petition. The petitioners have filed this revision petition under Section 115, Civil P. C., against the order of the District Judge, dated 10-10-1949, by which the petitioners were directed to put their pleadings in proper form.

3. A preliminary objection was raised by the counsel on the opposite side that no revision under Section 115 lay against an order of the District Judge acting under the provisions of the Municipal Act as a persona designata.

4. Section 22, Sub-clause (1), U. P. Municipalities Act, 1916, as adapted to Rajasthan runs as follows:

'An election petition shall be heard by the District Judge within whose jurisdiction the Municipality concerned is situated, unless some other person or tribunal has been appointed by rule in this behalf, and at a place in the district within which such Municipality is situated.'

It may be pointed out that a District Judge, acting under the provisions of Section 22, Municipalities Act, is not a civil Court subordinate to the High Court within the meaning of Section 115, Civil P. C. but it is an authority created under the Municipalities Act. The mere fact that the person designated under Section 22 happens to be the District Judge does not in any way make his position different. In Masoon Ali Khan v. Ali Ahmed Khan, A. I. R. (20) 1933 ALL. 764 : (55 ALL. 1008) Mukerji and Bennet JJ. held that:

'A District Judge hearing an election petition is not a a civil Court but a persona designata, even though he has the powers and privileges of a civil Court; and hence he is not under the superintendence of the High Court under Section 107, Government of India Act.'

Similarly in Keshav Ramchandra v. Municipal Borough, Jalgaon, A. I. R. (33) 1946 Bom. 64 : (I. L. R. (1946) Bom. 143), it was held that a Judge acting under Section 15, Municipal Boroughs Act is not a Court, but a persona designata, and the High Court has, therefore, no jurisdiction to revise his order under Section 115, Civil P. C. or to correct any mistake committed by him whether he exercises jurisdiction not vested in him, or fails to exercise jurisdiction vested in him, or acts with material irregularity in the exercise of his jurisdiction. In Sholapur Municipality v. Tulja Ram Krishnasa, A. I. R. (18) 1931 Bom. 582: (55 Bom. 544), a Division Bench of the Bombay High Court held that where a Judge or a Presiding Officer of a Court as distinguished from the Court itself, directed to perform any function of an authority created by a statute, such Judge may be considered as a persona designata and not a Court, but where a civil Court subordinate to the High Court, as constituted, has authority to decide the rights between the parties and is directed to perform judicial functions, it is difficult to hold that such a Court is a persona designata and not a Court subordinate to the High Court. This was a case of a Court adjudicating in the matter of compensation under the Land Acquisition Act. The position of a Court under the Land Acquisition Act is different from the one Under Section 22, Municipalities Act. under Section 22, an authority has been designated by the Act to deal with certain matters regarding election and it cannot be said that the authority so constituted is a subordinate Count within the meaning of Section 115. Civil P. C. The counsel for the petitioner has put his reliance on the authority of a case reported in Vensimal Tarachand v. Karachi District Local Board, A. I. R. (35) 1948 Sind 116: (I. L. R. (1947) Kar. 117), wherein it has been held that where a Judge of the Karachi Small Cause Court, as a persona designata under Section 17, City of Karachi Municipal Act, acts without jurisdiction, he ceases to act as a persona designata and becomes a Court subordinate to the Chief Court under Section 115, Civil P. C., and the Chief Court has power to revise his orders.

5. It has been argued that the First Class Magistrate at Jhalawar continued to have the jurisdiction to deal with the petition of Keshri Prasad and others even after 16-2-1949, when, the new Municipal Ordinance was enacted, by virtue of Sections 6(e) and 24, General Clauses Act, and that the District Judge, Jhalawar, had no jurisdiction to deal with this case. It is claimed that since the District Judge had no jurisdiction, he cannot be treated as a persona designata, but the action taken by him in this matter is to be regarded that of a Court subordinate to the High court.

6. Section 6(e), General Clauses Act provides that where an Act repeals any enactment, then unless a different intention appears, the repeal shall not affect an investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. The legal proceedings that were pending in the Court of the First Class Magistrate, Jhalswar, at the time the Jhalawar State Municipal Rules were repealed, did not become invalidated because of the repeal of the Municipal Rules, but this would, however, not continue the jurisdiction of the First Class Magistrate, Jhalawar, when by the new Act a different authority was constituted in his place. The District Judge was under the new Act given the jurisdiction to deal with such matters. It was, therefore, not contrary to the provisions of the new Act that the First Class Magistrate transferred the proceedings which were pending before him to the Court of the District Judge who, under the new Act, was invested with such jurisdiction. Section 24, General Clauses Act relates to the matter of the continuance of order and appointments under enactments repealed and re-enacted. The appointment of the First Class Magistrate under the old Jhalawar State Municipal Rules would have continued under the provisions of Section 24, General Clauses Act, had it not been provided by the new Act that such jurisdiction shall be exercised by the District Judge. The argument of the learned counsel for the petitioner therefore does not appear to be sound that the First Class Magistrate continued to enjoy to enjoy the jurisdiction to deal with this case even after the passing of the new Municipal Ordinance. It cannot be said that the District Judge, Jhalawar, had no jurisdiction to deal with this matter. The question, therefore, does not arise of exceeding the jurisdiction, and it is not necessary to consider the eorrectness of the authority of the decision in Vensimal Tarachand v. Karachi District Local Board, A. I. R. (35) 1948 sind 116: (I. L. R. (1947) Kar. 117).

7. The District Judge, Jhalawar, was a persona designata under Section 22, U. P. Municipalities Act, 1916, as applied to the United State of former Rajasthan, and his action in dealing with election petitions cannot be revised under Section 115, Civil C. P.

8. This application, therefore, is not maintainable and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //