1. This is a Rule calling upon the opposite party to show cause why an order of the District Judge of the 24-Parganas dismissing the petitioner's application under Section 36 of the Bengal Municipal Act should not be set aside.
2. The petitioner's name was entered in Voters' List for Ward No. 4 in the North Barrackpore Municipality. He stood as a candidate in Ward No. 7 and was defeated, He then filed this application under Section 36 of the Bengal Municipal Act. The learned Judge, without going into the merits of the application, held that the petitioner had no locus standi to tile it and, accordingly, dismissed it. The petitioner then obtained this Rule, which in due course came on for hearing before S.K. Ghose, J. He came to the conclusion that the learned District Judge was wrong in his interpretation of Section 36; but as the Rule raised a very important question whether this Court has power to interfere with the order of an Election Court, he sent the case to a Division Bench, and it has been argued before us.
3. The first question for our decision is whether this Court has power to interfere either under Section 115 of the Civil Procedure Code or under Section 107 of the Government of India Act.
4. We are clearly of opinion that the terms of Section 13 of the Bengal Municipal Act are sufficiently wide to exclude interference by this Court under Section 115 of the Code. But a further question arises whether an Act of the local legislature passed with the previous sanction of the Governor-General is competent to take away any of the powers of this Court. As this point was not argued before us and as, in our opinion, it is only necessary for the purposes of this Rule to consider the applicability of Section 107 of the Government of India Act, we do not express any opinion on the point.
5. It is not disputed that the local legislature cannot take away any of the powers conferred on this Court by Section 107 of the Government of India Act. In order to determine whether we have those powers in this case, it is necessary to decide whether the Court contemplated in Section 36 of the Bengal Municipal Act is the Court of the District Judge or the District Judge referred to therein is merely a persona designata. It is obvious that if he is the latter, he is not subject to the appellate jurisdiction of this Court. In order to determine this question we have, therefore, to see whether the intention of the legislature was that an election petition should be heard in the Court of the District Judge or whether it was intended that this duty should be given to a persona designata and the District Judge was the person so selected. If we hold that the District Judge is not a persona designata, we then have to consider whether this particular order is one which can be set aside under our powers of superintendence and, in the second place, whether, it is one which ought to be set aside.
6. It is quite clear that the Election Court is not made subject to the appellate jurisdiction of this Court by the Municipal Act itself. The position, therefore, is quite different from that of the Special Magistrates. appointed under Act II of 1931 where the Act itself makes them subject to the appellate jurisdiction of this Court. It will, therefore, be necessary to examine the provisions of the Act, in order to determine whether the District Judge is a persona designata or not.
7. Mr. Biswas drew our attention to a number of authorities in order to support his contention that the District Judge is a persona designata. I have had the advantage of reading the judgment Avhich my learned brother is about to deliver and I need only say that I agree with the interpretation which he has placed upon these cases.
8. In these circumstances, it is only necessary for me to refer to the case of S.N. Halder v. S.N. Mallick : AIR1924Cal454 . In that case, the petitioner was a candidate for election to the Bengal Legislative Council and air application was made for relief under the Specific Relief Act. It was held that the plaintiff was not entitled to such relief. It is clear that that decision throws no light on the point raised in this Rule and it could hardly be disputed that the Commissioners appointed to hear election petitions by candidates for election to the Bengal Legislative Council are personal designatoe.
9. In order to decide the matter before us, it is really necessary to examine the provisions of the Act itself. In this connection, we find four main features. In the first place, Section 36 lays down that an election petition is to be filed before the District Judge of the District in which the election has been held. In the second place, under Section 37, Sub-section (2) the Judge, that is to say the District Judge or such other subordinate officer to whom he may transfer the petition, may summon and enforce the attendance of witnesses and do certain other things. In the third place, under Section 44(6) the Local Government may make rules to regulate the procedure to be followed by a Judge enquiring into election petitions. And, in the fourth place, under Section 37, Sub-section (1) the District Judge has power to transfer the petition to any officer subordinate to him not below the rank of a Subordinate Judge.
10. With regard to the first point, Mr. Biswas argued that the use of the words 'District Judge' is in itself sufficient to show that they refer to a persona designate, and not to the judicial officer presiding over the Court of the District Judge as such. I am not all impressed by this argument. The two terms are really interchangeable. For example, the District Judge has been given -certain powers under Section 153 of the Bengal Tenancy Act and under Section 83 of the Village Local Self-Government Act. So far as I understand, it has never been suggested that in connection with this and similar matters he is merely a persona designate., Speaking for myself, I consider that the use of the words 'District Judge' immediately suggests the principal Court of original civil jurisdiction in the district. It is a term known to everybody and that, I think, is its natural meaning. There is no reason to suppose from the words themselves that the legislature refer to the District Judge as a persona designata to determine election petitions.
11. On the second point, Mr. Biswas contends that this provision is purely redundant and that in any event the use of the words 'as if he were a Civil Court' is practically conclusive that he is a persona designata. On the interpretation of this sub-section I agree with my learned brother that it is by no means conclusive in favour of the respondent.
12. The powers given to the Local Government under Section 44 (f) are clearly inconclusive. It may well be that the ordinary civil procedure is not suitable for the determination of election petitions and if it is not so suitable, the Local Government has power to vary it.
13. I now come to the 4th and the last point which is the power of transfer given by Section 37, Sub-section (1). On this point there is direct authority in the case of Parthasaradhi Naidu v. Koteswara Rao 17 M. 369 : 78 Ind. Cas. 98 : 46 M.L.J. 201 : 19 L.W. 402 : (1924) M.W.N. 272 : A.I.R. 1924 Mad. 581. This was a decision of a Full Bench. The point for decision was whether a District or Subordinate Judge deciding election petitions under certain rules framed by the Local Government under the Local Boards Act was acting as merely persona designata. The learned Judges were unanimously of the opinion that the District Judge is a Court and not a persona designata. The point is tersely put in the judgment of Waller, J., who says 'On the first point I agree that the Judge referred to in rule I is not a persona designata.' Rule IV(3) is, I think, conclusive. A Judge acting as persona designata has no Court subordinate to him; by Section 37, Sub-section (1), the District Judge has power to transfer the petition to any judicial -officer subordinate to him not below the rank of a Subordinate Judge. It is thus clear that the Municipal Act recognises the ordinary judicial hierarchy of a district with the District Judge at the head and the various Courts below him. The effect of this sub-section is that he as debarred from transferring it to subordinates below the rank of a Subordinate Judge. In my judgment this provision is conclusive to show that the intention of the legislature was that these election petitions should be heard in the Court of the District. Judge subject to the powers of the District Judge to transfer them to certain Subordinate Courts.
14. The result is that this Court has power of superintendence under Section 107 of the Government of -India Act and it has to be determined whether the order dismissing the petitioner's petition can or ought to be interfered with. Now, this is not a case in which the District Judge heard and determined the petition before him. On the contrary, the view which he took with regard to the competency of the petitioner to file it prevented him from determining it at all. If he is wrong in his decision, he has failed to perform a duty which the Statute cast upon him. There can be no question that under the powers of superintendence this Court has power to order a Subordinate Court to do something which it is bound to do but has refused to do. On the other hand, if we decline to interfere, the petitioner would have no remedy at all. We have, therefore, reached the conclusion that we should direct the learned Judge to hear this petition, if we are satisfied that the petitioner was entitled to file it.
15. The determination of this question rests upon the meaning to be attributed to the words 'any person qualified to vote at the election to which such question refers.' The learned District Judge came to the conclusion that the petitioner was not so qualified. Mr. Justice S.K. Ghose, came to the opposite conclusion. We are not surprised that different opinions should have been arrived at, as we ourselves have found the greatest difficulty in interpreting the various relevant sections on which the-determination o| this question depends.
16. We have given our best consideration to the matter and with great respect to the opinion of Mr. Justice S.K. Ghose we have reached the conclusion that the decision of the learned District Judge was correct.
17. In order to deter mine the meaning of the words 'qualified to vote', it is necessary to examine the provisions of Sections 21 and 23. We do not think there can be any doubt that Section 23 lays down certain qualifications to entitle the holder to have his name to be included in the roll of voters and Section 21 deals with the electoral roll itself. There is no difficulty in deciding who is entitled to vote. That is made quite clear by the provisions of Section 21, Sub-section (2). A person whose name is on the electoral roll is entitled to vote whether he is qualified or not. A person whose name is not on the electoral roll is not entitled to vote even though he may be qualified. Section 23 does not itself contain the words 'qualified to vote.' But it is quite clear from the provisions of Section 21, Sub-section (1) that the words 'qualified to vote' used therein have the same meaning as the corresponding words at the beginning of Section 23, Sub-section 2. Thus, a person who is qualified to vote is entitled to have his name entered in the electoral roll and that, in our opinion, is the meaning of the words 'qualified to vote.' We, therefore, agree with Mr. Justice S.K. Ghose, that there is a distinction between 'qualified to vote' and 'entitled to vote.'
18. In order to entitle him to bring this petition, the petitioner must show that he is a person qualified to vote at the election to which the question refers. It is quite clear that some meaning must be attached to these limiting words. Mr. Justice S.K. Ghose thought that they were intended to exclude persons who were not qualified on the polling day but have become qualified in the few days intervening between that and the time within which the election petition is to be filed. His conclusion is in these words:
This does not mean that the qualification is confined to the election in a particular ward, but it only means that the qualification must be possessed at the time of the election and not at the time of the application.
19. With great respect to the learned Judge, we are of opinion that this is far too narrow a construction to place upon these words. If the intention of the legislature had been that a person qualified to vote in any ward was entitled to file a petition, it would have been quite easy to employ language similar to that used in Section 23, Sub-section (1) with regard to qualifications of candidates. In our opinion the intention of the legislature was that the right to file an election petition is to be confined to a person who was qualified to vote at the particular election which has been called in question. On this point Mr. Chatterjee argued that Section 23 does not make any provision with regard to qualifications for voting in particular wards. In our opinion, that section is not the place where such a provision would be naturally expected. The whole question becomes clear from the provisions of Section 21, Sub-section (3) which is in these terms:
When a municipality has been divided into wards, the electoral roll shall be divided into separate lists for each ward.
20. Now, it could hardly be contended that the lists for wards are to be prepared according to the arbitrary pleasure of the Committee appointed under Section 21, sub Section (1) to prepare the electoral roll. The only reasonable interpretation is that each ward should be considered as a separate entity and that persons whose names are to appear in the electoral roll in that ward are these who have the qualifications laid down in Section 23 with respect to that ward. In other words, Section 36 means that a petitioner must be qualified to vote, i.e. entitled to have his name entered in the electoral roll of the ward, the election of which is called in question by the petitioner. In the present case, the petitioner was not so qualified and the learned Judge rightly rejected his petition.
21. There is one other small point. The learned Judge, while dismissing the application found that the petitioner might have another petition under Section 39 as an unsuccessful candidate. In our opinion, the learned Judge has misconceived the meaning and scope of that section. It merely provides for additional relief which may be given to a petitioner under Section 36 when he was himself a candidate at the election. If the petitioner was not a candidate, the only relief which can be asked for is that the election should be set aside. Where he is a candidate, he may ask that he shall be declared to have been elected.
22. The result is that this Rule must be discharged with costs, the hearing fee being assessed at ten gold mohurs.
23. The only question which remains for determination is whether the District Judge exercising the, powers conferred by Section 37 |s a Court subject to the appellate jurisdiction of the High Court and over which it has superintendence within the meaning of Section 107 of the Government of India Act. On behalf of the petitioner it is contended that the expression 'District Judge' has the same meaning as Court of the District Judge and on behalf of the opposite party it is argued that District Judge in the Act is a mere persona designata as distinct from a Court. It is necessary first to refer to all those provisions of the Act which relate to the powers and functions of the District Judge in relation to election petitions. Section 38 which provides for the manner in which proceedings to set aside an election on the ground of invalidity are to be initiated, directs that a petition is to be filed before the District Judge and that a deposit of Rs. 50 is to be made in Court as security for the costs likely to be incurred. Section 37 sets out the powers of the Judge 'in the inquiry and the procedure to be followed and is expressed as follows:
(1) Where a petition has been filed under Section 36, the District Judge, or any judicial officer subordinate to him and not below the rank of a Subordinate Judge (hereinafter referred to in this chapter as the Judge) to whom the District Judge may transfer the petition, may, after holding such inquiry in accordance with the prescribed procedure as he deems necessary, and subject to the provisions of Sections 38 and 39, pass an order confirming or amending the declared result of the election or setting the election aside.
(2) For the purposes of the said inquiry the Judge may summon and enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court, and may also direct by whom the whole or any part of the costs of such inquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1903.
(3) The Judge may, at any stage of the proceedings, require the petitioner to deposit in Court a further sum as the costs incurred or likely to be incurred by any respondent, or to give security, or further security for the payment of the same, and if, within the time fixed by him, or within such further time as he may allow, such costs are not deposited or such farther security is not furnished, as the case may be, may dismiss the petition.
(4) The decision or order of the Judge shall be final.
24. Then Section 38 provides that if the Judge is satisfied' that any of certain circumstances enumerated in Clauses, (a) to (d) has been established, he shall set aside the election. This is followed by Section 39 which covers cases to which Section 38 does not apply and here again the expression used is 'The Judge'. The same expression occurs in Section 40 which invests the Judge with powers to declare a person guilty of corrupt practice disqualified from being a candidate in the future. In Sections 41 and 42 reference is made respectively to a declaration that a candidate has not been duly elected, and to the setting aside of an election, and in both cases the authority to whom these acts are attributed is the Judge. It is to be observed that the expression 'the Judge' occurring in Sections 38 to 42 and also again in Section 44 Clause (f) is to be taken to include the District Judge as well as any subordinate officer not below the rank of a Subordinate Judge to whom the District Judge may transfer a petition under Section 36. This follows from sub Section (1) of Section 37. The next section which calls for attention is Section 43 which is thus expressed:
25. No election of a Commissioner shall be called in question in any Court except under the procedure provided by this Act; and no order passed in any proceeding under Sections 36 to 40 (both inclusive),shall be called in question in any Court and no Court shall grant an injunction
(i) To postpone an election of a Commissioner, or
(ii) to prohibit a person, declared to have been duly elected under this Act, from taking part in the proceedings of a Municipality of which he has been elected a Commissioner, or
(iii)to prohibit the Commissioner formally elected or appointed for a Municipality from entering upon their duties.
26. One more section of the Act needs to be referred to and that is Section 41 which gives the Local Government power to make rules to regulate and determine a number of matters, one of which indicated in Clause (f) of that section is 'The procedure to be followed by a Judge in inquiring into election petitions'.
27. The argument advanced by Mr. Biswas on behalf of the opposite party which he has sought to support by reference to a number of cases presently to be considered is as staled before, that the expressions 'District Judge' and 'The Judge' denote personae designatae as distinct from a Court. It is contended that the intention of the legislature is to be gathered from the following circumstance: Firstly, that in none of the relevant sections do we get the expression 'District Court' or 'Court of the District Judge' secondly, that the language of Section 37(2) 'For the purposes of the said inquiry the Judge may summon and enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court implies the assumption that the Judge is not a Civil Court; and thirdly, that it is the Local Government which is under Section 44 to regulate and determine the procedure to be followed by a Judge in inquiring into election petitions. Of the authorities relied upon by Mr. Biswas the case of Balaji Sakharam v. Merwanji Nowroji 21 B. 279, was a case under Section 23 of the Bombay District Municipal Act Amendment Act (Bombay Act II of 1884) which provided that if the validity of any election of a Municipal Commissioner was to be questioned, it would have to be by a petition to the District Judge, that the District Judge might pass orders for confirming or amending the declared result of the election or for setting the election aside, and that for the purposes of any inquiry which he might bold, the Judge might exercise any of the powers of a Civil Court and his decision would be conclusive. It was held that the District Judge acting under this section was not a Court within the meaning of the word in Section 622 of the Code of Civil Procedure, 1882, but was merely a persona designata. The same view was taken in Gangadhar Baburao v. Hubli Municipality : AIR1926Bom544 , which was a case under Section 22 of the Bombay District Municipal Act (Bombay Act III of 1901) which relates to the manner in which the validity of the election of a Council for may be brought in question and for our present purpose the first two sub-sections of that section may be referred to. Sub-section (1) provides that an application is to be made to the District Judge; Sub-section (2) directs that an enquiry shall there upon be held by a Judge not below the grade of an Assistant Judge appointed either specially for the case or for such cases generally, and provides that for the purposes of the said inquiry the said Judge may summon and enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court. In this case it was held that the District Judge being a persona designata, the High Court had no power under Section 115 of the present Code of Civil Procedure to interfere with the order of the Assistant Judge acting for the District Judge. In our judgment those two cases can have no application. The expression in the relevant sections of the statutes above noted is 'the District Judge', and this in an Act of the Bombay Legislature would tend in itself to indicate that the Court of the District Judge was not meant, because in the Bombay Civil Courts Act (India Act XIV of 1869) a distinction appears between 'District Judge' and 'District Court'. Section 5 of that Act is in the following terms:
There shall be in each District a District Court presided over by a Judge to be called the District Judge. He shall be appointed by the Governor of Bombay in Council by whose authority only he shall be liable to be suspended or removed from his appointment.
28. The distinction is manifest also in Section 6 which is thus expressed:
The District Judge shall ordinarily hold the District Court at the Sadar station in his District, but may, with the previous sanction of the High Court, hold it elsewhere within the District.
29. In the Act which governs the Civil Courts in Bengal, on the other hand, it is provided by Section 3 that
There shall be the following classes of Civil Courts under this Act, viz.: (1) the Court of the District Judge; (2) the Court of the Additional Judge; (3) the Court of the Subordinate Judge; and (4) the Court of the Munsif.
30. and a reference to Sections 8, 10, 13. 20, 21, and 38 makes it reasonably clear that District Judge and District Court are 'frequently employed as interchangeable terms. From this it follows that the use of the expression 'District Judge' in an Act of the Bengal Legislature is not necessarily an indication that the District Judge is to be regarded as a persona designata. The case of Gangadhar Baburao v. Hubli Municipality : AIR1926Bom544 , can be further distinguished by reason of the special s words in Section 22, Sub-section (2) of the Bombay District Municipal Act (Bombay Act III of 1901).
An inquiry shall thereupon be held by a Judge, not below the grade of an Assistant Judge, appointed by the Governor in Council, either specially for the case or for such cases generally..
31. These words clearly designate a special person or persons to whom the discharge of certain functions is to be entrusted and by implication exclude the District Court. The next case upon which reliance was placed is the case of the Municipal Corporation of Rangoon v. M.A. Shakur 3 R. 560 : 91 Ind. Cas. 550 : 4 Bur. L.J. 202 : A.I.R. 1926 Rang. 25, in which it was held the Chief Judge of the Rangoon Court of Small Causes in performing the functions assigned to him by Section 14 of the Rangoon Municipal Act (Burma Act VI of 1922) was acting as a persona designata and not as a Court. This decision was concerned with the intention of Sections 199 and 200 of that Act and turned upon the words 'the Chief Judge of the Rangoon Small Cause Court' contained in those sections. We do not consider that this case has any application to the facts before us. The Rangoon Court of Small Causes consists of a plurality of Judges but the Rangoon Municipal Act instead of vesting jurisdiction in the Court of Small Causes singled out the Chief Judge of that Court as the authority who was to exercise the jurisdiction created by that Act. The same observation applies to the. case of Lakshmanan Chetty v. Kannappar : AIR1927Mad93 , in which it was held for a similar reason that the Chief Judge of the Presidency Court of Small Causes at Madras exercising powers under rules under the Madras Municipal Act (IV of 1919) was a persona designata and not a Court. These decisions are consistent with observations in the case of Sholapur Municipality v. Tuljaram Krishnasa 55 B. 544 at p. 552 : 134 Ind. Cas. 1240 : 33 Bom. L.R. 1067 : A.I.R. 1931 Bom. 582 : Ind. Rul. (1932) Bom. 24. It appears that when a Judge or the Presiding Officer of a Court as distinguished from the Court itself is directed to perform any function of an authority created by a statute, such a Judge may be considered as a persona designata and not a Court, but when a Civil Court subordinate to the High Court, is constituted an 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.
32. Then Mr. Biswas has relied on an observation in the judgment of Sir Lawrence Jenkins in the case of Bhai Shankar v. Municipal Corporation of Bombay 31 B. 604 at p. 609, which was a decision under Section 33 of the City of Bombay Municipal Act (Bombay Act III of 1888).
But when-a special tribunal out of the ordinary course is appointed by the Act to determine questions as to rights which are the creation of that Act then, except in so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is the essential condition of these rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any there is no change of the old order; the new order is brought into being.
33. In our judgment this observation has no bearing here because what that case decided was tint Section 33 of the Act debarred the High Court from entertaining a civil suit brought to determine the validity of an election.
34. Reference was also made to the case of Mahedar Rahman Miya v. Kantichandra Basu : AIR1935Cal10 , in which all that was decided was that Rules 1-A and 26-B framed by the Local Government under Section 138(a) of the Local Self-Government Act read with Rule 24 and 25 bar the jurisdiction of the Civil Court to try a question whether a particular person is a qualified vote or not. This decision also, therefore, affords no guidance.
35. Reference may now be made to the language of Section 37 Sub-section 2 of the Bengal Municipal Act. Mr. Biswas contention is that the words 'as if he were a Civil Court' contains the assumption that the Judge is not a Civil Court and that these words are necessary for the purpose of extending to him some of the powers of a Civil Court. We do not think that this necessarily follows, because these words are capable of being regarded not as words of extension but as words of limitation, for it may well be that they were employed in order to make it clear that the Judge is to have the ordinary powers of the District Court only for the purpose of summoning and enforcing the attendance of witnesses, the rest of the procedure being left to be regulated by rules to be framed under Section 44 Clause (f). But even assuming that these words are to be regarded as words of extension and not of limitation, it dose not necessarily follow that the District Judge is not a District Court. Reference may, in this connection, be made to similar provisions of the Land Acquisition Act and the Provincial Insolvency Act. Section 53 of the former Act is in these terms:
save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Civil Procedure Code shall apply to all proceedings in the Court under this Act.
36. 'Court' is defined in Section 3, Clause (d) of the Act as the principal Civil Court of original jurisdiction unless the Local Government has appointed a special judicial officer within any specified local limits to perform the functions of the Court.
37. Again Section 5 of the latter Act is thus expressed Sub-section (1):
Subject to the provisions of this Act, the Court, in regard to proceedings under this Act shall have the same powers and shall follow the same procedure as it has and follow in the exercise of the original civil jurisdiction.
38. The definition of Court is to be found in Section 2 (1)(b):
The District Court means the principal Civil Court of original jurisdiction in any area outside the local limits for the time being of the principal towns.
39. In our judgment this branch of the argument advanced on behalf of the opposite party is not conclusive. Here it may be noted that Section 37 Sub-section 3 of the Bengal Municipal Act provides that the Judge may at any stage of the proceedings require a petitioner to deposit in Court a further sum as the costs incurred or likely to be incurred by any respondent. There is an earlier provision as to costs contained in Section 36 of the Act, which requires a person questioning the validity of an election to deposit Rs. 50 in Court as security for the costs. It is manifest that Court in Sections 36 and 37 can only mean the Court of the District Judge or the judicial officer subordinate to him to whom the election petition has been transferred. This consideration in our judgment goes far to raise the opposite inference that District Judge and Judge in the sections under consideration mean the Court of the District Judge and the Court of the Judge. This inference derives strength from a consideration of Section 43 of the Act. The words 'no election of a Commissioner shall be called in question in any Court except under the procedure provided by this Act', indicate by necessary implication that the District Judge is a Court. In the same section the words 'no Court shall grant an injunction' are clearly intended to prohibit the issue of an injunction by all Courts and include the District Judge. This being so, it is difficult to under stand how the District Judge can be said to be a persona designata with no jurisdiction and no power other than such as are granted by the Act, for it cannot be denied that the power to grant injunctions is manifestly a power of the District Court.
40. For the reasons already set out, it appears to us that the 3rd contention advanced on behalf of the opposite party must also fail, for the power given in Section 44, Clause (f) to the Local Government to make rules, to regulate and determine the procedure to be followed by a Judge in deciding election petitions is not a conclusive test.
41. On behalf of the petitioner it was argued that inasmuch as Section 37, Sub-section 1 recognises the District Judge's power to transfer election petitions and recognises also the subordination of other judicial officers, the District Judge must mean the District Court.
42. In our view effect must be given to this contention. The language of Section 37, Sub-section (1) accords recognition to the subordination of judicial officers who under the ordinary law are subordinate to the District Judge and declares that the District Judge may transfer election petitions to any such officer not below the rank of a Subordinate Judge. It is not easy to see how such a position could be contemplated if the District Judge was a mere persona designata.
43. It was decided by a Full Bench of the Madras High Court in Parthasaradhi Naidu v. Kateswara Rao 17 M. 369 : 78 Ind. Cas. 98 : 46 M.L.J. 201 : 19 L.W. 402 : (1924) M.W.N. 272 : A.I.R. 1924 Mad. 581, which was a decision under Local Boards Act (XIV of 1920) that inasmuch as by Rule 4(3) of the Rules for the conduct of inquiries under that Act powers were given to the District or Subordinate Judge in certain cases to direct any Court subordinate to him to hold the inquiry, the reference to a Judge with such powers could not mean anything else than reference to a Judge sitting as a Judge in the exercise of his ordinary jurisdiction extended for that purpose.
44. The conclusion to which we are led is that the District Judge means the Court of the District Judge, and we do think that it can be contended, that in discharging the functions entrusted to it by the Act, that Court is acting otherwise than as a Court of law. Under Section 10 of the Religious Endowments Act (XX of 1863) a vacancy in a temple committee is to be filled by the persons interested in the manner provided by the Act. If any vacancy shall not be filled by such elections within three months of its occurring the Civil Court may cause that vacancy to be filled up. It was held by the Judicial Committee of the Privy Council in the case of Balakrishna Udayar v. Vasudeba Ayyar 40 M. 793 : 40 Ind. Cas. 650 : 15 A.L.J. 645 : 2 P.L.W. 101 : 33 M.L.J. 69 : 26 C.L.J. 143 : 19 Bom. L.R. 715 : (1917) M.W.N. 628 : 6 L.W. 501 : 22 C.W.N. 50 : 11 Bur. L.T. 48 : 44 I.A. 261(P.C.), that in these matters the Civil Court exercises it power as a Court of law, not merely as a persona designata whose determination are not to be treated as judgments of a legal tribunal.
45. In the case of Sholapur Municipality v. Tuljaram Krishnasa 55 B. 544 at p. 552 : 134 Ind. Cas. 1240 : 33 Bom. L.R. 1067 : A.I.R. 1931 Bom. 582 : Ind. Rul. (1932) Bom. 24, it was pointed out that as Section 3 of the Code of Civil Procedure provides in terms that the. District Court is subordinate to the High Court for the purposes of the Code, the District Court for the purposes of s, 107 of the Government of India Act, must be regarded as generally subject to the appellate jurisdiction of the High Court.
46. Finally we might observe that in the case of Binodebehari Chatterjee v. Gireendra nath Roy Chandhuri : AIR1934Cal536 , it was held that this Court has the power of revision when the Judge refuses to exercise the jurisdiction vested in him by Section 37 of the Bengal Municipal Act.
47. The result of the conclusions at which we have arrived may be thus summarised:
(1) The expression 'District Judge' in the Act means the Court of the District Judge;
(2) That Court does not, save as otherwise provided, divest itself of its ordinary character when discharging the additional functions committed to it by the Act;
(3) The District Judge is a Court over which the High Court has the power of superintendence within the meaning of Section 107 of the Government of India Act.