This is an application in revision under section 20-A (5) of the C. P. and Berar Municipalities Act, 1922 (hereinafter referred to as the Act), against the order of the Civil Judge (Class I), Achalpur, dated 20-1-1956, setting aside the election of the applicant, Janardan, to the Achalpur Municipality.
2. Janardan and Hiralal were the two candidates for the election of a member for ward No. 21 of the Municipal Committee, Achalpur. The names of both the candidates were published in the final electoral roll of the Municipal Committee. Both were duly nominated. On 21-3-1955, at the scrutiny of the nomination papers, an objection was raised to the nomination of non-applicant, Hiralal, on the ground that he was not entitled to be enrolled on the electoral roll of Ward NO. 21 as he was in arrears of Municipal taxes for the period ending 31-3-1954, which entailed a disqualification under section 13, proviso (iii), of the Act. This contention was upheld by the scrutinizing officer and the order was upheld in appeal by the Sub-Divisional Officer. As the applicant was the only other candidate, he was duly declared elected and his in me was published in the M.P. Gazette on 13-5-1955. On 13-6-1955, the non-applicant filed an election petition under section 20-A (2) of the Act on the ground that his nomination paper was wrongly rejected, which affected the result of the election. The applicant in his written statement maintained that the rejection of the nomination paper was prepay and further contended that the petition was barred by time as it was not presented to the ' Judge' within 14 days from the date on which the result of the election was notified in the Gazette.
3. The 'Judge' who heard the election petition held that the nomination paper was wrongly rejected and that the petition was not barred by time. In the result, he set aside the election and ordered the election to be held afresh.
4. The returned candidate, the applicant Janardan now comes up in revision under section 20-A(5) of the Act. The learned counsel for the applicant contends (1) that the petition was barred by time and ought, therefore, to have been rejected, (2) that the finding regarding wrongful rejection of the nomination paper was erroneous and liable to be set aside. It is contended that the petition was barred by time because the 'Judge' to whom the petition was presented beyond 14 days from the date of the publication of the result of the election, was not a 'Court' but a persona designate and hence no extension of the period prescribed for filing the petition under section 20-A (2) of the Act could be claimed for the reason that the 'Court' of the Civil Judge was closed due to summer vacation.
5. In my opinion, this contention is well founded. Under section 20-A(2) of the Act, an election petition shall be presented to the 'Judge', and no petition shall be admitted unless it is presented within 14 days from the date on which the result of such election was notified. In the instant case, the notification was made on 13-5-1955 and hence, prima facie, the petition which was filed on 13-6-55, could not be entertained. The petitioner conscious of this bar had taken the plea, in his petition, that the 'Courts' were closed from 13-5-1955 to 12-6-1955, and hence the petition was being presented on 13-6-1955. The learned 'Judge' presiding over the election tribunal under section 20-A (2) of the Act, had held that the 'Courts' were closed for summer vacation from 13-5-1955 to 12-6-1955 and as the petition was filed when the 'Courts' reopened after summer vacation, the petition was within time. This would obviously be so provided the election tribunal were a 'Civil Court', when section 4 and section 28 of the Indian Limitation Act would automatically apply.
6. When jurisdiction is conferred on a 'Civil Court' or on a 'Judge' who usually presides over them, it is always a question of some nicety to determine whether the matter is so heard and determined by a Court of law or by a persona designate. We have always to look to the whole scheme of the Act, to its various provisions including the Rules made there under to determine whether the special jurisdiction is an extension of the jurisdiction of the ordinary Courts of Record as already existing or it is newly conferred on an ad-hoc tribunal, specially created for the purpose.
7. Therefore, the first question at issue is whether the 'judge' to whom the election petition was presented under section 20-A of the Act is a civil Court, Looking to the scheme of the C. P, Municipalities Act, it is clear that to determine the disputes relating to elections under the Act, the jurisdiction of the Courts of civil jurisdiction has not been extended to permit them to adjudicate upon these matters and hence the principle enunciated in National Telephone Co,, Lid. v. Post-Master-General (1913) A C 546, does not apply. The principle stated by Lord Atkinson in the aforesaid case is:
"It is simply the question of extending the jurisdiction of existing Court of law, with all its incidents including a right of appeal; to a new1 matter closely resembling in character those matters over which it has already jurisdiction as a Court of Law."
Lord Parker of Waddington put the matter thus:
"Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same."
8. In Nilkanthrao v. Jagannath 27NLR61, Jackson A. J. C. following the observation of Lord Parker in National Telephone Co. Ltd. v. Postmaster-General (cit. sup.) emphasised the fact that the conferral of jurisdiction on a Civil Court with ho further provision raises a strong presumption that the' "Tribunal' was intended to act as a Civil Court.
“The important Words, I think, are "With ho further provision"; and it will be seen that With the exception of the Bombay cases, which do not seem to me to give any real assistance in all the Indian cases some further provision had to be considered.
I am not satisfied, therefore, that the terms of the rules regarding procedure and evidence override the clear intention to Which I have already referred that the Court was intended to act as a Civil Court. "
9. Similarly, in Goonesinha v. De Kretser A I R 1945 P. C. 83, the Judicial Committee ruled that when a Judge of the Supreme Court of Ceylon takes cognizance of an election dispute under Ceylon (States Councils Elections) Order in Council, 1931, the jurisdiction so exercised is extension of or addition to the ordinary jurisdiction of the Supreme Court.
10. In the instant case, jurisdiction is conferred on a 'Judge' and not on a Civil Court and the 'Judge* to whom jurisdiction is given is not any 'Civil Judge' but that one only who is specially empowered by the State Government in this behalf and the Act and the Rules elaborately prescribe the procedure for the conduct of the enquiry and other incidental matters.
11. It is, no doubt, true that this special jurisdiction is being conferred on a 'Judge' who usually presides over the Civil Court in his ordinary civil jurisdiction. But reference to a 'Judge' in the Act is coupled with provisions in the act and the rules which clearly negative the suggestion that the 'Judge' in the Act was intended to be a 'Civil Court'. In Parthsardhi Naidu v. Koteswara Rao I L R 47 Mad. 369, from the scheme and language of the Madras Act, it was held that reference to a Judge with power to refer to a Court subordinate to him could mean nothing else than reference to a Judge sitting as a Judge in the exercise of his ordinary civil jurisdiction. On the contrary, there is enough material under the Act, in the instant case, to show that this was not so intended.
12. It is to be observed that prior to the enactment of section 30-A of the Act, which was incorporated into the statute by the Amending Act, C. P, and Berar Act 14 of 1947, the election disputes were determined under the rules made under section 176 (2) (1) of the C. P. Municipalities Act, 1922, by the Court of original civil jurisdiction not below the rank of the Court of Subordinate Judge of the 1st Class having ordinary local jurisdiction in the areas to which the dispute relates. A Full Bench of the Judicial Commissioner's Court in Nilkanthrao v. Jagannath (cit. sup.) had held that the Subordinate Judge deciding the dispute under the above Act was a Civil Court. The Legislature has by the amending act aforesaid (act 14 of 1947) changed the provision and conferred the special jurisdiction not on 'the Courts of ordinary civil jurisdiction' but on 'Civil Judges, especially empowered by the State Government in this behalf. It would be permissible in the circumstances to take notice of this change in the language by the Amending Act which gives a different meaning to the provision. As observed by the Privy Council in D. R. Fraser and Co. Ltd. v. Minister of National Revenue (1919; A C 24:
“When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately."
13. It is well established that even where the special jurisdiction is conferred on a 'Judge, it does not necessarily follow that the conferral of jurisdiction is on the Civil Court over which he usually happens to preside. Under the Bombay District Municipal Acts, the jurisdiction to decide election disputes under those Acts has been conferred on the 'District Judge' of the district within which the election had been held or should have been held. It was held that the 'District Judge' acting under these Acts was not a Civil Court within the meaning of the Code of Civil Procedure. (See Balaji Sakhamm v. Merwanji Nowroji I L R 21 Bom. 279, a case under section 23 of the Bombay Act II of 1884; Gangadhar Baburao Gadre v, The Hubli Municipality I L R 50 Bom. 557=A I R 1926 Bom. 344, a case under section 22 of the Bombay Act III of 1901; Jagmohan v. Venkatesh A I R 1933 Bom. 105, and Keshav Ramchandra Bhuare v. Municipal Borough, Jalgaon I L R 1946 Bom. 143=A I R 1946 Bom. 64, cases under section 15 of the Bombay Act XVIII of 1925.)
14. Indeed, in Balkrishna v. Vasudeva 44 I A 251, their Lordships of the Judicial Committee, when construing section 10 of the Act 20 of 1863 for deciding whether 'Civil Court' to whom jurisdiction had been conferred was a Court of know of a persona designata, took note of the fact that
"it is to the Civil Court and not to an individual Judge who may preside in or constitute the Civil Court, that jurisdiction is given."
.
15. In the instant case, there is ample, internal evidence to show that the Legislature was creating an Ad-hoc tribunal to decide election disputes under the Act and the Officer to preside over this Tribunal was the 'District Judge, Additional District Judge or a Civil Judge especially empowered by the State Government in this behalf, who, but for this empowering would be ordinarily presiding over the Civil Courts of the district.
16. Firstly, as already pointed out, the special jurisdiction is vested in ' Judges' especially empowered, which would not be necessary, if it were a case of enlargement of the jurisdiction of the Civil Court as already existing. Secondly, according to section 20-A (5) of the Act, the order of the 'Judge' is a 'decision' which term, as pointed out in Ramchandra v. Ramnarayan Civil Revision No. 74 of 1954, decided on 6-6-1954, has been used to distinguish it from judgment, decree or final order of a Court of civil jurisdiction.
Thirdly, under the rules framed under the Act, prescribing the procedure of inquiry into the election petition, there are these special features;
(i) A petition must be presented to the 'Judge'. It has been held, under a similar provision in the Bombay Act that a petition presented to the Clerk of Court would be invalid. [See Gangaditar Baburao Gadre v. The Hubli Municipality (cit. sup.)]. This would be so because the 'Judge' not being a Civil Court, a presentation could be made to him alone as envisaged in the Act.
(ii) Under rule 6, an enquiry into the election petition has to be made as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of the suits.
(iii) Legal fiction has been resorted to for vesting the 'Judge' under the Act with some of the powers of the Civil Court, which could not have been necessary if the 'Judge' was a Civil Court within the meaning of the Act.
(a) Under rule 12, for the purposes of enquiry under the Act, the 'Judge' is vested with the powers of a Court under the Code of Civil Procedure when trying a suit and also is deemed to be the Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure.
(b) Under rule 21, the 'Judge' has been empowered to execute his orders for costs as if the orders were a decree of the Civil Court.
17. I have, therefore, no hesitation in holding that the 'Judge' under the Act is not a civil Court but an Ad-hoc Tribunal created by the Act for the purposes of deciding election disputes under it. If the 'Judge' is not a civil Court, then sections 4 and 29 of the Indian Limitation Act would have no application and the fact that the Civil Courts were closed for the period between 13-5-1955 and 12-6-1955 could be of no avail.
18. The learned counsel further argues that the 'Judge' even though not a civil Court, is yet a 'Court' within the meaning of section 4 of the Indian Limitation Act. The contention has no force for even if it is admitted that the Election Tribunal is a 'Court' (though not a Civil Court), it has not been established that that 'Court' was closed between 13-5-1955 and 12-6-1955. I, therefore, hold that the 'Judge' had no jurisdiction to admit the petition contrary to the mandatory provisions of section 20-A (2) of the Act beyond the prescribed period of 14 days. In view of the aforesaid decision, I need not examine the question whether the rejection of the nomination paper of the non-applicant, Hiralal, was proper, under the circumstances of the case,
19. The revision petition is allowed and the election petition of the fort applicant filed on 13-6-1955 for setting aside the election of the applicant is dismissed with costs throughout.
Application allowed