K. Parthasarathi Naidu Garu v. C. Koteswara Rao Garu And Anr.

Walter George Salis Schwabe, C.J.

1. This is an application for the revision of the decision of the District Judge acting under the powers conferred upon him by the Rules framed under the Madras Local Boards Act of 1920. By the Rule of the Rules issued by the Local Government under the powers conferred on them by Section 199(2)(c), "No election of a Member or of a President of a District, Taluq, or Union Board shall be called in question except by an election petition presented in accordance with these rules, to the District or Subordinate Judge having jurisdiction." A preliminary point is taken that this Court has no power of revision, under Section 115 of the Code of Civil Procedure over the decision of a District or Subordinate Judge when acting under that rule. That depends on whether the Judges therein referred to are acting as Courts, or acting merely as persona designata, that is to say, persons selected to act in the matter in their private capacity and not in their capacity as Judges. There has been considerable conflict of opinion on this point since the coming into force of this Act, and I do not think that the decisions that have been given on the matter are of great assistance to us in arriving at the proper conclusion, and we have to look at the Act and the Rules and the law as it stands. The law is, I think, quite definitely established by the decision in National Telephone Co. Ltd. v. Postmaster General (1913) A.C. 546 in the words of Lord Parker at page 562 that "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 the 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." If this matter bad been referred to the District Court or Subordinate Judge's Court in terms, in my judgment, no question could arise, because, following the words of the judgment just quoted, the matter would be determined by the Court as a Court, it being given jurisdiction for this particular purpose, and all the incidents which include the incident of being liable to revision must follow, although no appeal would lie in this particular case because an appeal has been expressly precluded, for by Section 57(2) of the Act, and by the Rules "this decision is to be final." But as the word "Judge" is used and not the word "Court," one has to look carefully to see whether the word "Judge" was used of him in his capacity as Judge or in his personal capacity, and I think great light is thrown upon this by two other rules. Rule 12(2) of the Rules for election refers to "an election or other competent Court" and it is quite clear that it is there referring to a Court of a District Judge or Subordinate Judge; and, by Rule 4(3) of the Rules for the conduct of inquiries, power is given to the District or Subordinate Judge in certain cases "to direct any Court subordinate to him to hold the inquiry." I find it impossible to hold that a reference to a Judge with power to refer to a Court subordinate to him can mean anything else than reference to a Judge sitting as a Judge in the exercise of his ordinary jurisdiction extended for that purpose. For these reasons, in my judgment the power of revision lies.

2. It is further argued that the fact that the decision of this Judge is, by Section 57 of the Act and by the Rules final, preclude any revision. There is really no authority adduced in support of that proposition and, in my judgment, it would be quite contrary to the whole object and intention of Section 115 of the Code of Civil Procedure so to hold. That Section only applies where there is no appeal. I know of no better way of directing that there shall be no appeal than by the legislature stating that the decision of a particular Court shall be final. It is the ordinary mode of expression used for the purpose in much of the legislation in England on which this legislation is founded; and, where the whole object of revision is to prevent a Court, from which there is no appeal, acting contrary to its jurisdiction, a finding that it is the law that, because the words used are "the decision shall be final," a Court ordinarily subject to the revisional powers of this Court, should be permitted to act wholly without jurisdiction without the aggrieved party being entitled to any remedy, would in my judgment be untenable, and that would be the effect of deciding this second point in favour of the contention put forward.

On these grounds, in my judgment, this Court has revisional power and the preliminary point fails.

3. The petitioner was duly elected President of the Narasaraopet Taluq Board. A petition was subsequently filed before the District Judge of Guntur for a declaration that this election may be declared void and annulled and that the petitioner one Chinnatalacheruvu Koteswara Rao, a defeated candidate in the election, should be declared to be duly elected. The District Judge found that the petitioner had not been properly appointed a member of the Talaq Board and was, therefore, not eligible for election to the Presidentship of that Board, and the matter comes before us on a petition for revision of that order.

4. It is contended, on the one side, that the decision of the District Judge was wrong and that this is a case for the exercise by the High Court of its revisional powers under Section 115, Civil Procedure Code, and, on the other side, that the decision of the District Judge is right, and that, even if it was wrong, his order is not a proper subject-matter for revision.

5. The powers of a District Judge in the matter of election petitions are contained in Section 57 of the Madras Local Boards Act of 1920, and in the "Rules for the conduct of inquiries and the decision of disputes relating to elections," issued by the Local Government under their powers in that behalf under Section 199 of the Act. By Section 57 the Judge has power to determine whether an appointed member is disqualified under Section 55 or Section 56 by reason of the various grounds set out in those Sections such as insanity, bankruptcy, being interested in contracts with a local board and the like, none of which are alleged in this case. The petitioner had been appointed by the President of the District Board purporting to act under Section 9 of the Act. By the Rules above referred to, save as provided in Section 57, no election of a member or a President can be called in question except by an election petition presented to the District or Subordinate Judge. This Rule is somewhat obscure. I understand it to mean that apart from the powers under Section 57 a petition to the District or Subordinate Judge is the only way of questioning the election. But I can find nothing either in the Section or Rules giving powers to a District or Subordinate Judge to question the appointment of a nominated member such as the petitioner except on the specified ground, namely, disqualification under Sections 56 and 57. At the time of his election as President, he, the petitioner, was de facto a member of the Board and as such eligible for election to the Presidentship. It is not suggested that there was any irregularity in the election; but what is suggested is that he was not eligible for election because he was not properly appointed a member by the President of the District Board. Now the appointments of members other than elected members are in certain cases in the hands of the Local Government, in certain cases in the hands of the President of the District Board and in certain cases in the hands of the President of the Taluq Board under Section 9 of the Act, and I can find nothing in the Act to suggest that a District or Subordinate Judge is intended to have any jurisdiction to decide whether the Local Government or the President of the District or Taluq Board as the case may be, properly exercised their power of appointment. What he has jurisdiction to decide is whether a person so appointed is disqualified under Section 55 or Section 56 and nothing else, and in my judgment, on a petition dealing with an election to Presidentship, he cannot go into the question whether a particular candidate was duly appointed a member of the Board, "therefore, in my judgment, the District Judge in this case was acting wholly without jurisdiction in investigating that question and giving his decision upon it, and the matter therefore comes directly under Section 115(a) of the Civil Procedure Code. If it is desired to question the appointment of a member, it is probably open to question it in Court by proceedings in the nature of quo warranto.

6. Assuming that the District Judge had power to inquire into this matter, whether it can be said that the High Court has power to revise his order under Section 115(c) is a very difficult question and one upon which I do not think it necessary or advisable to express any opinion or to add one more to the many judgments dealing with what does come under that Section and what does not; nor do I consider it necessary for the decision of this case to go into the question whether the District Judge was right or wrong in the decision to which he came. But as the matter has been fully argued before us and as it is of considerable importance, I think it desirable that we should express our opinion, obiter though it may be.

7. The facts are that the President of the District Board while temporarily in Madras prepared and signed a list of his appointments including therein the petitioner, and sent a copy of that to the Fort St. George Gazette. The District Judge held that, by reason of Section 23(2) of the Madras Local Boards Act, all the appointments thus made were void. That Section enacts that "during the temporary absence or incapacity of the President of a District or Taluk Board, the President's functions shall devolve on the Vice-President." By Section 25, "the exercise of these powers by the Vice-President shall be subject to such restrictions, limitations and conditions as may be laid down by the President and shall also be subject to his control and revision." I do not think that the mere absence for a few days of the President from his district on a visit to Madras necessarily vests in the Vice-President the power of appointing members of the Board. But even if it did, the fact is in this case the Vice-President did not make any appointment and the President returned to his district, and signed again in his district the list of appointment of these members and directed it to be posted on the board where, and not in the Fort St. George Gazette, it had by the Act to be posted. This was a perfectly proper exercise of the President's powers of appointment and, in my judgment, there was nothing wrong with the appointment of the petitioner at all.

8. It follows that this petition must be allowed, that the order of the District Judge must be set aside. The 1st respondent must pay costs throughout, including the costs of the 2nd respondent.

Ramesam, J.

9. I agree with my Lord's conclusion in the judgment delivered that, in the light of the Rules made under the Act, the District Judge must be considered to be a Court and that, notwithstanding the use of the word ' final' in Section 57, a revision petition lies to this Court.

10. The next question is whether there is any question of jurisdiction or material irregularity within the meaning of Section 115, Civil Procedure Code. It is not suggested that the District Judge acted with material irregularity in the exercise of his jurisdiction. As to jurisdiction, I think, one must start with the principles laid down by the Privy Council in Balakrishna Odayar v. Vasudeva Aiyar (1917) 40 Mad. 793. "The section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." It follows that an error of law leading to an erroneous order only, does not justify our interference. An error of law leading to the exercise of a jurisdiction which did not exist or to the failure to exercise a jurisdiction which did exist, justifies such interference see Atchayya v. Sri Seetharamachandra Rao (1913) 39 Mad. 195. It must be remembered that every error of law cannot be regarded as the exercise of a jurisdiction which does not exist merely because, but for such error, the order of the Court would have been different; otherwise, all erroneous decisions can be modified or revised in revision. I agree with the observations of my brother Wallace, J., in Ahmed Thambi Maracair v. Basava Maracair 1923 Mad. 254.

11. Applying these principles, it follows that, where a District Judge, who has jurisdiction to enquire into an election petition under the Rules made under the Local Boards Act, 1920, passed, as the result of his enquiry, an erroneous order based on an erroneous construction of the Sections of the Act or the rules, the order cannot be interfered with in revision; and it cannot be said in such a case, that, on account of his error of law, the District Judge exercised a jurisdiction which did not exist or failed to exercise a jurisdiction which existed. For instance when he held erroneously that the appointment of a member or president was void, it cannot be said merely by reason of such error that there was an erroneous assumption of jurisdiction. I do not think that the observations of Channell, J., in Rex v. Manchester Justices (1899) 1 Q.B. 571 help us in the application of Section 115. It is true that these observations have been quoted and applied by my brother Krishuan, J., in Ramaswami Goundan v. Muthu Velappa Gounder 1923 Mad. 192, I am unable to agree with all the observations in that case. I also observe that, in that case, the ground of material irregularity was also available.

12. In the present case before us, I agree with my Lord the Chief Justice, in holding that the District Judge acted without jurisdiction. Under Section 57 he had jurisdiction to enquire into the validity of the appointment of a member only if it is questioned on the ground that he was disqualified under Sections 55 and 56. No such ground was alleged or proved and the District Judge had no jurisdiction to enquire into the election petition. We have not here a case of his holding that he had jurisdiction to enquire by an erroneous construction of some Section or Rule of law. He merely enquired into a petition in which no ground, such as is mentioned in the section, was alleged.

13. I agree with the order proposed by my Lord.

David Grierson Waller, J.

14. 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. I agree also that the description of his decision as final means no more than that there is no appeal against it. It does not mean that a decision made without jurisdiction is not open to revision under Section 115, Civil Procedure Code.

15. It seems to me clear that, in this case, the Judge had no jurisdiction to decide what he did decide. Petitioner was an appointed member of the Board and his appointment could be questioned before the Judge only with reference to Sections 55 and 56 of the Act. It could certainly not be questioned in a proceeding of this kind. The Act, no doubt provides that the President shall be elected from among the members of the Board but that provision does not give the Judge jurisdiction on an election petition to consider whether the members have or have not been properly appointed. He cannot disqualify them save on grounds that are not applicable1 here. The result in the present instance, was the petitioner remained an appointed member of the Board although the Judge had set aside his election as president on the ground that he had not been properly appointed a member. On the last point It agree that petitioner was properly appointed and concur in the order allowing the petition and as to costs.