SOMALAL NATHJIBHAI SIROYIA Vs. ARJANDAS JODHARAM

JUDGEMENT

(1.) In this petition the decision of the District Judge Panchmahals at Godhra holding that the District Judge has jurisdiction to decide election petitions under sec. 15 of the Bombay Municipal Boroughs Act 1925 is challenged. In 1962 June election for the Godhra Borough Municipality was held. The result of the election in ward No. 1 was declared on 18th June 1962 wherein the petitioner and respondents Nos. 1 to 4 were declared elected and respondents Nos. 6 to 18 were declared as unsuccessful. Respondent No. 5 filled an election petition in the Court of the District Judge Panchmahals at Godhra under sec. 15 of the Bombay Municipal Boroughs Act. The petition was contested. At the stage of hearing it appears the respondent No. 5 put in an application contending that as the learned District Judge was not appointed as required under section 15(2) of the Bombay Municipal Boroughs Act to conduct the inquiry be had no jurisdiction to hear the petition. The learned Judge heard the preliminary objection and decided that he had jurisdiction. The grounds on which the learned Judge held that he had jurisdiction inter alia were that the rule of stare decisis was in favour of the view that the District Judge is the competent authority to hear such petitions that at no time after the Municipal Boroughs Act came into force in 1925 the State Government had been called upon to issue a notification specially empowering the District Judge by a general or special notification to hear election petitions. Under the Bombay Civil Courts Act 1869 the District Court is the principal Court of civil jurisdiction and the District Judge presides over it and as such has jurisdiction to decide all matters filed in his Court. The learned Judge also seemed to think that the Bombay High Court was of the same view and placed reliance particularly on two decisions which I shall refer to later. On the interpretation of sub-clause (2) of see. 15 the learned Judge observed that in his opinion if the inquiry was to be held by a Judge below the grade of the District Judge then only the State Government had to issue either a special or general notification. He refused to follow the direct authority of the Saurashtra High Court in Ratilal Fulabhai v. Chunilal M. Vyas A. I. R. (38) 1951 Saurashtra 15 on the ground that the Bombay High Court was of his view. After giving due consideration to the provisions of law the reasoning given by the learned Judge in his judgment and the decisions cited therein with respect I am unable to accept the conclusion reached or the reasoning of the learned District Judge for reasons that follow.

(2.) Mr. B. D. Shukla appearing for the respondent No. 5 fairly conceded that he found it difficult to support the decision.

(3.) The short point involved in this petition is whether under sub-see. (2) of sec. 15 the District Judge has the authority to hear and decide the petition without being appointed by the State Government either specially for the case or for such cases generally. Before I proceed to consider this important legal aspect it would be necessary to reproduce verbatim sub-sees. (1) and (2) of sec. 15 of the Municipal Boroughs Act which are material for the decision of this point.