LAWS(BOM)-1960-2-16

HAMBIRRAO BHAURAO PATIL Vs. BALISHA GANPAT KAMBLE

Decided On February 12, 1960
Hambirrao Bhaurao Patil Appellant
V/S
Balisha Ganpat Kamble Respondents

JUDGEMENT

(1.) THE election of Councillors to the Islampur Municipality was held on November 5, 1957. In that election there were two seats in Ward No. 2 to be elected. One of these scats was a reserved seat and the other was a general seat. The petitioner and opponent No. 3 were candidates for the general seat, while opponent No. 1 and opponent No. 4, who were qualified for the the reserved seat, contested the election for the reserved seat. In the said election opponents Nos. 1 and 3 were declared as duly elected. On November 15, 1957, an election petition was filed by the petitioner before the District Judge of South Satara under Section 22 of the Bombay Municipal Act, challenging the validity of the election. Another election petition was also filed by opponent No. 4, who had also been declared unsuccessful in the election. In the proceedings of these election petitions, by consent of the parties it was decided to have a recounting and scrutiny of the votes and the result declared on suchrecounting and scrutiny. According to this agreement the recounting and scrutiny of votes was gone through and the result thereof was that the petitioner was found to have secured 773 votes, opponent No. 1 got 689 votes opponent No. 3 obtained 832 votes and opponent No. 4 got 651 votes. Now it must be remembered that out of these four candidates the petitioner and opponent No. 3 were entitled to contest only for the general seats and they were not qualified to contest for the reserved seats. Of these two candidates for the general seat, opponent No. 3 had obtained 832 votes and the petitioner had obtained 773 votes. Therefore, for the general seat opponent No. 3 was the successful ' candidate and the petitioner was the defeated candidate. For the reserved seat for which opponent No. 1 and opponent No. 4 had contested and for which they alone were qualified to contest, opponent No. 1 had secured 689 votes and opponent No. 4 had got 651 votes. Therefore, for the reserved seat opponent No. 1 should have been declared the successful candidate and opponent No. 4 the defeated candidate. It appears, however, that the learned Assistant Judge, who was holding this enquiry under Section 22, overlooked the fact that the election was for one reserved seat and one general seat and the candidates for the general seat namely the petitioner and opponent No. 3 were not qualified for the reserved seat and, therefore, the petitioner who was defeated for the general seat could not be declared elected for the reserved seat simply because the votes which he had obtained were larger in number than the votes secured by each of the candidates for the reserved seat. The learned Assistant Judge considered only the number of votes polled by the candidates and declared opponent No. 3, who had secured the highest number of votes, namely, 832 and the petitioner, who had obtained the next highest number of votes, namely 773, as the successful candidates and declared the other two candidates as the defeated candidates. Now this was a decision and order, which contained an error apparent on the face of the record in so far as it declared the petitioner as the duly elected candidate. Opponent No. 1 filed a Review Application in the District Court at Sangli praying that the decision given and the order passed in the election petition should be reviewed as it suffered from an error apparent on the face of the record. This application was transferred by the District Judge for disposal to the learned Assistant Judge, who had decided the original application. Two points were urged before the learned Assistant Judge by the petitioner, who wasopponent No. 1 in the Review Application. It was contended in the first place that the review application, which was filed in the District Court and not presented to the District Judge himself, was not properly presented and, therefore, not maintainable. It was urged in the second place that there was no power in the District Judge or the Assistant Judge, who had decided the election petition, to review his own decision. Both these contentions were negatived by the learned Assistant judge. He entertained the review application holding it to be maintainable and he also held that the decision, which he had given in the original application and the result, which he had declared were manifestly wrong and required to be corrected. He accordingly granted the review application and declared opponent No. 3 and opponent No. 1 as duly elected to the general seat and the reserved seat respectively in Ward No. 2 of the Municipality.Against this decision of the learned Assistant Judge the petitioner has filed the present Special Civil Application.

(2.) MR . Sukthankar, who appears on behalf of the petitioner, has urged before us two points, which were urged on behalf of his client before the lower'Court. Mr. Sukthankar has argued that under Section 22 of the Bombay District Municipal Act, the election petition is to be made not to the District Court but to the District Judge, who is a persona designal a and if a review application is at all competent, it must also be made and presented to the persona designata himself and not to the District Court, because the District Court has no jurisdiction to deal with and decide applications under Section 22 of the Act and also applications for review of the decisions given under Section 22.

(3.) THE next contention, which he has raised before us, is that the learned Assistant Judge, when he decided the election petition and passed an order declaring the result on the recounting, was functus officio and had no jurisdiction thereafter to entertain a review application relating to the decision, which he had given. Mr. Sukthankar's contention is that a'power to review his decision was not expressly given to the persona designata by the District Municipal Act, which invested him with jurisdiction to deal with election petitions and Mr. Sukthankar contends that such a power cannot be exercised unless the authority is specifically invested with it. Mr. Sukthankar has further argued that the enquiry before the learned Assistant Judge being an enquiry before a persona designata and not before a Court, the provisions of the Civil Procedure Code were not applicable and, therefore, the provisions relating to review contained in the Civil Procedure Code could not be availed of by the learned Assistant Judge. In short, therefore, the submission of Mr. Sukthankar is that the order reviewing the decision passed by the Assistant Judge is an order passed without jurisdiction and must, therefore, be set aside.