YESHWANTA MAHADEO DHIRDE Vs. NANDKISHORE GHANASHYAMLAL JAISWAL

JUDGEMENT

(1.) THIS revision petition has been filed by the applicant Yeshwanta Mahadeo Dhirde under the provisions of Sub -section (5) of Section 20 -A of the C.P. and Berar Municipalities Act, 1922, against the decision of Mr. B. V. Patwardhan, Assistant Judge, Nagpur, by which the Assistant Judge dismissed the election petition filed by the petitioner Yeshwanta by his judgment dated August 3, 1960 - By the original petition the applicant Yeshwanta challenged the election of the present opponent Nandkishore Ghanashyamlal Jaiswal who was elected as a member from Ward No. 10, called Vithal Mandir Ward, of Katol Municipal Committee. Nominations for elections as Ward Members from several wards were to be filed on May 25, 1959. The nomination papers were scrutinised on May 27, 1959. At the time of scrutiny of nomination paper of opponent Nandkishore, applicant Yeshwanta had raised an objection to the nomination paper of Nandkishore being accepted on the ground that Nandkishore was a Patel of village Peth -Budhwara and, having been so appointed a Patel on January 22, 1952, was holding a salaried office under the Government and was thus disqualified to be a member of a local authority, viz. the Janapad Sabha and, consequently, was disqualified from being elected as a member of the Municipal Committee. That objection was disallowed. June 8, 1959, was the date of withdrawal of candidatures and after some withdrawals, the only candidates contesting the election from Ward No. 10 were the applicant Yeshwanta and the opponent Nandkishore. Poll was taken on June 29, 1959, and on counting of votes it was found that opponent Nandkishore had secured 197 votes whereas the applicant Yeshwanta had obtained 189 votes. The opponent Nandkishore was, therefore, declared elected as a member from Ward No. 10. The result of this election was published in the gazette as required by Rules on July 9, 1959.

(2.) PURPORTING to challenge this election by an election petition, the applicant presented an election petition, out of which this revision arises, on July 14, 1959, to the Clerk of the Court of the District Court at Nagpur. The election petition is styled as being filed in the Court of the District Judge, Nagpur. The petition having been received by the Clerk of the Court, the petitioner was directed to appear on July 18, 1959, before the Court. In the meanwhile, on July 15, 1959, there is an endorsement in the order -sheet under the signature of the Clerk of the Court that the petition was examined and ordered to be registered. On July 18, 1959, the order -sheet mentions as follows: -

(3.) THOUGH the Assistant Judge framed a preliminary issue with respect to the jurisdiction of the Court, all the issues were decided at the same time. The learned Judge held with regard to his jurisdiction that under Section 20 -A of the Municipalities Act it was not necessary that the District Judge or the Additional District Judge should be specially empowered by the Provincial Government and that only a Civil Judge was required to be so empowered by a notification. In his opinion, therefore, as the election petition was presented in the Court of the District Judge, Nagpur, it was properly presented and that in receiving it the Clerk of the Court only performed a clerical duty. Then, as regards the power of transfer to the Assistant Judge, the learned Judge held that the District Judge was empowered under Section 16 of the Bombay Civil Courts Act to refer to the Assistant Judge any matter under the special enactment and, therefore, the District Judge was competent to transfer the election petition for trial to the Assistant Judge and thus the Assistant Judge was held competent to try the election petition.