BIHARILAL Vs. RAMCHARAN

JUDGEMENT

(1.) THIS is petition under Article 226 of the Constitution, seeking ii writ of prohibition against the District Judge, Bhind who is hearing an election petition. The facts of the case go far back and will have to be stated at some length.

(2.) IN the year 1955 in, the town of Gohad a municipal election was held. The petitioner Biharilal was a candidate in Ward No. 3, and the first three respondents were his rivals. The petitioner secured the largest number of votes and was declared elected. The first respondent filed an election petition under Section 10 of the Madhya Bharat Municipalities Act, 1954 (Act No. 1 of 1954) read with Rule 131 of the Rules framed thereunder. Before the District Judge an objection was taken to his jurisdiction to entertain the election petition, which the District Judge overruled. Against the order of the District Judge and to seek a writ of prohibition a petition was filed in the High Court of Madhya Bharat, and the High Court acting on its own decision reported in Bhikam v. Haridas Modi, 1956 Madh B LJ (Bhopal) 156, (A), issued the writ. Thereafter the Madhya Bharat Legislature enacted a law called the madhya Bharat Municipalities (Second Amendment) Act, 1056 (Act No. 7 of 1956)creating a jurisdiction which the High Court had denied to the District Judge. In section 10 of the Madhya Eharat Municipalities Act, the provision ran as follows : "any voter aggrieved by an election or selection under this Act may within thirty days of the election or selection, submit election petition to the District Judge having jurisdiction, which shall be decided in accordance with the rules framed by the Government in this behalf". It was held by Dixit and Samvatsar JJ. that the district Judge had to be pointed out and invested with jurisdiction before he could entertain the election petition. Khan J. took the contrary view, but was in a minority. Dixit and Samvatsar JJ. felt that, the jurisdiction to hear election petitions election petitions could be validly conferred 'upon one District Judge for the whole of the State, and unless the District Judge was properly pointed out and his jurisdiction created, every District Judge in the State was not entitled to take up and deal with election petitions under Section 10 of the Act.

(3.) IN framing the amending law the Legislature supplied the want of jurisdiction. It framed an explanation which was to be deemed to be in force always, and it also provided for the re-opening of cases which under the writs of prohibition by the high Court or dismissal by the District Judge on the authority of the decision of the madhya Bharat High Court had been terminated. The explanation which was added to Section 10 was as follows :