BABULAL BHIKAJI MANDLOI Vs. DATTATRAYA NARAYAN

JUDGEMENT

(1.) AN election for Mandleshwar Municipality was held at Mandleshwar where the court of the District Judge is situate for the Civil District of West Nimar, mandleshwar is also within the Revenue District. Section 20 of the Madhya Pradesh municipalities Act, 1961, provides for filing an election petition. The section reads as under:

(2.) ON the other hand, it was urged before the learned Single Judge that the jurisdiction conferred on the District Judge under Section 20 of the M. P. Municipalities Act is as the presiding officer of an established Court and not as a persona designata and that it was consequently open for him to act in exercise of its general powers under the Madhya Pradesh Civil Courts Act or Section 24 of the civil Procedure Code to transfer the petition to the Additional District Judge. The provision contained in Section 26 (2) of the M. P. Municipalities Act providing for a revision is indicative of the fact that the District Judge does not act as a persona designata. Reliance was placed in support of this contention on a Division Bench decision of this Court in Ramchandra v. Second Additional District Judge, 1960 mplj 379 and Bhojraj v. State of M. P. , 1958 MPLJ 459 = (AIR 1958 Madh Pra 286 ). In those cases also similar provisions of the C. P. and Berar Municipalities act, 1922, were considered and it was held that the District Judge did not act as a persona designata. Thus, in the first set of cases the conclusion is based on the terms of the special statute which, it is alleged, excludes the power of an additional District Judge to hear and decide an election petition; while the second set relies upon the principle underlying the case of National Telephone Co. Ltd. v. Post Master General, 1913 AC 546, that when an election petition is required to be heard by the District Judge it is merely by way of extension of its general jurisdiction and not because of its being created an ad hoc tribunal or as persona designata and that the District Judge consequently could act under its power of transferring the case under the provisions of the Civil Courts Act or under Section 24 of the Civil Procedure Code. Because of this apparent conflict, the learned single Judge has referred the following question for the decision of the Full Bench: "whether it is competent for an Additional District Judge whose Court is situated at the same place where the Court of District Judge is situated to hear and decide an election petition which the District Judge has transferred to it for disposal having regard to the provisions contained in section 20 of the Madhya Pradesh Municipalities Act, 1961 ?"

(3.) IT would be helpful at this stage to discuss some cases of the Supreme Court in which the question of persona designata has been considered. The first case is that of Central Talkies Ltd. v, Dwarka Prasad, AIR 1961 SC 606. Section 3 of the u. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) provides that "no suit shall, without the permission of the District Magistrate, he filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds. " Section 2 (d) of the said Act defines "district magistrate" as under : "'district Magistrate' includes an officer authorized by the district Magistrate to perform any of his functions under this Act. " In this case, the district Magistrate, to start with, made over the case to the Additional District magistrate, but the latter sent back the case to the District Magistrate asking for a transfer because he had been approached on behalf of one of the parties. The district Magistrate thereafter passed an order transferring the case to another additional District Magistrate for disposal. The question raised before the Supreme court was as to whether the District Magistrate could transfer the case as indicated above. In that case, it was urged that on the wording of the U. P. (Temporary) Control of Rent and Eviction Act the 'district Magistrate' mentioned in section 3 was a persona designata and that: either he or an officer authorized by him to perform his functions could grant the permission; inasmuch as the District magistrate had not authorized the Additional District Magistrate, to whom the case was transferred, and as the transfer in question was in exercise of the general power of transfer, the Additional District Magistrate acted without jurisdiction. Their Lordships of the Supreme Court repelled this contention. They held: "the argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of 'district Magistrate' the special authorisation by the District Magistrate had the effect of creating officers exercising the powers of a District Magistrate under the Eviction act. To that extent, those officers would, on authorisation, be equated to the District Magistrate. A persona designata is 'a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. ' (See Osborn's concise Law Dictionary, 4th Edn. , p. 253 ). In the words of Schwabe, C. J. in Parthasaradhi Naidu v. Koteswara Rao, ILR 47 Mad 369 = (AIR 1924 Mad 561) (FB), persona designata are 'persons selected to act in their private capacity and cot in their capacity as Judges' The same consideration applies also to a well-known officer like the District magistrate named by virtue of his office, and whose powers the additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Election Act. " (p. 609 ). It was, therefore, held that inasmuch as under Section 10 (2) of the Code of criminal Procedure the Additional District Magistrate could exercise all the powers of the District Magistrate, the Additional District Magistrate, to whom the case was transferred, could have validly disposed of the application for granting permission to evict. From this decision of their Lordships of the Supreme Court it is clear that a person ascertained as a member of a class or as filling a particular character cannot be dubbed as a persona designata. A person to be called a 'designated person' must be selected to act in his private capacity and not in his capacity as a judge.