M DEIVANAYAGAM PILLAI Vs. PTSDIWAN MOHIDEEN ROWTHER

JUDGEMENT

(1.) This is an application to revise the order of the Subordinate Judge of Tinnevelly refusing to try an election petition presentd under the District Municipalities Act V of 1920. The petitioner and respondents 1 and 2 were candidates at an election held on 1 5-3-1921 to fill up two vacancies in the Tinnevelly Municipality. The petitioner is an unsuccessful candidate. The respondents 1 and 2 were declared duly elected. Under Rule 1 for the decision of disputes as to the validity of an election held under the Madras District Municipalities Act the petitioner applied within 7 days to the Subordinate Judge of Tinnevelly for a declaration that the election of respondents 1 and 2 were invalid on various grounds. The Subordinate Judge who at first granted an interim injunction ultimately refused to try the case on the ground that he had no jurisdiction to try the election petition. I must at the outset say that it is very difficult to follow the reasoning of the learned Subordinate Judge. Rule 1 makes it quite clear that the petition should be presented to the District or Subordinate Judge having jurisdiction . The words having jurisdiction mean having territorial jurisdiction over Municipalities to fill up vacancies in which the election is held and the petitioner was perfectly justified in going to the Court of the lowest jurisdiction for obtaining relief under the rules framed by the Government. But the question is whether I should revise the order which appears on the face of it to be illegal. Under the Madras District Municipalities Act, the officers who can try an election petition are the District and Subordinate Judges. The question is when they entertain or refuse to entertain an election petition whether they act as Courts as defined by the Civil Procedure Code or as mere officers who are invested with jurisdiction to try a particular class of cases, namely, election petitions.

(2.) Mr. Swaminatha Aiyar raised a preliminary objection that the High Court had no jurisdiction to revise an order passed by the District or Subordinate Judge under the rules framed under the Madras District Municipalities Act. The case which is almost on all fours with the present is Balaji Sakharam V/s. Merwanji Nowroji (1896) ILR 21 B 279. In that case a Bench of the Bombay High Court held that "District Judge acting under Section 23 of the Bombay District Municipal Act (Amendment Act II of 1884) is not a Court within the meaning of the word in Section 622 of the Civil Procedure Code and the High Court has no jurisdiction to revise his order refusing to set aside an election" and that it could not interfere with an order as to costs made by him. Section 23 reads thus: If the validity of any election of a Municipal Commissioner is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may at any time within ten days after the date of the declaration of the result of the election apply to the District Judge of the District within which the election has been or should have been held. The District Judge may, after such enquiry as he deems necessary, pass an order for confirming or amending the declared result of the election, or for setting the election aside. "The learned Judges observe at page 281." The District Judge in the present case is neither of these and the order can have no application to him. He is merely a persona designaia, and if he has jurisdiction at all to award costs, there is nothing to prevent him from awarding them on the scale he has adopted. "Though the Madras District Municipalities Act uses the word Court in Secs.47 and 60, it has carefully avoided the use of the word court in other sections and the rules framed under the Act which have the same force as the sections enacted by the legislature use only the words District and Subordinate Judge . It cannot be contended with any show of reason that by the use of the words District Judge and Subordinate judge the Legislature intended that the District Court and Sub-Court should have jurisdiction. If that were so the Legislature could have made it quite clear and the rule framed under the Act would have put it beyond question. I may also refer to Vijiaragavalu Pillai V/s. Theagaraya Chetti (1913) I.L.R. 38 Mad. 581 : 27 M.L.J. 227 where it was held that the High Court had no jurisdiction to revise an order passed by a Presidency Magistrate in an enquiry held by virtue of the rules framed by Government under the Madras City Municipal Act whereby a Magistrate may decide as to the competency or otherwise of a candidate for a Municipal election. The learned Judges held that the Magistrate is not a court subject to the appellate jurisdiction of the High Court within the meaning of that word in Section 15 of the Charter Act and that he was in the position of a referee between the President of the Municipal Corporation and the candidate."

(3.) There is also a case in the same volume Vasudeva Aiyar V/s. The Negapatam Dsvastanam Committee 1913 I.L.R. 38 M. 594 : 25 M.L.J. 536 At p. 598 the learned Chief Justice refers to Balaji Sakharam V/s. Merevanji Nowroji (1806) I.L.R. 21 B 279 in these terms.: "There the question arose with reference to a section of the Bombay District Municipal Act (Amendment Act) of 1884. That enactment contains a section ( Section 23) providing that, where the validity of any election of a Municipal Commissioner is brought in question, the District Judge, after such enquiry as he deems necessary, may make an order confirming the election or setting it aside. The Chief Justice and Parson, J. were of opinion that "A District Judge acting under Section 23 of the Bombay District Municipal Act (Amendment Act) 1884 is not a court within the meaning of the word in Section 622 of the old Civil Procedure Code". They suggest that he was a persona designata apparently for a specific purpose. That seems to be so." In the state of the authorities it is impossible to contend that the Madras Legislature intended to treat the officers who are to try an election case as courts either within the meaning of Section 115 C.P.C. or Section 107 of the Government of India Act. Though I hold that the Subordinate Judge's order is utterly illegal as he had jurisdiction to try the case I am constrained to dismiss the petition with costs as the High Court has no jurisdiction to interfere with orders passed on petitions presented under the rules for the decision of disputes as to the validity of an election.