ABDUL RAZAK Vs. KULDIP NARAIN

JUDGEMENT

(1.) This is an application for revision of an order passed by the District Judge of Gaya as Election Commissioner under the Bihar District Board Election Petitions Rules, 1939, setting aside an election held under the Bihar District Board Electoral Rules, 1937. The application was originally heard by Agarwala J. but was referred by him to a Division Bench. In May 1939 there was a general election of members of the District Board, Gaya. The petitioner and the opposite party were the only candidates for election from Electoral circle No. 9, Police station Barachatti, District Gaya. They filed their nomination papers before the Returning Officer, who was the Sub-divisional Officer of Gaya, Sadar, on the appointed date, i.e., 18 April 1939. The nomination papers were filed in the prescribed form, i.e., Form 7. Item 1 in that form is "name of the electoral circle for which the candidate is nominated." The description given against this item in the nomination paper of the opposite party was "police station Barachatti (Gaya), circle No. 9," ft whereas the description given in the Electoral Roll was "Electoral circle No. 9, Police station Barachatti." The scrutiny of nominations was held by the Returning Officer on 19th April 1939. He rejected the nomination paper of the opposite party with the following remark "rejected as name of Electoral Circle is not properly described." There being no other candidate, the petitioner was declared to be duly elected under Rule 33(2).

(2.) The petitioner's name was published, as required by Section 9, Bihar and Orissa Local Self-Government Act of 1885, in the Bihar Gazette on 16 August 1939. In the meantime the Bihar Government in exercise of the powers conferred by Section 138(a), Bihar and Orissa Local Self-Government Act, framed rules called the Bihar District Board Election Petitions Rules, 1939, which were published in the Bihar Gazette on 8 July 1939. In accordance with these rules, the opposite party filed an election petition on 29 August 1939, before the District Judge, Gaya, as Election Commissioner, asking that the election of the petitioner be declared void. Rule 16, Election Petitions Rules, provides, inter alia, that if in the opinion of the Election Commissioner the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the election of the returned candidate shall be void. The District Judge held that the rejection of the nomination paper of the opposite party was quite unjustified and improper and that the result of the election was materially affected by the improper rejection. He accordingly declared the election of the petitioner as void. His decision is final according to Rule 22, Election Petitions Rules, hence this application in revision.

(3.) The first question that arises for our consideration is whether the Election Commissioner whose order is being challenged is a Court, and if so, whether he is a Court subordinate to the High Court within the meaning of Section 115, Civil P.C. On the question whether the Election Commissioner is a Court, I think th0at the decision of the Full Bench of this Court in Mt. Dirji V/s. Srimati Goalin reported in A.I.R. 1941 Pat. 65 affords a complete answer. In that case it was held that a Commissioner under the Workmen's Compensation Act (Act 8 of 1923) is a Court. The tests laid down there are fully satisfied in the present case. To use the words of Pazl Ali J. who delivered the judgment (Harries C.J., and Manohar Lall J. agreeing), the Election Commissioner constitutes an independent tribunal and Ms function is to judge and decide and not merely to enquire and advise, and in judging or deciding the matters before him he has to proceed judicially and not arbitrarily