RAGHUNATH KESHAV KHADILKAR Vs. POONA MUNICIPALITY

JUDGEMENT

(1.) These are two Letters Patent appeals against a judgment of Mr. Justice Macklin. The appellant before us had made a petition to the Court of the District Judge of Poona under Section 15 of the Bombay Municipal Boroughs Act, 1925, in connection with the triennial elections of the Poona City Municipality which were held on February 1942. The appellant was one of the candidates. The application was made against the Poona City Municipality and the three other candidates who had stood for election from ward No. 15 and who were declared elected. The petitioner alleged that the electoral roll prepared by the first opponent, the Municipality, contained names of persons who were dead and who were not available in Poona on the date of the election and that there were also other defects in the electoral roll which facilitated personation and other malpractices. He also made certain allegations against some of the opponents. The application was transferred to the Extra Assistant Judge for disposal.

(2.) The learned Assistant Judge heard the application and after some evidence had been led he made an order (that the marked copies of the electoral roll should be inspected to verify if votes had been recorded in the names of voters mentioned in the application. He directed his bench clerk to inspect the copies and submit a report, the parties or their pleaders being allowed to remain present at the time of the inspection. Against this order two applications, Nos. 363 and 398 of 1942, were filed, one by the Municipality, the first opponent, and the other by Mr. G.M. Nalavade who had been opponent No. 4 in the original application. It was contended in both the applications that the learned Assistant Judge had acted without jurisdiction in ordering the inspection of the marked copies of the electoral roll and that Rule 45 of the Election Rules of the Municipality had been wrongly construed. The applicants prayed that a writ of certiorari should be issued and the record and proceedings called for or the order made by the Assistant Judge set aside under the revisional powers of the High Court under Section 115 of the Civil P. C., or under the general powers of superintendence and revision vested in the High Court. Both applications were heard together by Mr. Justice Macklin, who held that under Rule 45 of the Poona City Municipal Election Rules the marked copies of the voters lists could only be produced, opened and inspected under the orders of " a competent Court", that a District Judge or Assistant Judge hearing an application made under Section 15 of the Act was a persona designata and not a Court, and therefore the Assistant Judge who heard the petitioner's application acted without jurisdiction in ordering the inspection of the marked copies of the electoral roll. He therefore set aside the order., Against this decision the petitioner has filed appeals under the Letters Patent.

(3.) A preliminary objection has been taken by Mr. A. G. Desai on behalf of the first opponent, the Municipality, that no appeal lies under Clause 15 of the Letters Patent against the decision of Mr. Jusitice Macklin. The relevant portion of Clause 15 provides that an appeal shall lie to the High Court from the judgment of a single Judge of the High Court (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction). Mr. Justice Macklin's judgment was not given in the exercise of appellate jurisdiction, or in the exercise of the power of superintendence under Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction. Mr. Desai's contention however is that it was given in the exercise of revisional jurisdiction and therefore no appeal can lie under the Letters Patent. The question therefore is whether the judgment of Mr. Justice Macklin was one given in the exercise of revisional jurisdiction.