BAMMIDI NAGULA ALIAS NAGULA Vs. AVBHANOJI ROW

JUDGEMENT

(1.) This is a revision petition against the order dismissing the election petition filed by the petitioner before Sri T. Srirangam Naidu who was the Subordinate Judge of Vizagapatam and Election Commissioner. The petition was filed for a declaration that the election of the respondent was void and for a declaration that the petitioner had been duly elected. The grounds on which the petition was filed were (1) that the respondent was disqualified for election as Councillor under Clause (2) of Section 49 of the Madras District Muncipalities Act in asmuchas he is a partner and director of the General Engineering and Trading Corporation, Ltd., Vizagapatam, interested in a subsisting contract with the Municipal Council, Vizagapatam, (2) that he was also disqualified under Section 49 (2) of the Madras District Municipalities Act since the respondent being a hereditary member of the Managing Committee of the Mrs. A.V.N. College is the Official Superior of the Sitting Councillor Sri V. Sambamurthy Somayaji, who is a lecturer in that college; and (3) that the election of the respondent was void, as an offence falling under Chapter IX-A of the Indian Penal Code was committed with the connivance of the respondent or his agent who actively abetted the commission of the offence by one Saketi Moses who applied for a ballot paper falsely personating Chintagunta Moses. The learned Subordinate Judge, who was the Election Commissioner, held against the petitioner on all these points and dismissed the petition. The petitioner has now applied for revising that order under Section 115 of the Civil Procedure Code.

(2.) A Preliminary objection is taken that the petition does not lie because under the rules framed for the decision of the election disputes under the Madras District Municipalities Act, 1920, an election Commissioner exercising Jurisdiction under these rules shall be deemed to exercise such jurisdiction as a persona designata and: not in his capacity as a Judge of the Court over which he presides. The rules referred to were framed under G.O. No. 1609 L.A., dated 4 May, 1940. The proviso to Rule 2 states that an Election Commissioner exercising Jurisdiction under these rules shall be deemed to exercise such Jurisdiction as a persona designates and not in his capacity as a Judge of the Court over which he presides. Further under Sub-clause (3) of Rule II, the order of the Election Commissioner under Sub-rules (1) and (2) shall be final, that is, any adjudication which the Election Commissioner makes on an enquiry as to the validity of the election shall be final under the rules. Prior to the framing of these rules, the Full Bench in the case reported in Parthasarathi Naidu V/s. Koteswara Rao (1923) 46 M.L.J. 201 : I.L.R. 47 Mad.369 (F.B.) held with reference to a petition under the Local Boards Act that: A District or Subordinate Judge in deciding an election petition presented before him under the Rules issued by the Local Government under the Local Boards Act, 1920, is acting not merely as a persona designata, but as a Court in the exercise of its ordinary jurisdiction extended for that purpose"; consequently the High Court is competent to exercise its powers of revision over decisions in election petitions. But in the rules then framed by the Local Government there was no corresponding provision as the one we find under the rules framed by G.O. 1609 L.A., dated 4th May, 1940. This Full Bench decision was referred to in a later case reported in Athimoolam Servai V/s. Gopalakrishna Kone (1927) 54 M.L.J. 269. That was a case under the District Municipalities Act where, following the Full Bench decision, Jackson, J., held that a Sub-Judge holding the election enquiry was not a persona designata and that his order could be interfered with in revision. But the learned Judge observed: If the Government had intended the election enquiry to be held by a persona designata, they could easily have recast the rule to put this beyond all doubt as soon as their original drafting had been interpreted in a contrary sense. There was no rule then like the one which is now under consideration. Now that a rule has been framed that an election commissioner shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as Judge of (he Court over which he presides, it is for consideration whether the High Court could under Section 115, Civil Procedure Code, interfere in revision. The language of Section 115 is clear and it says that the High Court may call for the records of any case which has been decided by any Court subordinate to that Court and in which no appeal lies thereto. The reference is only to a Court, not even to a judge and much less to a persona designata. In view of the wording of Section 115 and in view of the clear language of the rule, I do not think that it is competent for the petitioner to agitate this question in a revision petition under Section 115, Civil Procedure Code.

(3.) The learned Counsel for the petitioner argues that notwithstanding the rule, this Court has the power to interfere in a case of this kind. I am unable to agree with this contention. He referred me to the Full Bench decision in Arjun Rautara V/s. Maharaja Krishna Chandra Gajapati Narayan Deo (1941) I.L.R. 20 Pat. 1 (F.B.) That was a case under the Orissa Tenancy Act where the Rent Suit Deputy Collector dismissed the suit for recovery of arrear mutation fee and interest due upon a sale deed holding that the Revenue Court had no jurisdiction to entertain it. An appeal from the dismissal of the suit in fact lay to the District Judge but was wrongly filed before and entertained by the Collector. The question was whether the High Court under Section 115, Civil Procedure Code, had jurisdiction to revise the Collector's order. It was held that the High Court "had Jurisdiction to revise the Collector's order. It was further held that the word " final " in Section 204 (2) merely indicates that there is no right of appeal. But this decision is not of assistance in deciding the point at issue whether in the face of a specific rule framed in pursuance of the rule-making power given to the Local Government under Section 303 of the District Municipalities Act, it could be held that the election commissioner is a Court whose decision would be interfered with in revision under Section 115 of the Civil Procedure Code. I hold that the petition is not competent and that it should be dismissed with costs.