Pradeep Sharma vs Jivan Kumar Navlakha and Another

S.K. Seth, J.

This revision is u/s 26 of the M.P. Municipalities Act, 1961 (hereinafter referred to as ''the Act'' for short). By the impugned order dated 9-9-2005, learned First Additional District Judge, Jaora has dismissed the application filed by the applicant under Order VII Rule 11 of the CPC for rejection of the election petition.

Applicant is duly elected Councillor, from Ward No. 15 of Jaora Municipal Council in the election held in November, 2004. The non-applicant No. 1 who was the rival and defeated candidate challenged the election of the applicant by filing an election petition on grounds stated therein and prayed that the election of the returned candidate be declared void with the further prayer that he himself be declared duly elected. Said election petition was directly presented in the Court of First Additional District Judge, Jaora. Applicant filed an application as stated above for rejection of the election petition because it was not presented in the Court of District Judge, Ratlam a judicial as well as revenue district headquarter of Jaora. Application was opposed by the non-applicant No. 1. In the reply it was stated that there was no defect in the presentation of the election petition in the Court of First Additional District Judge, Jaora. After hearing rival submissions, learned First Additional District Judge, Jaora rejected the application placing reliance on the Division Bench decision in the case of Rajendra Prasad v. Mahendra Singh Bargahi reported in 2001 MPLJ 82.

Shri Champa Lal Yadav, learned Senior Counsel, frankly conceded that if the decision in Rajendra Prasad (supra) holds the field, then there is no merit in this revision. He, however placed reliance on another Division Bench decision in the case of Motilal Verma and Others Vs. Narainprasad Sampatram and Others, , and his only contention is that in view of the decision in Motilal (supra), an election petition could be presented only before the District Judge. Thus, the presentation of the election petition before the First Additional District Judge, Jaora in the present case was illegal. According to him, judgment in Motilal (supra), where it was held that a District Judge acts as persona designata was not considered by the subsequent Division Bench while deciding the controversy in Rajendra Prasad case (supra), as a result matter requires to be placed before a Larger Bench to resolve the apparent conflict in Motilal and Rajendra Prasad (supra). On the first flush, argument seemed attractive, however, on a deeper probe this Court finds that submission is devoid of substance.

Division Bench decision in Motilal case (supra) was in conflict with decisions reported in 1960 MPLJ 379, Ramchander v. Second Additional District Judge and 1958 MPLJ 459, Bhojraj v. State of M.P. The conflict was noticed by Hon''ble V.R. Newaskar, J., while hearing a revision petition u/s 26 of the Act. In order to resolve the conflict, his Lordship referred the matter to Hon''ble the Chief Justice for constitution of a Larger Bench. Upon this reference, a Full Bench of three Judges was constituted. Decision of the said Full Bench in the case of Babulal v. Dattalraya is reported in 1971 MPLJ 765. The Full Bench, after examining legal provisions and considering the decisions of the Supreme Court, held that the expression "District Judge" occurring in Section 20 of the Act does not mean that an authority has been conferred upon the District Judge to act as a persona designate but upon a Court duly established by law. It would be useful to reproduce the penultimate paragraph of the Full Bench, which reads as under:

That brings us to the consideration of the Motilal v. Narainprasad. The decision is based on the following factors, namely :- (i) In Rules 43 and 45 of the Cantonments Electoral Rules there is no mention of the District Court or the Principal Civil Court of original jurisdiction, but there is mention of only a District Judge, which according to several High Courts, has been understood to mean a persona designata; that is to say, Rules 43 and 45 do not assign one or more additional functions to the highest original Civil Court of the District already functioning under the Civil Courts Act, but they create a separate ad hoc Tribunal for the express purpose of enquiring into and disposing of the election petitions. (ii) Rule 46 confers the power of a Civil Court for purposes of summoning and enforcing attendance of witness ''as if he were a Civil Court'', (iii) Under the M.P. Civil Courts Acts the Courts of the District Judge and the Additional District Judge are distinct entities. In that case various decisions under the Hindu Marriage Act of this Court were brought to the notice of the Bench; but those cases were distinguishable on the ground that Rule 45 speaks only of a District Judge and Rule 46 speaks about the District Judge as if he were a Civil Court. That is not the case here. On this short ground, that case can be distiguished. The Bench very candidly observed:

The distinction is somewhat fine; but as the wording of the rules stands and in the absence of an appropriate notification by the State Government the Additional District Judge has no jurisdiction to enquire into election petition.

We may also point out that in that case the question whether the District Judge could be treated as a persona designata as defined in The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, was not at all considered. We, therefore, feel that the observations in that case are confined to that particular case and are not of general application.

(Emphasis is added)

Thus, it is clear that the decision in Motilal (supra), was considered by the Full Bench of three Hon''ble Judges and the efficacy of the judgment was diluted to the extent that the ratio of the said decision was confined to facts of that case only and it was made clear that the observations made in Motilal case (supra), were not of general application that the District Judge acts as a persona designata. Another Full Bench of this Court, in the case of Municipal Council, Khandwa Vs. Santosh Kumar and Others, , held, although in a different context, that the District Judge while deciding the election petition under the Municipality Act, does not act as a persona designata. That being the position, in the opinion of this Court, the law laid down in Rajendra Prasad (supra), completely eclipses view taken in Motilal (supra) and holds the field. I am fortified in taking this view by a Full Bench decision of Five Judges in Jabalpur Bus Operators Association and Others Vs. State of M.P. and Another, .

In this view of the matter and the emerging legal position, I do not find any infirmity, illegality with the order impugned passed by the First Additional District Judge, Jaora, so as to warrant interference by this Court in exercise of revisional jurisdiction conferred by Section 26 of the Act. No other point was urged nor has any contrary decision been brought to notice. In the result, this revision fails and it is hereby dismissed with costs of Rs. 5000/-. Counsels fee Rs. 2500/- if certified in addition to costs.

Office is directed to transmit the records of election petition alongwith copy of this order duly authenticated by the Registrar, to the Court of First Additional District Judge, Jaora within seven days. The First Additional District Judge, upon receipt of record along with the copy of this order, shall proceed to decide the election petition in accordance with law as expeditiously as possible.