The Municipal Council Attingal v. L Sadasivan Pillai
1962-02-27
C.A.VAIDIALINGAM
body1962
DigiLaw.ai
JUDGMENT C.A. Vaidialingam, J. 1. In this writ petition, Mr.P.Subramanian Potti, learned counsel for the petitioner, Muncipal Council, Attingal, challenges the order of the Additional District Judge, Trivandrum passed in O.P. No. 1 of 1958. 2. The petitioner appears to have challenged the right of the respondent to continue as a councillor or the petitioner-Municipal Council and as such issued a notice under section 53(1) of the Travancore District Municipalities Act, Act XXIII of 1116, disqualifying the respondent. 3. The respondent thereupon moved the District Judge, Trivandrum, in O.P: No. 1 of 1958 for determining the question as to whether he was so disqualified under section 53 (1) of the District Municipalities Act. The Jurisdiction of the District Judge itself was invoked by the respondent under section 54 (1) of the Travancore District Municipalities Act. 4. The Additional District Judge, to whom the original petition appears to have been transferred for hearing and disposal heard the matter and ultimately by his order, dated 17th March 1960, which is under attack no doubt, recorded some findings in favour of the petitioner-Municipal Council. But ultimately that authority is of the view that the respondent cannot be considered to be disqualified under section 53 (1) of the Travancore District Municipalities Act inasmuch as it is of the view that the bill in respect of which the allegation of non-payment is made had not been properly served on the respondent and ultimately it is of the view that if a proper notice had been served on the respondent the order of disqualification passed by the Chairman could be sustained. But inasmuch as it is of the opinion that there has been no proper service of demand on the respondent the order of the Chairman disqualifying the respondent under section 53 of the District Municipalities Act was set aside and it is that order of the Additional District Judge that is canvassed before me in these proceedings. 5.
But inasmuch as it is of the opinion that there has been no proper service of demand on the respondent the order of the Chairman disqualifying the respondent under section 53 of the District Municipalities Act was set aside and it is that order of the Additional District Judge that is canvassed before me in these proceedings. 5. Though there are certain contentions raised regarding the findings recorded by the Additional District Judge on facts as against the petitioner and though the learned counsel also attacked some of those findings, in my view, it is not open to this court to go into the correctness or otherwise of the findings so recorded so long as I am satisfied that there has been enough material before that authority from which it is possible to have come to a conclusion in the manner in which it has done. 6. But the more serious contention that has been raised before me by Mr. P. Subramanian Potti, learned counsel for the petitioner, is that under section 54 of the Travancore District Municipalities Act, jurisdiction to consider and adjudicate such matters is given only to the District Judge of the District in which the Municipality is situate and in this case as admittedly it is not the District Judge of the District that considered the matter but the Additional District Judge of the District the proceedings of that authority must be held to be invalid, illegal and void. 7. In this connection quite naturally the learned counsel placed reliance, upon the provisions of section 54 of the Travancore District Municipalities Act which is as follows- " 54 (1) Whenever it is alleged that any person who has been elected as a councillor is disqualified under section 51, section 52, section 53 or section 56, and such person does not admit the allegation or whenever any councillor is himself in doubt, whether or not he has become disqualified for office, under section 53 or section 56, such councillor or any other councillor may, and the executive authority, at the request of the council shall apply to the District Judge of the District in which the municipality is situated. (2) The said Judge, after making such inquiry as he deems necessary , shall determine whether or not such person is disqualified under section 51, section 52, section 53 or section 56, and his decision shall be final.
(2) The said Judge, after making such inquiry as he deems necessary , shall determine whether or not such person is disqualified under section 51, section 52, section 53 or section 56, and his decision shall be final. (3) Pending such decision the councillor shall be entitled to act as if he were not disqualified " Under section 54 (1) extracted above, a right is given to a person who has been disqualified to make an application before the District Judge of the District in which the Municipality is situated and power is given to the said Judge after making such enquiry to determine whether or not such person is disqualified under the various sections referred to therein. There is also provision in sub-section (2) of section 54 to the effect that the decision of the said authority shall be final. There in a consequential provision in sub-section (3) to section 54 to the effect that pending such decision the councillor shall be entitled to act as if he were not so disqualified. 8. The learned counsel placed considerable reliance upon the expression used in section 54 (1). " District Judge of the District in which the Municipality is situated ". in support of his contention that it is only the District Judge of the district and on that officer alone jurisdiction has been conferred to take up proceedings under section 54 of the Act. 9. In this connection, again the learned counsel referred me to some of the provisions contained in the Kerala Civil Courts Act, 1957, Kerala Act 1 of 1957. The learned counsel referred me to the establishment of the District Court under section 3(1) wherein it is provided that for the purpose of the Act the Government by notification in the Gazette can divide the State into several Districts and alter the limits and the number, of such districts. There is also provision under sub-section (2) to section 3 giving power to the Government to establish a District Court for each District and a Judge who should be called the District Judge shall be appointed. Section 4 deals with the appointment of Additional District Judges and is as follows : "4(1) When the state of business pending before a District Court so requires, one or more Additional District Judges may be appointed to that court for such period as is deemed necessary.
Section 4 deals with the appointment of Additional District Judges and is as follows : "4(1) When the state of business pending before a District Court so requires, one or more Additional District Judges may be appointed to that court for such period as is deemed necessary. (2) An additional District Judge shall discharge all or any of the functions of the District Judge under this Act in respect of all matters which the District Judge may assign to him, or which under the provisions of section 7 may be instituted before him, and in the discharge of functions he shall exercise the same powers as the District Judge." The learned counsel here again placed considerable reliance upon the provisions of section 3 (2) and also upon section 4 (2). It is Mr. Subramanian Potti's contention that section 3 contemplates the establishment of a District Court for a District and the appointment of a Judge for that court who alone is called the District Judge and though there is provision for appointment of an Additional District Judge under section 4 (1) of the Act, if the state of business pending before the District Court so requires nevertheless that Additional District Judge can discharge only those functions of the District Judge under the Act which the District Judge may assign to him. Therefore, the contention of the learned counsel is that the District Judge referred to in section 54 of the Travancore District Municipalities Act must really be co-related to the officer who is appointed as District Judge to whom under section 4 (1) no doubt, the work that the District Judge thinks necessary can be allotted for the purpose of being dealt with. 10. The learned counsel urged that it is only in respect of matters coming under that Act that jurisdiction has been given to a District Judge to transfer or allot work to an Additional District Judge and the function exercised by a District Judge under section 54 of the Travancore District Municipalities Act is not certainly, according to the learned counsel a matter which arises under the Civil Courts Act. 11. On the other hand, Mr. M. Krishnan Nair, learned counsel for the respondent raised the contention that the question of jurisdiction of the Additional District Judge, even assuming that there is some force in this contention raised by Mr.
11. On the other hand, Mr. M. Krishnan Nair, learned counsel for the respondent raised the contention that the question of jurisdiction of the Additional District Judge, even assuming that there is some force in this contention raised by Mr. Subramanian Potti in these proceedings, was admittedly not taken before that authority though the petitioner was represented by a counsel. In this connection here again Mr. Krishnan Nair, learned counsel, referred me to the Division Bench Judgments of this court reported in Kumaraswamy Reddiar v, Noordeen 1960 K.L.T. 778 and Kumaran v 1st Additional Income-tax Officer, Kozhikode 1960 K.L.T. 1340, wherein it has been held that the fact that objection to jurisdiction has not been taken before the authority at the time of hearing is a relevant matter which could be taken into account by this court when it considers the question as to whether it should exercise the discretion in favour of such a party under Article 226 of the Constitution. No doubt, Mr. Subramanian Potti in turn referred me to the more recent judgment of this court reported in Anantha Mallan v. Commissioner of Agricultural Income-tax 1961 K.L.J. 980 where the learned Chief Justice, sitting with Mr. Justice Raghavan has referred to the previous decisions adverted to above and has held that if the failure to raise the question of jurisdiction is not attributable to the negligence of the party concerned or it was due to ignorance then the fact that the question of jurisdiction has not been raised is not fatal in the matter of giving relief to a person. 12. I am not certainly impressed with the contention of Mr. Subramanian Potti that in this case when the petitioner was admittedly represented by counsel and the question of jurisdiction is a pure question of law there has been a failure in not raising it not due to negligence and was due to ignorance. On that ground I will be perfectly justified in rejecting this writ petition, but nevertheless I have heard arguments from Mr. P. Subramanian Potti even regarding the actual merits that arise for decision. 13. So far as this aspect is concerned, Mr.
On that ground I will be perfectly justified in rejecting this writ petition, but nevertheless I have heard arguments from Mr. P. Subramanian Potti even regarding the actual merits that arise for decision. 13. So far as this aspect is concerned, Mr. Krishnan Nair, learned counsel, urged that though the officer who disposed of this application under section 54 is called Additional District Judge, nevertheless there is only one District Court for a District as will be clearly seen from the provisions of section 3 of the Kerala Civil Courts Act. But when there is a necessity created because of the accumulation of work or because of the particular state of business in a District there is provision under section 4 for making an appointment of an Additional District Judge. But nevertheless the learned counsel urged that Judge also is a District Judge of the District. Therefore, so long as the Additional District Judge has got all the powers of the District Judge, though for purposes of administrative convenience the District Judge may have certain other administrative functions to discharge, nevertheless both of them so far as judicial matters are concerned have got coextensive judicial jurisdiction. Mr. Krishnan Nair drew my attention to the provisions contained in section 11 (1) of the Kerala Civil Courts Act wherein it is provided that the jurisdiction of the District Court and of the subordinate court extends, subject to the provisions of the Code of Civil Procedure, 1908, to all original suits and proceedings, of a civil nature. If that is so, the Additional District Judge who is a Judge of the District Court has got jurisdiction to take up proceedings of a civil nature also. The mere circumstance that for purposes of administrative convenience some slight distinction is made between the Additional District Judge and the District Judge as such is of no consequence, according to the counsel. 14. I am in entire agreement with the contentions of Mr. M. Krishnan Nair, learned counsel for the respondent. 15. The provisions of section 3 of the Kerala Civil Courts Act clearly shows that there can be only one District Court for each District and that District Court may have more than one District Judge and all the officers, whether they are called District Judge as such or Additional District Judge have got the same jurisdiction and powers in respect of judicial matters.
May be for purposes, as pointed out by Mr. Krishnan Nair, learned counsel for the respondent, of administrative convenience matters which are instituted in the District Court as such are allotted by the District Judge but once that allotment is made the Additional District Judge has got equal powers as the District Judge to deal with matters posted before him. Section 11 (1) of the Kerala Civil Courts Act also shows that there is coextensive jurisdiction regarding the functions to be exercised by the District Court which may consist of more than one Judge regarding original suits and proceedings of a civil nature. 16. It may be that section 54 of the Travancore District Municipalities Act confers jurisdiction upon the District Judge of the District but it cannot certainly be gainsaid that jurisdiction that is conferred under section 54 (1) is not a proceeding of a civil nature which certainly was within the jurisdiction of the District Judge of the District and by virtue of section 4 (2) of the Kerala Civil Courts Act it was within his competence also to transfer that work for being dealt with by the Additional District Judge of the District. Therefore, the mere circumstance that the proceedings initiated under section 54(1) of the Travancore District Municipalities Act by the respondent have been dealt with not by the District Judge but by the Additional District Judge, in my view, does not in any manner make the proceedings illegal or void. 17. As pointed out earlier, all the other contentions are really attacks made on findings of facts recorded by that authority. 18. The writ petition fails and is dismissed; but there will be no order as to costs.