ANUP PYARELAL v. BABOOLAL RAMBUX — 1977 DIGILAW 294 (MP)

JUDGMENT : ( 1. ) IN an election held in December 1974 Baboolal, non-applicant No. 1, was elected as Councillor of Sehore Municipality from ward No. 10. Anup Prasad, who is applicant in this revision, presented an election petition through his counsel challenging the election to the district Judge, Bhopal, on 30th January 1975. The District Judge on the same date transferred the election petition to the Additional District judge, Sehore, for disposal according to law. The election petition was; received on transfer on 31st January T975 by the Additional District Judge, sehore. An objection was taken by Baboolal that the election petition was not properly presented. This objection succeeded and the election petition was dismissed by an order passed by the Additional District Judge on 19th june 1975. It is against this order that the applicant Anup Prasad has come up in revision. ( 2. ) SUB-SECTION (1) of section 20 of the Madhya Pradesh Municipalities-Act, 1961, provides that "no election or selection under this Act shall be called into question except by a petition presented in accordance with the provisions of this section," Sub-section (2) provides that an election petition* may be presented- " (a) by any candidate at such election or selection; or (b) (i) in the case of an election of a Councillor, by any voter of the ward concerned; (ii) in the case of a selection of a Councillor, by any Councillor,. . . . . . ". Sub-section (2) further provides that the election petition is to be presented "to the District Judge, where such election or selection is held within the revenue district in which the Court of the District Judge is situated; and, in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election or selection is held and, if there be more than one such Additional District Judge within the said revenue district, to such one of them as the District Judge may specify for the purpose. " An election petition has to be presented within 30 days from the date on which the result of the election or selection is notified in the Gazette. " An election petition has to be presented within 30 days from the date on which the result of the election or selection is notified in the Gazette. The election petition is to be accompanied by a government treasury receipt showing a deposit of two hundred rupees in the case of election or selection to Class J and Class II Municipalities, and one hundred rupees in the case of election or selection to Class III or Class IV municipalities. These requirements are provided in sub-section (3) of section 30 of the Act. ( 3. ) THE civil district of Bopal comprises of three revenue districts, viz. . Bhopal, Sehore and Raisen. The Court of the District Judge, Bhopal, is situated in Bhopal revenue district and not in Sehore revenue district. The additional District Judge, Sehore, has the permanent seat of his Court at sehore. In this case, the election that is challenged was held in Sehore. As the Court of the District Judge, Bhopal, is situated outside the revenue district of Sehore, the District Judge had no jurisdiction to entertain the election petition. The jurisdiction to entertain an election petition vested in accordance with sub-section (2) of section 20 of the Act in the Additional district Judge, Sehore, because the permanent seat of his Court is located within the Sehore revenue district. ( 4. ) THE question then is whether there could be a valid transfer of the election petition to the Additional District Judge, Sehore, by the District judge, Bhopal, either under section 7 (2) of the Madhya Pradesh Civil Courts act, 1958, or section 24 of the Code of Civil Procedure when the District judge had no jurisdiction to entertain the petition. Section 7 (2) of the Civil courts Act provides that an Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the principal civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge. It is clear from the language used in this section that the functions which a District Judge can assign under this section must be those functions which he can himself discharge. It is clear from the language used in this section that the functions which a District Judge can assign under this section must be those functions which he can himself discharge. Now, when a District Judge has no jurisdiction to entertain an election petition, the trial of such an election petition is not a function of the District Judge which he can assign to the Additional District Judge. There could, therefore, be no transfer of the election petition under section 7 (2 ). As regards section 24 of the Code of Civil Procedure, it is settled law that there can be no transfer under this section when the Court in which the proceeding is instituted has patently no jurisdiction to entertain it. The defect in jurisdiction cannot be cured by transfer under section 24 of the Code even when the transferee court is competent to try the proceeding [see Ledgard v. Bull (I L R (1887) 9 All. 191 (P. C.) at p. 202.) and Raja Soap factory v. S. P. Shantharaj]. As in the instant case the election petition was presented to the District Judge who had no jurisdiction to entertain it, the presentation of the election petition was invalid. The District Judge could not assign or transfer the petition to the Additional District Judge and thereby cure the defect of presentation notwithstanding the fact that the Additional District Judge is competent to entertain the petition. ( 5. ) THE learned counsel for the applicant submits that in the instant case after the passing of the order of transfer, the District Judge instead of sending the petition in the ordinary course to the Additional District Judge handed over the petition to the counsel for the applicant for being delivered to the Additional District Judge and the counsel for the applicant handed over the petition to the Additional District Judge. It is argued by the learned counsel that, in effect, there was fresh presentation of the petition to the additional District Judge by the counsel for the applicant and this amounted to valid presentation of the petition under section 20 (2) of the Municipalities act. It is argued by the learned counsel that, in effect, there was fresh presentation of the petition to the additional District Judge by the counsel for the applicant and this amounted to valid presentation of the petition under section 20 (2) of the Municipalities act. It may be assumed for decision of this revision that the District Judge after passing the order of transfer did not send the petition in the ordinary course to the Additional District Judge, but handed over the petition with his order of transfer to the counsel for the applicant for being delivered to the additional District Judge and the counsel for the applicant handed over the petition to the Additional District Judge. The question that arises is whether this amounted to fresh presentation of the petition by the counsel for the applicant on behalf of the applicant to the Additional District Judge. In my opinion, this question must be answered in the negative. In handing over the petition along with the order of transfer passed by the District Judge, the counsel for the applicant was acting merely as an agent of the District judge. The counsel in doing the act of handing over the petition to the additional District Judge was not acting as agent of the applicant. Suppose, after the petition was received by the counsel for the applicant from the district Judge for being taken to the Additional District Judge, the applicant had asked the counsel not to hand over the petition to the Additional District judge but to destroy it. In such a situation, could the counsel refrain from handing over the petition to the Additional District Judge and destroy it as required by the applicant? It is clear, that the counsel could not do any of these things. He was bound by the order of the District Judge to take the petition to the Additional District Judge and to, hand over the petition to him along with the order of transfer. This illustration highlights that the position of the counsel in receiving the petition from the District Judge after the order of transfer and in handing it over to the Additional District Judge was not that of an agent of the applicant; rather in doing these acts, the counsel was acting under the orders of the District Judge as. his agent. This illustration highlights that the position of the counsel in receiving the petition from the District Judge after the order of transfer and in handing it over to the Additional District Judge was not that of an agent of the applicant; rather in doing these acts, the counsel was acting under the orders of the District Judge as. his agent. The petition along with the order of transfer constituted record of the Court and was in custody of the counsel for the applicant for being transmitted to the additional District Judge. The petition was not returned to the. applicant or his counsel on the ground that the District Judge had no jurisdiction. Had that been the case, the legal position would have been different. The handing over of the petition by the counsel for the applicant to the Additional District Judge cannot in the circumstances of the case be taken to be a presentation of the petition on behalf of the applicant. ( 6. ) THE learned counsel for the non-applicant No. 1 submitted before me that under section 20 of the Municipalities Act an election petition must be presented personally and cannot be presented through a counsel and as the petition in this case was admittedly presented by counsel, the presentation of the petition was invalid on this ground also. There is no merit in this contention. In my view, it is not necessary for a person to personally present an election petition under section 20. The District Judge or the Additional district Judge to whom a petition is to be presented under section 20 is not a persona designata but a Court. This has been authoritatively held by a full Bench of this Court in Babulal Bhikaji Mandloi v. Dattatraya Narayar (1971 M P L J 765 (F B) = A I R 1972 M P 1. ). The general principle is that when a new jurisdiction is conferred on an established Court, the ordinary rules of procedure applicable to that Court also apply in respect of the new jurisdiction unless the ordinary procedure is modified by the law conferring the new jurisdiction. This principle has been noticed and approved in Mandlois case. ). The general principle is that when a new jurisdiction is conferred on an established Court, the ordinary rules of procedure applicable to that Court also apply in respect of the new jurisdiction unless the ordinary procedure is modified by the law conferring the new jurisdiction. This principle has been noticed and approved in Mandlois case. There is nothing in the municipalities Act excluding the application of Order 3, Rule 1 of the Code of Civil Procedure which enacts a general rule that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party to such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader in that behalf. There is no provision either in section 20 of the Municipalities Act or anywhere else in that Act or in the Rules made thereunder that an election petition must be presented personally by the petitioner. In the absence of any such provision, the general rule enacted in Order 3, Rule 1, applies. The act of presentation of an election petition under section 20 of the municipalities Act is an act required or authorised by law to be done by a party within the meaning of Order 3, Rule 1. An election petition, therefore, can be presented by a pleader or an Advocate acting on behalf of the petitioner. The learned counsel for the non-applicant has drawn my attention to the Rules made under section 23 of the Municipalities Act. Section 23 lays down that an election petition shall be enquired into and disposed of according to such summary procedure as may be prescribed by the Rules. Rule 11 of the Rules made under this section confers certain powers exercisable by a Court under the Code of Civil Procedure on the Judge trying an election petition. It is argued by the learned counsel that the very fact that only some of the powers under the Code of Civil Procedure have been conferred by Rule 11 on the Judge trying the election petition shows that the entire Code is not applicable to the trial of an election petition. In my opinion, Rule 11 was framed as a matter of abundant caution. In my opinion, Rule 11 was framed as a matter of abundant caution. As earlier pointed out, the District Judge or the Additional District Judge on whom is conferred the jurisdiction to try an election petition under the Municipalities act is not a persona designata but an established Court. The normal powers of the Court which are conferred by the Code of Civil Procedure become applicable for the trial of an election petition. It was, therefore, unnecessary to confer some of these powers by Rule 11. Indeed, this is the view taken by the Full Bench in Mandlois case (see page 6 of the Report ). The presentation of the election petition, in my opinion, cannot be held invalid simply on the ground that it was presented by counsel. But as earlier stated by me, the handing over of the petition to the Additional District Judge by the counsel for the applicant, in the circumstances of this case, cannot be taken to be on behalf of the applicant and, therefore, there was no valid presentation of the petition. ( 7. ) THE revision fails and dismissed. There shall, however, be no order as to costs. Revision dismissed.