An election petition is maintainable without service of notice under Section 80 of the Code of Civil Procedure.

Jyotirmay Bhattacharya, J.

This first miscellaneous appeal arises out of an order being No. 4 dated 8th May, 2015 passed by the learned District Judge, Nadia at Krishnagar in Misc. (Election) Case No. 17 of 2015 whereby the appellant's election petition was dismissed by the learned District Judge while considering the appellant's application for interim injunction filed under Section 151 of the Code of Civil Procedure in connection with the said election petition. As a matter of fact, not only the appellant's application for interim injunction was rejected, but the main election petition was also dismissed by the impugned order.

2. The legality and/or propriety of the said order is under challenge in this first miscellaneous appeal at the instance of the appellant who was the petitioner before the learned District Judge.

3. At the time of hearing of the first miscellaneous appeal for its admission, a question has cropped up as to whether such an order is assailable in appeal before this Hon'ble Court or is assailable in the revisional jurisdiction of this Court. Such question was raised in the context of the provisions contained in Sections 74, 75 and 76 of the West Bengal Municipal Elections Act, 1994.

4. Section 75 of the said Act prescribes the procedure for filing an election petition. It also prescribes the limitation within which such election petition can be presented. It also provides the forum before which such election petition can be filed. Condition for entertaining such election petition has also been mentioned therein. It is provided that such election petition will be entertained only on deposit of certain amount of specified money in Court as security towards cost. The proviso added to the said provision prescribes the circumstances in which the legality of any election cannot be called into question by way of filing an election petition before the prescribed forum.

5. Sub-section (2) of Section 75 provides that the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, in the matter of adjudication of an election petition under sub-section (1).

6. Presently we are concerned with the forum before which such election petition can be presented.

7. As per Section 75(1) of the said Act such an election petition can be presented before the District Judge of the district within which the election has been or should have been held. The District Judge has been defined in Section 74 of the said Act in the following manner :-

"Definition. - In this Chapter, "District Judge" shall mean, -

(a) for the purposes of elections to the Kolkata Municipal Corporation constituted under the Kolkata Municipal Corporation Act, 1980, the Chief Judge of the Court of Small Causes of Calcutta, or

(b) for the purposes of elections to the Siliguri Municipal Corporation constituted under the Siliguri Municipal Corporation Act, 1990, the District Judge of Darjeeling or the District Judge of Jalpaiguri as the State Government may, by notification,

(c) for the purposes of elections to a Municipality in any district, the District Judge of that district."

In this context, a question came up for consideration before this Court as to whether when the District Judge holds an enquiry with regard to an election petition he acts as persona designata or as a court.

8. According to Mr. Tapan Kumar Mukherjee, learned senior counsel, appearing for the State-respondent when an election petition is considered by the District Judge, he acts as a persona designata. In support of such contention, Mr. Mukherjee has referred to the provision contained in Article 243ZG (b) of the Constitution of India which provides that notwithstanding anything in this Constitution, no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

9. Mr. Mukherjee lays much emphasis to the expression 'authority' us