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High Court Of Madhya Pradesh
G. P. Singh, J.
ANUP PYARELAL
Versus
BABOOLAL RAMBUX
Decided On : Aug 17,1977
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 petiti on. The jurisdiction to entertain an election petition vested in accordance with sub-section (2) of S. 20 of the Act in the Additional District Judge, Sehore, because the permanent seat of his Court is located within the Sehore revenue district.
(Para 3)
It is clear from the language used in this section 7 (2) of the M.P. Civil Courts Act, that the functions which a District Judge can assign under it 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).
(Para 4)
The election petition was presented to District Judge, Bhopal, who entertained it. The District Judge passed the order transferring the petition to the Additional District Judge Sehore and gave the petition to the counsel for petitioner to take it to the Court of the Additional District Judge Sehore. The counsel acted as agent of the Court and the presentation was not validated.
(Para 5)
(2) Civil P.C., 1908 – S. 24-power to transfer a case-the Court transferring the case should itself have the jurisdiction to try the case.
There can be no transfer under section 24, Civil P.C., when the Court in which the proceeding is instituted has patently no jurisdiction to entertain it.
(Para 4)
(3) Civil P.C., 1908 – O. 3, R. 1-law not requiring an election petition to be presented personally by the petitioner-can be presented by his counsel.
(Para 6)
(4) Municipalities Act, 1961 (M.P.) – S. 20-election petition-may be presented by the Counsel for petitioner.
(Para 6)
(1) Municipalities Act, 1961 (MP) - S. 20 (2) - election petition - to which District Judge or Additional District Judge may be presented-election held at Sehore - election petition presented to District Judge Bhopal and not to the Additional District Judge Sehore - presentation not proper - District Judge transferring the petition to Additional District Judge Sehore - defect in presentation not cured-Civil Court Act, 1958 (MP) - S. 7 (2).
(2) Civil Courts Act, 1958 (MP) - S. 7 (2) - the District Judge having no jurisdiction to try a case - cannot transfer the case to an Additional District Judge having jurisdiction - Civil P.C., 1908 - S. 34.
(3) Civil P.C., 1908 - S. 24 - scope of.
Section 20 (2) of the M.P. Municipalities Act, 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”. [Para 2
The civil district of Bhopal 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. [Para 3
It is clear from the language used in section 7 (2) of the M.P. Civil Courts Act 1958 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 regard 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 proceedings. AIR 1965 SC 1449 and 9 All 191 (PC) relied on. [Para 4
(4) Practice (Civil)-District Judge returned petition to counsel for delivering it to Additional District Judge-counsel acts as agent of District Judge-presentation to Additional District Judge is not fresh presentation. [Para 5
(5) Municipalities Act, 1961 (MP) - S. 20 (2) - election petition-may be presented by the counsel for petitioner - Civil P.C., 1908 - O. 3, R. 1.
(6) Civil P.C., 1908 - O. 3, R. 1 - particular enactment not making presentation by petitioner mandatory - petition may be presented by a counsel.
There is nothing in the Municipalities Act excluding the application of Order, 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 there under 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. [Para 6
(7) Municipalities Act, 1961 (MP) - S. 20 - District Judge deciding election petition-is not persona designata-acts as a Court-ordinary rules of procedure apply.
The District Judge or the Additional District Judge to whom a petition is to be presented under section 20 of the Municipalities Act is not a persona designata but a Court. The ordinary rules of procedure apply to such Court, unless the ordinary procedure is modified by the Act. 1972 JLJ 53 (FB) relied on. [Para 6
(8) Municipalities Act, 1961 (MP) - S. 23 - Rule 11 - operation of O. 3, R. 1, CPC not barred. [Para 6
( 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. 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
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