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Roshan Bux Vs. Abdul Aziz and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad
Decided On
Reported inAIR1945All405
AppellantRoshan Bux
RespondentAbdul Aziz and ors.
Excerpt:
.....of action for this suit, that the order rejecting the nomination paper was passed under section 7, town areas act, and was perfectly valid, that the suit was barred by rule 11, town areas election rules, and that defendant 2 was not actuated by malice or any other improper motive in rejecting the nomination paper of the plaintiff. on his failure to demolish the constructions, the person served with the notice was prosecuted for an offence under section 307, municipalities act. it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. it is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where..........of action for this suit, that the order rejecting the nomination paper was passed under section 7, town areas act, and was perfectly valid, that the suit was barred by rule 11, town areas election rules, and that defendant 2 was not actuated by malice or any other improper motive in rejecting the nomination paper of the plaintiff.3. the court of first instance found: (1) that the order of rejection of the nomination paper was justified by the provisions of section 7, town areas act, and it was not malicious or illegal, (2) that the order of rejection of the nomination paper was final by reason of rule 11, town areas election rules, and it could not be challenged in the civil court except on the ground that it was ultra vires or passed without jurisdiction or passed in contravention of.....
Judgment:

Wali Ullah, J.

1. This is an appeal by the plaintiff against the decree passed by the lower appellate Court dismissing the appeal against the decree of the Court of first instance which dismissed the suit with costs. The suit out of which this appeal has arisen was instituted for a declaration that proceedings relating to the election of a Chairman of the Town Area of Nawabganj, District Bareilly, from 20th April 1940 to 28th April 1940, were illegal and void. It was also prayed that an injunction might be issued restraining defendant l from functioning as the Chairman of the Town Area and also restraining defendants 2 to 4 from allowing defendant l to perform his duties as Chairman. Rupees 200 as damages were also claimed from defendants 1 to 2. The antecedent facts necessary for a proper appreciation of the points in issue in this case were these:

2. Roshan Bux, the plaintiff was the Chairman of the Town Area of Nawabganj from 1st June 1939 to April 1940 when fresh elections were to take place. Nomination paper for the election of the Chairman was filed by the plaintiff on 20th April 1940. Abdul Aziz, defendant 1, also filed his nomination paper for election as Chairman. Mr. Gobardhan Das, the Tahsildar of Nawabganj, was the Returning Officer in connexion with this election. On 23rd April 1940 the nomination paper of the plaintiff was rejected by the Returning Officer. On 28th April 1940 Abdul Aziz, defendant 1, the only other candidate duly nominated for election to the Chairmanship-was declared elected as the new Chairman. Thereupon, the plaintiff instituted this suit impleading Abdul Aziz as defendant 1, Mr. Gobardhan Das, the Tahsildar, in his capacity as the Returning Officer as defendant 2, the United Provinces Government as defendant 8 and the Town Area, Nawabganj, as defendant 4, and prayed for the reliefs mentioned above. The plaintiff's case in substance was that the Returning Officer had a grudge against him and that the plaintiffs nomination paper was perfectly valid but it was rejected by the Returning Officer without any reason and the order of the Returning Officer was capricious, arbitrary and malicious. The suit was contested by all the defendants on various grounds, but the only pleas set up in defence which are material for the purposes of this appeal were these : that there was no cause of action for this suit, that the order rejecting the nomination paper was passed under Section 7, Town Areas Act, and was perfectly valid, that the suit was barred by Rule 11, Town Areas Election Rules, and that defendant 2 was not actuated by malice or any other improper motive in rejecting the nomination paper of the plaintiff.

3. The Court of first instance found: (1) that the order of rejection of the nomination paper was justified by the provisions of Section 7, Town Areas Act, and it was not malicious or illegal, (2) that the order of rejection of the nomination paper was final by reason of Rule 11, Town Areas Election Rules, and it could not be challenged in the civil Court except on the ground that it was ultra vires or passed without jurisdiction or passed in contravention of the judicial procedure. In view of the above findings, it was held that the plaintiff had no cause of action for the suit and it was accordingly dismissed with costs.

4. On appeal, the learned District Judge substantially affirmed the findings of the Court of first instance and dismissed the appeal with costs. It has been contended before us by the learned Counsel for the appellant that the Courts below were entirely in error in holding that the jurisdiction of the civil Court was barred by reason of Rule 11, Town Areas Election Rules, It has further been contended that none of the disqualifications mentioned in Section 7 Sub-clause (2), Town Areas Act (1914), had been established in this case and consequently the returning officer had acted beyond his powers in rejecting the plaintiff's nomination paper. In order to appreciate the point concerning the jurisdiction of the civil Court it is necessary to consider the provisions of Rule 11, Town Areas Election Rules. Rule 11 runs thus:

The returning officer shall examine the nomination papers received by him by the date fixed by him under Rule 9 and before the date fixed for the election shall publish in the manner prescribed in Rule 9 (a) a list of such candidates for the Chairmanship and (b) a list of such candidates for the membership as he shall consider to have been duly nominated in accordance with Rule 10. The entries in this list shall not be called in question in any proceeding.

It is strongly contended that the jurisdiction of the civil Court is not absolutely barred by the concluding provisions of this rule. Our attention has been drawn to the Full Bench decision of this Court, Brij Behari Lal v. Emperor : AIR1943All123 . This was a case relating to the Municipalities Act where a notice under Section 186, Municipalities Act, had been issued to a person who was not the owner or occupier of the land over which certain constructions had been erected, which were sought to be demolished. On his failure to demolish the constructions, the person served with the notice was prosecuted for an offence under Section 307, Municipalities Act. On the strength of the provisions of Section 321, Municipalities Act, it was contended in that case that the criminal Court trying the case under Section 307, Municipalities Act, was debarred from going into the question of the legality of the notice under Section 186. This contention was repelled by the Full Bench which in effect laid down that it is open to a person who is being prosecuted under Section 307 of the Act to impeach the validity of a notice, or direction, under Section 186 upon any ground which may be strictly referable to the terms and requirements of Section 186 of the Act, but not otherwise. Section 321 in effect provided that the order or direction - and notice under Section 186 is one such direction-referred to in Section 318 shall not be questioned in any manner other than that provided in Section 318 and that the order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final. This provision, it is contended, is very similar to the provisions of Rule 11, Town Areas Election Rules, which in effect make the order of rejection of the nomination paper final. Again our attention has been drawn to the decision of their Lordships of the Privy Council in Secy. of State v. Mask &Co; . That was a case relating to the Sea Customs Act of 1878, Section 188 of which provided:

Every order passed in appeal under this section shall, subject to the power of revision conferred by Section 191, be final.

In this case their Lordships had to consider whether an order passed by the Collector of Customs which dismissed an appeal under Section 188 from a decision of the Assistant Collector of customs as to the rate of duty applicable to particular goods could be challenged in the civil Court by means of a suit. Their Lordships then proceeded to lay down the law thus:

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

5. The Federal Court in Basanta Chandra Ghosh v. Emperor has also laid down the law to the same effect. That was a case where the Court had to consider the effect of Section 10 of the Restriction and Detention Ordinance 3 of 1944. Section 10 (1) provided:

No order made under this Ordinance, and no order having effect by virtue of Section 6 as if it had been made under this Ordinance, shall be called in question in any Court, and no Court shall have power to make any order under Section 491, Criminal P.C. in respect of any order made under or having effect under this Ordinance or in respect of any person the subject of such an order.

6. Their Lordships held:

The Court is and will be still at liberty to investigate whether an order purporting to have been ' made under Rule 26 and now deemed to be made under Ordinance 3 or a new order purporting to be made under Ordinance 3 was in fact validly made, in exactly the same way as immediately before the promulgation of the Ordinance. If on consideration the Court comes to the conclusion that it was not validly made on any of the grounds indicated in any of the long line of decisions in England and this country on the subject, other than the ground that Rule 26 was ultra vires, Section 10 of Ordinance 3 will no more prevent it from so finding than Section 16, Defence, of India Act, did. Such an invalid order, though purporting to be an order, will not in fact be an 'order made under this Ordinance' or having effect by virtue of Section 6 as if made under this Ordinance at all for the purposes of Section 10.

Our attention has been drawn to the decision of two learned Judges of this Court in Joti Prasad v. Amba Prasad : AIR1933All358 which related to the question whether a civil Court had jurisdiction to try a suit challenging the validity of the election of a Chairman of a District Board held under the provisions of the District Boards Act (10 of 1922). The learned Judges in that case had to consider the provisions of Section 35, Sub-clause (3), now 35C, District Boards Act, which in effect provided:

No suit or application challenging the election of a Chairman of a Board shall lie in any civil or any other Court.

In view of the decisions of the Full Bench, the Privy Council and the Federal Court mentioned above it is not at all necessary to consider the effect of the decision of the Division Bench in Joti Prasad v. Amba Prasad : AIR1933All358 . It is therefore clear that the civil Court in spite of the provisions of Rule 11, of the Election Rules which purport to give finality to the order of rejection of the nomination paper and the preparation of the list has to consider whether the Returning Officer had complied with the provisions of Section 7 (2), Town Areas Act, in this case. It is, therefore, necessary to consider whether any of the disqualifications mentioned in Section 7 sub Clause (2) of the Act have been alleged, and found by the returning officer. It may be mentioned here that the allegations against the appellant referred to the disqualifications mentioned under heads (a) and (c) of Sub-section (2) of Section 7, that is to say, that he was a dismissed patwari and that he held a place of profit in the gift or disposal of the Town Area Committee. On the materials on the record before them the Courts below have held, firstly that there was no malice on the part of the Returning Officer and secondly that the two disqualifications of the appellant referred to above were both established against him. It is true that the lower appellate Court has expressed its finding on the latter point in a rather hesitant and involved manner. I have, however, considered the materials in support of the allegations in respect of each of the disqualifications under heads (a) and (c) and I feel fully satisfied that, in any event, the appellant is proved to have held on the relevant date a place of profit in the gift or disposal of the Committee. The evidence of his being disqualified under head (a) on the ground that he was a dismissed patwari is not very clear and in the absence of a categorical finding by the lower appellate Court on this point it must be held that that allegation was not established against the appellant. In any view of the matter, however, there can be no doubt that the disqualification under head (c) of Sub-clause (2) of Section 7 was present in this case. The Returning Officer, therefore, on these materials before him was fully justified in coming to the conclusion that the applicant was disqualified and his nomination for election as a Chairman was accordingly not valid. It is thus abundantly clear that the order of rejection of the nomination paper passed by him under Rule 11, Election Rules, was in full compliance with the provisions of Section 7, Sub-clause (2), Town Areas Act. In view of the above, in my judgment, there is no force in this appeal which is accordingly dismissed with costs.

Sinha, J.

7. I agree with my learned brother that this appeal should be dismissed. I do not feel sure that the decision in Joti Prasad v. Amba Prasad : AIR1933All358 has ceased to be good law. A proceeding under the Town Areas Act must differ from a proceeding either under the U.P. Municipalities Act or the District Boards Act. The Legislature provides a more elaborate procedure in the case of the latter two Acts. The Town Areas Act is an Act, the scope of which is comparatively restricted and is an Act of summary procedure. It may be that it is for this reason that the Legislature did not provide any appeal against the order of the Returning Officer. I do not, however, propose to dwell at length on this aspect or express any definite opinion, but I do feel that the present is not a case in which the plaintiff is entitled to the declaration prayed.

8. The appeal is dismissed with costs.


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