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Gurcharan Das Vs. Har Sarup - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.191
AppellantGurcharan Das
RespondentHar Sarup
Excerpt:
u.p. municipalities act (i of 1900), section 187, rule 42(1) - previous publication of rules--suit for declaration that a municipal election is invalid--competent court, meaning of--civil courts, jurisdiction of. - .....to a competent court, the publication, therefore, was a valid publication of the rules, and the rules published in the official gazette of these provinces on the 30th of july 1910, no doubt, have the force of law.2. the second question is as to which court is a competent court within the meaning of rule 42 published on the 30th of july 1910. we have no doubt that the expression 'competent court' within the meaning of that rule means a civil court of competent jurisdiction with reference to the valuation given by the petitioner in his petition.3. the question of the validity of the election is purely a civil question and the words 'district magistrate' have been intentionally re-placed by the words 'competent court.'4. the result is that we dismiss the appeal with costs, which in this.....
Judgment:

1. This was a suit instituted in the Court of a Munsif for a declaration that a certain Municipal election was invalid. The learned Munsif decided that he had no jurisdiction to entertain the suit. There was an appeal to the learned Additional District Judge of Meerut who came to the conclusion that the Munsif had jurisdiction to try the suit and remanded the case to his Court for trial on the merits. An appeal is preferred to this Court from the order of remand, and the contention of the learned Counsel for the appellant is that under Section 187 of the Municipalities Act I of 1900, a previous publication of the rules finally made by the Local Government is a condition precedent to the validity of such rules. His contention is that the draft of these rules was published in the Local Gazette of these Provinces on the 27th of February 1909, and that in that draft. Rule No. 39 ran as follows: 'The validity of an election may be questioned by a petition to the District Magistrate on the ground, etc.,' that when that rule was published in the official Gazette of these Provinces on July the 30th, 1910, it assumed the following form: 'Rule 42 Clause (1): The validity of an election made in accordance with these rules, shall not be questioned except by a petition presented to a competent Court within 15 days after the date on which the election was held by a person or persons enrolled etc.,' and that as there was no second publication of the amended rules wherein the expression District Magistrate' was re-placed by the expression 'competent Court', the rules as published on July the 30th, 1910, are not validly published rules. The term previous publication has been defined in the General Clauses Act (Local) I of 1904, Section 23. The last clause of that section is in the following terms: 'The publication in the Gazette of a rule or bye-law purporting to have been made in the exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.' This section defines what is meant by 'previous publication.' In the case before us, the draft rules were published in the Official Local Gazette of 27th February 1909 and notice was given to the public that the rules would be taken into consideration by the Local Government on or after the 15th of May 1909, and in pursuance of that notice, after considering all criticisms, the rules, as already mentioned, were published in the Official Gazette of these Provinces on the 30th of July 1910, which gave the power of hearing the petitions questioning the validity of an election to a competent Court, The publication, therefore, was a valid publication of the rules, and the rules published in the Official Gazette of these Provinces on the 30th of July 1910, no doubt, have the force of law.

2. The second question is as to which Court is a competent Court within the meaning of Rule 42 published on the 30th of July 1910. We have no doubt that the expression 'competent Court' within the meaning of that rule means a Civil Court of competent jurisdiction with reference to the valuation given by the petitioner in his petition.

3. The question of the validity of the election is purely a civil question and the words 'District Magistrate' have been intentionally re-placed by the words 'competent Court.'

4. The result is that we dismiss the appeal with costs, which in this Court will include fees on the higher scale.


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