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Rao Masoom Ali Khan Vs. Rao Ali Ahmad Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in147Ind.Cas.148
AppellantRao Masoom Ali Khan
RespondentRao Ali Ahmad Khan
Cases ReferredIn H.D. Chatterjee v. L.B. Tribedi
Excerpt:
u.p. district boards act (x of 1922) sections 18 to 23 - dismissal of election petition by district judge-- revision, if lies to high court--civil procedure code (act v of 1908), section 115--government of india act, 1915, (5 & 6 geo. v, c. 61), section 107--power of superintendence--special tribunal--interference with the decisions of--legality of. - - kunzru, the learned counsel for the applicant, has argued his petition very well indeed and has laid all relevant decided cases before us. to use a well known phrase, he has to preside over the election court as a persona designate, and not as a court. this may well have been held to indicate that the district judge when making the inquiry was not a civil court himself. section 42 laid down that local legislatures could make laws.....mukerji, j.1. this is a revision purporting to have been filed under section 115 of the civil procedure code and section 107 of the government of india act. it arises out of an election petition filed by the applicant, mr. ghulam nizam uddin, against the opposite party, mr. akhtar husain khan. the respondent was elected a member of the district board of agra and his election was challenged by the applicant. the respondent produced before the district judge, who heard the election petition, a document, said to have been signed by the applicant, by which it was alleged, he said that he had agreed for a consideration of rs. 50 which he had already received, to withdraw the case, as he, the applicant was aware of the weakness of his case. the district judge inquired into the allegation of.....
Judgment:

Mukerji, J.

1. This is a revision purporting to have been filed under Section 115 of the Civil Procedure Code and Section 107 of the Government of India Act. It arises out of an election petition filed by the applicant, Mr. Ghulam Nizam Uddin, against the opposite party, Mr. Akhtar Husain Khan. The respondent was elected a member of the District Board of Agra and his election was challenged by the applicant. The Respondent produced before the District Judge, who heard the election petition, a document, said to have been signed by the applicant, by which it was alleged, he said that he had agreed for a consideration of Rs. 50 which he had already received, to withdraw the case, as he, the applicant was aware of the weakness of his case. The District Judge inquired into the allegation of this adjustment of the election petition before him, and having come to the conclusion that the matter in dispute had been adjusted as alleged, he dismissed the petition.

2. In this Court the applicant has challenged the validity of the order on several grounds. One of these is that the District Judge should not have recorded the compromise and should have inquired into the merits of the application irrespective of the compromise. As Section 19(e) of the District Boards Act (Local Act No. X of 1922) lays down that neither an appeal nor a revision shall lie against the decision of the election court, the applicant took the point, as one of the grounds of his revision, that this provision of the law was ultra vires of the U. P. Legislative Council.

3. On behalf of the respondent a preliminary objection has been taken that no revision is maintainable, and, therefore, we have to consider, to start with, this preliminary objection in anticipation of which the applicant's Counsel took the point that Section 19 (e) of the District Boards Act, 1922, was ultra vires of the Local Legislature.

4. Mr. Kunzru, the learned Counsel for the applicant, has argued his petition very well indeed and has laid all relevant decided cases before us. His argument briefly amounts to this.

5. The District Judge authorised by Section 18 of the District Boards Act, 1922, to hear an election petition is a Civil Court. His decision is the decision of a Civil Court. The Allahabad High Court by virtue of Clause 11 of its Letters Patent, is a Court of Appeal for all Civil Courts within its jurisdiction. By Section 107 of the Government of India Act 1919, the High Court has been granted superintendence over all courts subject to its appellate jurisdiction, and, therefore, over the court of the District Judge of Agra. It may be open to the Local Legislature to modify, by passing the District Boards Act, 1922, the Civil Procedure Code, so far as it allows a right of appeal or a right of revision against the order of a District Judge, but by Section 80-A, Sub-section (4) of the Government of India Act, the Local Legislature has no power to make any law affecting any Act of Parliament, and, therefore, it has no power to interfere with the superintendence granted by the Government of India Act, to the High Court, over all courts within its appellate jurisdiction.

6. To find out if this chain of arguments is sound, we have to see, as a first step, whether the election court as constituted by the District Boards Act, 1922, is a Civil Court. Mr. Kunzru has relied on several cases for the proposition that the District Judge acting under Section 18 of the District Boards Act is a Civil Court. But we have to arrive at the right conclusion, primarily by reading the District Boards Act itself. The cases cited deal with other provisions of law and not with the District Boards Act of 1922. For as observed in one of the cases cited by Mr. Kunzru himself, namely, Ramaswami Goundan v. Muthu Velappa Goundan 71 Ind. Cas. 1039 : 46 M. 536 at p. 547 : 16 L.W. 848 : 44 M.L.J. 1 : (1923) M.W.N. 133 : A.I.R. 1923 Mad. 192, the Act itself may give an indication that the Judge who has to preside over an election court was not meant to be a Civil Court.

7. Section 15 of the District Boards Act provides that the election of any person as a member of a board may be questioned by an election petition. Section 18 says that:

An election petition shall be heard by the District Judge within whose jurisdiction the constituency concerned is situated...and at a place in the district within which such constituency is situated

8. Section 18 further provides that it is open to provide by framing a rule in this behalf that the election petition shall be heard by 'some other person or tribunal.' This rule has to be framed by the Local Government; see Section 3, Clause (9) and Section 172 of the District Boards Act. Section 18 in using the words 'other person or tribunal' does not give a clear indication as to whether the District Judge is a 'person' or 'tribunal' Reading it as a whole, Section 18 indicates that it will be open to the Local Government to appoint any person other than the District Judge or any tribunal other than the District Judge to hear an election petition.

9. Section 19 provides that the Code of Civil Procedure shall be followed as far as it is not inconsistent with the District Boards Act or any rule (evidently to be framed by the Local Government), subject to certain provisions mentioned in the section. One of these provisions, as already stated, is that there shall be no appeal either on a question of law or fact, and there shall be no application in revision, against or in respect of the decision of the court. The District Judge or 'some other person or tribunal' appointed by a rule framed by the Local Government is described here as a court. On account of the application of Civil Procedure Code, an appeal would lie from the order of the District Judge to the High Court and a revision would also be maintainable if the order of the District Judge be final. Evidently it is the intention of the Legislature that so much of the Civil Procedure Code as allowed an appeal or a revision will not apply to an election court. Section 20 of the District Boards Act describes the officer hearing an election petition as an election court and provides that:

The election court shall have the same powers and privileges as a Judge of a Civil Court, and may, for the purposes of serving any notice or issuing any process or doing any other such thing, be entitled to employ, with the consent of the District Magistrate, any peon or other officer or clerk attached to the Court of the District Magistrate.

10. This provision in Sub-section (1)...to Section 20, in my opinion, gives a clear indication of the mind of the Legislature. It matters little who presides over an election court, but the person who presides will have the, powers and privileges of a Judge of a Civil Court. This means that he is not to be a Civil Court but will have the powers and privileges of a Civil Court, though not the status. In this view the District Judge has only the powers and privileges of a Judge of a Civil Court, but otherwise he is not a Civil Court. The District Judge as the principal court of original civil jurisdiction and as a court having several other courts under his administrative control would be fully in a position to serve his orders and notices by means of the agencies under his control; but for the purposes of hearing an election petition he is to utilise the peons or other officers and clerks attached to the court of the District Magistrate. This, in my opinion, is a clear indication that, though the services of a District Judge is to be utilised for the purposes of hearing an election petition, his peons and Subordinate Officers and clerks re not to be utilised. To use a well known phrase, he has to preside over the election court as a persona designate, and not as a court. The Sub-section (2) to Section 20 makes the matter further clear. A District Judge's decree or order is executable either by himself or by any court subordinate to him if he sends the decree or order for execution to such courts, yet we find that the costs awarded by an election court or a security bond given for costs are to be realized and enforced not by the District Judge's Court or any court subordinate to him, but by the Collector of the District and in a manner which is inconsistent with the manner of execution of a Civil Court decree or order, namely, as if it were an order passed by the Collector in proceedings under the Agra Tenancy Act, or the Oudh Rent Act.

11. A close scrutiny of the provisions of the District Boards Act itself leads me to the conclusion that it was never the intention of the Local Legislature that the District Judge's Court was to be the election court, though the services of a District Judge; were intended to be utilised. In this view, the District Judge hearing an election petition is not a Civil Court, and, therefore, the first chain in the argument of Mr. Kunzru fails.

12. Now I shall proceed to examine the cases-cited by Mr. Kunzru in order to see whether there is anything in them which would support the view put forward on behalf, of the applicant that the District Judge bearing an election petition under the District Boards Act, 1922 is a Civil Court.

13. The first case to be noticed is naturally a Privy Council case cited by Mr. Kunzru. It is Balakrishna Udayar v. Vasudeva Aiyar 40 Ind. Cas. 650 : 40 M. 793 : 15 A.L.J. 645 : 2 P.L.W. 101 : 33 M.L.J. 69 : 26 C.L.J. 143 : 19 Bom. L.R. 715 : (1917) M.W.N. 628 : 6 L.W. 501 : 22 C.W.N. 50 : 11 Bur. L.T. 48 : 44 I.A. 261 (P.C.). This case arose under Section 10 of the Religious Endowments Act (XX of 1863), and one of the questions for decision was whether the word 'court' in Section 20 meant the District Judge himself personally (as persona designata) or his court. If the function imposed on the District Judge was to be done by him as a persona designata, no revision lay to the High Court and no further appeal lay to the Privy Council. Their Lordships held that the word 'Court' meant court and not the presiding officer. This case is not of any assistance to Mr. Kunzru, because the word 'court' is defined in the Act itself as the principal Court of Original Civil Jurisdiction. Strictly speaking, no question of the presiding officer being a persona designata could have been seriously urged in the case. In the case before me it is the 'District Judge' who is mentioned and not his 'court.' The Privy Council held that 'court' meant court and not the officer personally, and I am holding that the expression 'District Judge' means the 'District Judge' and not his 'court.'

14. The next case to be considered is the Madras case already mentioned, namely, Ramaswami Goundan v. Muthu Velappa Goundan 71 Ind. Cas. 1039 : 46 M. 536 at p. 547 : 16 L.W. 848 : 44 M.L.J. 1 : (1923) M.W.N. 133 : A.I.R. 1923 Mad. 192, This was a decision given under Madras Local Boards Acts and the rules framed there under, and the question to be decided was whether the District Judge, who was to hear the petition, was a persona designata or a court. Considering the language of the Act and the rules, the decision arrived at was that 'District Judge' was a court and not a persona designata. The decision that was arrived at must be taken to be based on the language before the Hon'ble Madras Court and cannot be applied to the case before us. The right of hearing the election petition was given to the District Judge, but no indication was given as to the procedure to be followed. It was accordingly pointed out that the procedure would be the procedure to be followed by him as a court. One of the learned Judges (Krishnan, J), distinguished a Bombay case on the ground that it was decided on the language of the Act which the Bombay Court had to construe. The learned Judge remarks: 'The Bombay Act provides that for purposes of the inquiry the District Judge may exercise any of the powers of a Civil Court. This may well have been held to indicate that the District Judge when making the inquiry was not a Civil Court himself. Each case has to be judged on its own language and I am unable to treat the Bombay case which deals with a different Act as an authority for the present case.'

15. This observation of the learned Judge affords as a complete answer to Mr. Kunzru's argument that we ought to follow the madras case. We have not got before us the full text of the law and rules on which the Madras Court proceeded, and, therefore, I do not feel bound to treat this case as an authority on the question raised before us.

16. The next case is that of Palanisami Pillai v. R. Srinivasarangachariar 80 Ind. Cas. 322 : 47 M.L.J. 795 : A.I.R. 1925 Mad. 160 : 20 L.W. 851 : (1925) M.W.N. 283.This case contains no discussion of the point before us, and, therefore, need not be considered.

17. In the case of In re Nanchand Shivchand 18 Ind. Cas. 408 : 37 B. 365 : 14 Cr. L.J. 72 : 15 Bom. L.R. 75. the question for decision before the Bombay court was whether the District judge acting as the election court was a court within the meaning of the criminal procedure code, and whether, therefore any prosecution of persons, who appeared before the judge and produced documents, could be prosecuted without the sanction of the Judge under Section 195 of the Criminal Procedure Code. It was held that the District Judge was a ' court' though for purposes of a civil revision he might not be a court. This ruling is of little use on the question before us for we want to know whether the District Judge is or is not a 'Civil Court' within the meaning of Clause 11 of the Letters Patent of the Allahabad High Court The cases considered by the Bombay Court would indicate that in Bombay a District Judge exercising function as an election court under the Municipalities Act is not treated as a Civil Court, and no revision is allowed against his orders under the Civil Procedure Code.

18. The next case that I feel inclined to consider is the case of H.D. Chatterjee v. L.B. Tribedi 68 Ind. Cas. 274 : 49 C. 528 : A.I.R. 1922 Cal. 427 : 26 C.W.N. 78. There the question was whether an order passed by a 'Rent Controller' was passed by him as a Civil Court and whether, therefore, the High Court could revise his orders under Section 107 of the Government of India Act. It was held that he was. The reasons for the decision will be found at p. 534 Page of 49 C.--[Ed.] of the report and do not throw much light on the language of the Act which I have to construe. The reason given for the decision was that Rule 24 of the rules framed by the Local Government and Section 23 of the Calcutta Rent Act (by which the Rent Controller's office was created) laid down that in all proceedings before them the Controller and the President of the tribunal should have all the powers possessed by a Civil Court for trial of suits with this modification that only the substance of the evidence need be recorded. On this provision and on this provision alone it was held that the Rent Controller was a court of civil jurisdiction. I am afraid this case does not throw much light on the point before us.

19. Against Mr. Kunzru's contention, the Full Bench decision of this Court in Abdur Rahman v. Abdul Rahman : AIR1925All380 , was cited. The questions to be decided there were not whether the election court under the Municipalities Act (the Commissioner) was a Civil Court but two other questions stated at Page 526 of the Report. The points argued were that the United Provinces Local Legislature could not appoint any court or tribunal or the Commissioner for trying election cases and that the Local Government could not take away the right of appeal or revision to and by this Court against the decision of the Commissioner. At Page 529 no doubt the following observations occur:

It may be added that the appellant's argument breaks down at the outset, unless the term 'Civil Courts' used in the Letters Patent can be held to include such a court as that created by Section 22 of the United Provinces Municipalities Act. It is not strictly necessary to decide the point but in the opinion of the majority of us these words were never intended to cover a tribunal created under a particular statute and for a particular purpose.

20. I do not consider that this observation can be treated as any decision at all on the point before us, and if I were inclined to accept Mr. Kunzru's arguments this observation would not have stood in my way. I may, however, point out that the language of the Municipalities Act U.P. so far as the creation of an election tribunal goes, is very similar to the language of the District Boards Act of 1922. There is, however, an important difference inasmuch as under the Municipalities Act the Commissioner was created the election tribunal, while under the District Boards Act it is the District Judge. In the case of a Commissioner it will be difficult to argue that his Court was a court of civil jurisdiction but in the case of a District Judge the use of the very name would lend some support to the view that his Court was a Civil Court.

21. I hold that the election Court whose decision is being sought to be impeached by the applicant is not a Civil Court, and therefore, it is not under the superintendence of the High Court under Section 107 of the Government of India Act. In view of this decision, it is not necessary to consider the other links in the chain of Mr. Kunzru's arguments.

22. I would dismiss the revision as incompetent and with costs.

Bennet, J.

23. This is an application for revision of an order dismissing an election petition brought under Section 15 of the United Provinces District Boards Act, 1922. A preliminary objection is taken that no revision lies. Section 19 (2) (e) of that Act states:

There shall be no appeal either on a question of Jaw or fact, and no application in revision against or in respect of the decision of the court.

24. The reply in ground No. 6 of the memorandum of appeal is:

That Section 19(e) is ultra vires of the U.P. Legislative Council.

25. The first matter is to examine the powers of the U.P. Legislative Council. Under the Government of India Act, 1833, legislation was vested in the Governor-General of India in Council. This system of legislating from a central source, exclusively continued in force until the passing of the Indian Councils Act, 1861, which established Local Legislatures for the provinces of Madras and Bombay, and gave power to the Governor-General in Council to extend the provisions of the Act to Bengal and to establish similar Local Legislatures in other provinces. A Local Legislature was first established in the North-West Provinces under this Act. Section 42 laid down that Local Legislatures could make Laws and Regulations for the Peace and good Government of such Presidency, and for that purpose to repeal and amend any Laws and Regulations made prior to the coming into operation of this Act by any Authority in India, so far as they affect such Presidency provided always, that such Governor in Council shall not have the power of making any Laws or Regulations which shall in any way affect any of the provisions of this Act, or of any other Act of Parliament in force, or hereafter to be in force in such Presidency.

26. Section 48 extended these provisions to future Councils of Lieutenant Governors. Section 43 contained a list of subjects on which the Local Legislature might only legislate with previous sanction of the Governor-General.

27. We now come to the Government of India Act of 1915. The powers of Local Legislatures are given in Section 79. There is the power to make laws for the peace and good Government, the need for previous sanction for laws altering any law made by another authority in India or for laws dealing with certain subjects and Sub-section (4) which provides:

The Local Legislature of any Province has not power...to make any law affecting any Act of Parliament.

28. This Act provided in Section 106 for the powers and jurisdiction of High Courts. In 107 it is provided:

Each of the High Courts has superintendence over all the courts for the time being subject to its appellate jurisdiction.

29. and may call for returns, transfer suits or appeals, make rules, prescribe forms and fees. Section 108 empowers High Courts to make rules for Bench and single Judge jurisdiction. Section 109 empowers the Governor General in Council to alter local limits of jurisdiction of High Courts. Section 110 exempts the Governor General and Governors and their Executive Councilors from the jurisdiction of High Courts. Section 111 refers to justification by written orders of the Governor-General. Section 112 provides the law to be administered by High Courts of original jurisdiction.

30. Section 131 (3) provides:

Nothing in this Act shall affect the power of the Governor-General in Legislative Council to repeal or alter any of the provisions mentioned in the Fifth Schedule to this Act, or the validity of any previous exercise of this power.

31. In the Fifth Schedule are mentioned:

Section 108--Jurisdiction, powers and authority of High Courts: 108 (1) exercise, of jurisdiction of High Court by single Judges or Division Courts.

32. Also Sections 109, 110, 111 and 112. It is to be noted that Section 107 is omitted from the Fifth Schedule. The argument has been advanced that the omission is made because it was intended that the Governor-General in Council should not have power to affect the revisional jurisdiction of the High Courts. This argument appears incorrect. There is no reason why such an exception should be made. It appears that Section 107 is omitted because it refers to 'all courts for the time being subject to its appellate jurisdiction' and the appellate jurisdiction is provided for in Section 106. A measure affecting the appellate jurisdiction in Section 106 will affect the power of superintendence in Section 107, and thus there was no need to include Section 107 in the Fifth Schedule. A reference to the Act for establishing High Courts, 1861, shows that Section 107 corresponds with only verbal changes to Section 15 of the Act of 1861. Section 106 corresponds to Section 9, Jurisdiction and Powers of High Courts. Section 9 states that the powers of the High Courts are 'subject and without prejudice to the Legislative Powers in relation to the matters aforesaid of the Governor General of India in Council.' The system therefore was continued by the Government of India Act of 1915 that legislation affecting the jurisdiction and powers of the High Courts was to be made by the Governor General in Legislative Council, and there was no provision for such legislation by the Local Legislatures. The provisions of the Government of India Act of 1915 have been set out, because it was under that Act that the U.P. Legislative Council passed the U.P. Municipalities Act II of 1916, which contains in Sections 19 to 27 provisions for an election tribunal which are almost the same as the provisions in the U.P. District Boards Act, 1922, Sections 16 to 23. The validity of these provisions in the Municipal Act of 1916 has been considered by a Full Bench of this High Court in Abdur Rahman v. Abdur Rahman : AIR1925All380 , and it was held that the Local Legislature had power to pass this Act. On Page 526 the second point set out shows that revisional jurisdiction was also considered. This ruling will be discussed in more detail later, but at present it is cited to show that it referred to the Government of India Act of 1915, where the powers of the Local Legislature were not so extensive as at present. These powers have been extended by the Government of India Act of 1919. That Act is a consolidating Act and it omits Section 79 but its provisions are found in Section 80-A with some additions. The prohibition against making any law affecting an Act of Parliament remains and Section 81 has added to it a paragraph stating:

A law made by any authority in British India and repugnant to any provision of this or any other Act of Parliament shall, to the extent of that repugnancy, but not otherwise, be void.

33. A new section is added, 45-A, which states:

(1) Provision may be made by rules under this Act :

(a) for the classification of subjects, in relation to the functions of Government, as central and provincial subjects, for the purpose of distinguishing the functions of Local Governments and Local Legislatures from the functions of the Governor General in Council and the Indian Legislature.

(4) The expressions 'central subjects' and 'provincial subjects' as used in this Act mean subjects so classified under the rules.

34. In Section 129-A(1) the rules are to be made by the Governor-General in Council, with the sanction of the Secretary of State, and shall not be subject to alteration by the Legislatures in India. Under (3) the rules are to be laid before each House of Parliament for sanction.

35. Under Section 45-A the Devolution Rules were published on December 16, 1920. Schedule I Part I--Central subjects contains:

16 Civil Law, including laws regarding status, property, Civil rights and liabilities, and Civil Procedure.

30. Criminal Law, including Criminal Procedure.

41. Legislation in regard to any provincial subject, in so far as such subject is in Part II of this Schedule stated to be subject to legislation by the Indian Legislature, and any powers relating to such subject reserved by legislation to the Governor General in Council.

36. Schedule I Part II-Provincial subjects contains:

1. Local Self-Government, that is to say, matters relating to the constitution and powers of Municipal Corporations, Improvement trusts, District Boards subject to legislation by the Indian Legislature as regards--

(a) The powers of such authorities to borrow otherwise than from a Provincial Government, and,

(b) The levying by such authorities of taxation not included in Schedule II to the Schedule Taxes Rules.

37. There is no provision for the constitution and powers of election tribunals to be subject to legislation by the Indian Legislature. Nor is there any exclusion of such a subject though an exclusion is specified on another matter ('exclusive of matters arising under the Cantonments Act, 1910).'

17. Administration of justice, including constitution, powers, maintenance and organisation of Courts of Civil and Criminal Jurisdiction within the province; subject to legislation by the Indian Legislature as regards High Courts, Chief Courts, and Courts of Judicial Commissioners, and any Courts of Criminal Jurisdiction.

38. What is the meaning of the expression 'subject to legislation by the Indian Legislature'. It does not mean that such subjects are excluded from legislation by the Local Legislature. The exclusion of subjects is provided for by the use of the word 'excluded'. For example in Part II--Provincial Subjects it is provided in Rule 5 :

5. Education: provided that--

(a) The following subjects shall be excluded, namely:

(1) The Benares Hindu University, etc.

39. The meaning of the expression is given in Rule 41 of Part I quoted and that rule makes it possible for the Indian Legislature to legislate on a provincial subject where these words are used. It does not take away the power of the Local Legislature to legislate on the same subject. The result is that both Legislatures have a concurrent power of legislation on such subjects. To keep the legislation in harmony the t provision is made in Section 80-A as follows :

(3) The Local Legislature of any province may not, without the previous sanction of the Governor-General, make or take into consideration any law:

(f) Regulating any provincial subject which has been declared by rules under this Act to be either in whole or in part, subject to legislation by the Indian Legislature in respect of any matter to which such declaration applies.

40. The result is that subject to the previous sanction the Local Legislature may legislate on the 'constitution, powers, maintenance and organisation' of the High Court and Chief Court.

41. That the Local Legislature has exercised such powers is shown by the Oudh Courts Act, U.P. Act IV of 1925, which states in the preamble that the Governor-General has given his previous sanction required by Section 80-A Sub-section (3) of the Government of India Act. Section 3 states:

On and from the commencement of this Act there shall be established for Oudh a Chief Court hereinafter referred to as the Chief Court.'

42. The Local Legislature, acting under Rule 17 of the Devolution rules, obtained previous sanction and passed this Act setting up a Chief Court. The rule refers to the High Courts and Chief Courts in precisely the same terms. The appellant's learned Counsel, Mr. Kunzru, in an elaborate address referred to many rulings, and he argued that local Legislatures could not pass laws affecting the powers of High Courts. None of these rulings referred to Rule 17 Part II of the Devolution Rules under which this power has been given in 1920 to Local Legislatures. If the argument of Mr. Kunzru were correct, it would apparently follow that since 1925 the Oudh Chief Court has been functioning without jurisdiction.

43. Mr. Kunzru laid stress in his address on the provisions in the Government of India Act, 1919, for legislation by the Indian Legislature in regard to High Courts, Section 131 (3) and the Fifth Schedule. He argued that as the Act did not provide for legislation on this subject by Local Legislatures, therefore such legislation was repugnant to the Act, and therefore void under Section 84. This argument ignores the rules under the Act. The error arises from the fact that the Government of India Act, 1919, is a consolidating Act as stated in the title:

An act to consolidate enactments relating to the Government of India.

44. In the Government of India Act, of 1915 there was an attempt made to deal in the Act itself with the question of what matters should form the subject of legislation by the central Legislature and local Legislatures respectively. Accordingly for the central legislature there was a list of subjects in Section 65, and the provision of the Fifth Schedule and Section 131(3); for the local legislatures there was a list in Section 79. These provisions have been retained in the Government of India Act, 1919, Section 79 now forming part of Section 80-A. But it was found that a much more elaborate division must be made between the central and local Legislatures than could be effected in the Act itself. Consequently there was added to the Act Section 45-A providing for rules to classify subjects into central and provincial, and corresponding limitations were imposed in Section 67 (2)(i) and (ii) for the central legislature and Section 80-A(e), (f) and (g) for the local Legislatures. It is to these rules that we must look for the subjects on which each legislature may legislate. And there is provision in the rules under which local Legislatures may with previous sanction pass laws affecting the jurisdiction and powers of High Courts. These provisions are not inconsistent with the sections of the Act; they are supplemental to the sections. Section 131(3) does not give the Governor General in Council exclusive power to alter the provisions of the Act in the Fifth Schedule. It does give him this power, but not exclusively. So the provisions in the rules which give the local legislatures similar power in regard to High Courts are not repugnant to Section 131(3). The argument now took a different shape. It was admitted that if local Legislatures could affect laws passed by the Indian legislature then the revisional jurisdiction of the High Court under Section 115, Civil Procedure Code, might be taken away. But it was said that the High Court has revisional jurisdiction under its Letters Patent, and also under Section 107, Government of India Act.

45. As regards the Letters Patent it was argued that Section 11 provided.

that the said High Court of Judicature at Allahabad shall be a Court of Appeal from the Civil Courts of the said territories and from all other courts to which there is now an appeal to the Sudder Dewanny Adawlut.

46. and that Section 35 stated:

And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council, and also of the Governor-General in Council under Section 71 of the Government of India Act, 1915, and also of the Governor General in cases of emergency under Section 72 of that Act and may be in all respects amended and altered thereby.

47. It was argued that as Section 35 does refer to the Government of India Act but does not provide that the Letters Patent are subject to legislation by the local legislatures, therefore the Letters Patent are not so subject. But the Government of India Act to which reference is made is that of 1915, not that of 1919. There has only been one Letters Patent issued after the Government of India Act, 1919, and Devolution Rules of 1920. That is the letters Patent of the High Court at Rangoon, and Section 47 says:

And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the local legislature and of the Indian legislature' etc.

48. It is therefore clearly the intention that the powers and jurisdiction of High Courts should be subject to the legislative powers of the local legislature, and it cannot be intended that there should be an exception only in the case of Rangoon and that other High Courts should not be so subject. The provision for Rangoon is a recognition by the Crown of the effect of the Devolution Rules.

49. Learned Counsel for the applicant relied chiefly on Section 107, Government of India Act. One of his arguments was that this was a section of an Act of Parliament and any law made by any authority in British India repugnant to it would be void to the extent of that repugnancy under Section 84. He argued that the local legislature had no power under the Act to legislate in regard to the High Court, and that the Indian Legislature had no power to legislate in regard to Section 107 because that section is not entered in the Fifth Schedule as a section which the Indian legislature is empowered by the Act to after. Learned Counsel relied strongly on a recent ruling of a Special Bench of the Bombay High Court reported in Emperor v. Balkrishna Hari Phansalkar 141 Ind. Cas. 720 : 34 Bom. L.R. 1523 : A.I.R. 1933 Bom. 1 : (1933) Cr. Cas. 1 : 34 Cr. L.J. 199 : 57 B. 93 : Ind. Rul. (1933) Bom. 130 (S.B.). This was an application for criminal revision against convictions by a Sub-Divisional and Special Magistrate of offence under Section 9 of Ordinance II of 1932. This Ordinance was made by the Governor General under Section 72 of the Government of India Act, which says:

but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian legislature to make laws.

50. Section 51 of the Ordinance stated :

there shall, save as provided by this Ordinance, be no appeal from any order or sentence of a court constituted under this Ordinance, and, save as aforesaid, no court shall have authority to revise such order or sentence etc.

51. On page 1545 Pages of 34 B.--[Ed.]Beaumont C.J., states:

I have no doubt, therefore, that the section does take away the powers of the High Court derived under the Code of Criminal Procedure and under the Letters Patent. But as I have said it was not competent for the Ordinance to take away the powers derived under Section 107, Government of India Act. Now what are the powers? Under Section 107 the High Court has superintendence over all courts for the time being subject to its appellate jurisdiction. It is not disputed that rights of superintendence include not only superintendance on administrative points, but superintendence on the judicial side too, and that under its power of superintendence the High Court can correct any error in a judgment of a court subject to its appellate jurisdiction. It seems to me clear that the Special Courts under the Ordinance are courts subject to the appellate jurisdiction of the High Court, because under Section 39 the High Court has power to hear appeals in certain cases.

52. On Page 1544 Page of 34 B.--[Ed.] he stated:

but the powers conferred on the High Court by Section 107 of the Government of India Act, which is an Act of the Imperial Parliament, cannot be controlled by the Governor-General. That, in my judgment, is the effect of Section 65 of the Act and the Fifth Schedule.

53. Now the learned Chief Justice and his colleagues did not anywhere refer to the powers of legislation given under the Devolution Rules of 1920 to the Indian Legislature. The ruling therefore is no authority on the interpretation of those portions of the rules which have been quoted. Apparently these rules were not brought to the notice of the court and the court proceeded on the assumption that the only powers of legislation were those quoted from Section 65 of the Act and the Fifth Schedule, both of which provisions date from the earlier Government of India Act of 1915, and not from the later Act of 1919 which gave wider powers in accordance with the Montagu-Chelmsford reforms. Presumably the powers of the Governor General to make ordinances under Section 72 were also widened, as the restrictions for those powers are stated in Section 72 to be the same as the restrictions for the Indian Legislature. Owing to this important omission the ruling is not an authority for the doctrine of ultra vires in the present case. But in one respect it is useful as it lays down that Section 107 applies because in the Ordinance the High Court has power to hear appeals in certain cases.

54. This brings up the consideration of the court which heard the election petition in the present case. U.P. District Boards Act, 1922, provides:

18 (1). Tribunal.

An election petition shall be heard by the District Judge within whose jurisdiction the constituency concerned is situated (unless some other person or tribunal has been appointed by rule in this behalf) and at a place in the District within which such constituency is situated.(2) An election petition, and any application relating to the hearing of an election petition, may be presented to such District Judge, or to such, other person or tribunal, or to a Munsif within whose jurisdiction the constituency concerned or any part thereof is situated.

55. Section 19 applies the Civil Procedure Code, in regard to suits except so far as it is inconsistent with the Act, or any rule. Certain provisos follow, including the one excluding appeals and revisions. Section 20 states:

20(1). Powers of election court.

Unless it is otherwise provided by rule made in this behalf, the election court shall have the same powers and privileges as a Judge of a Civil Court, and may, for the purpose of serving any notice or issuing any process or doing any other such thing, be entitled to employ, with the consent of the District Magistrate, any peon or other Officer or clerk attached to the court of the District Magistrate.(2) An order for costs, or an order for the realization of a security bond for costs, passed by the election court, maybe sent by that court for execution to the Collector of the District within which the constituency concerned is situated, and an order so sent shall be executed by the Collector in the same manner as if it were an order passed by the Collector in proceedings under the Agra Tenancy Act, 1901, or the Oudh Rent Act, 1886, as the case may be.

56. To show that the High Court has superintendence over the election court under Section 107, Government of India Act, it must be shown that the election court is a 'court for the time being subject to its appellate jurisdiction'. The petition in the present case was heard by the District Judge as there are no rules for another person or tribunal under Section 18.

57. Learned Counsel argued that the District Judge is a Civil Court under the Bengal, Agra and Assam Civil Courts Act, 1837, having cognizance of all original suits for the time being cognizable by Civil Courts, under Section 18. Section 20(1) states,

Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or Additional Judge shall lie to the High Court.

58. Therefore, he argues that Section 107 would apply.

59. The question is whether the District Judge is acting as a persona designata under Section 18 of the District Boards Act, or whether the election petition is being heard in the Civil Court of the District Judge. If the latter were the case, the Act would contain some provision for the District Judge to use his own peons, Officers and clerks instead of those of the District Magistrate, or to realize costs through the Civil Courts instead of through the Collector. It was argued that these provisions are only inserted in case rules provide for another person or tribunal. But Section 18 contemplates the District Judge as the person to hear the election petition in the absence of such provision, and the omission to provide for the use of the machinery of the District Courts is remarkable.

60. Then there is the provision that the election court shall have the same powers and privileges as a Judge of the Civil Court. If the District Judge were not acting as a persona designata, the provision in Section 20(1) would naturally run:

the election court, when not the court of the District Judge, shall have the same powers and privileges as a Civil Court.

61. The omission of these words shows that the District Judge is merely acting as a persona designata and not as District Judge, and so it is necessary to give him also the powers and privileges of a Civil Court when hearing an election petition. It was argued that these words were merely put in for other persons. But they are also applied by Section 20 to the District Judge.

62. Mr. Kunzru referred to Ramaswami Goundan v. Muthu Velappa Goundan 71 Ind. Cas. 1039 : 46 M. 536 at p. 547 : 16 L.W. 848 : 44 M.L.J. 1 : (1923) M.W.N. 133 : A.I.R. 1923 Mad. 192, where it was held that a District Judge trying an election petition under the Madras Local Boards Act XIV of 1920, was not a persona designata but was acting as the District Court. The wording of the Act was examined and Krishnan, J., on p. 543 Page of 46 M.--[Ed.] points out that:

Rule 4, Clause (3) expressly says that in certain cases the Judge may direct any court subordinate to him to hold the inquiry. A District Judge or Subordinate Judge has no court subordinate to him when acting as a persona designata but only when acting as the District Court or the Subordinate Court.

63. There is no provision in the District Boards Act, 1922, which gives an indication of this nature. Mr. Kunzru did not produce the Madras Municipal Act or Local Boards Act, but from a perusal of numerous Madras rulings cited by him it appears that these Acts contain no provision that the decision of the trying court was to be final and they provide for trial by the ordinary Civil Courts. These decisions have therefore, no bearing on the interpretation of the U.P. District Boards Act, 1922, which has quite different provisions. In another case reported as Deivanayagam Pillai v. Mohideen Rowther 70 Ind. Cas. 780 : AIR 1923 Mad. 169 : 16 L.W. 827 : (1922) M.W.N. 818 : 44 M.L.J. 39, another learned Judge held that the High Court had no power to revise an order of a Subordinate Judge when he was trying an election petition under the Madras Municipalities Act, as he was not a Civil Court. Reference was also made to Bhaishankar Nanabhai v. Municipal Corporation Bombay 31 B. 604 : 9 Bom. L.R. 417. On Page 609 Page of 31 B.--[Ed.]. Sir Lawrence Jenkins stated 'But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive.

64. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary courts, for they never had any; there is no change of the old order of things; a new order is brought into being.

65. Here not only is the Chief Judge appointed the tribunal, but it also is expressly provided that his order shall be conclusive, and that every election not called in question in accordance with the provisions of Section 33 shall be deemed to have been to all intents and purposes a good and valid election.

66. But then it is argued that this is a suit of a civil nature and Section 11 of the Civil Procedure Code, provides that the courts Shall have jurisdiction to try all suits of a civil nature. But from this rule are excepted 'suits of which their cognizance is barred by any enactment.' The jurisdiction of the courts can be excluded, not only by express words, but also by implication, and there certainly is enough in Section 33 of the Municipal Act, for this purpose; for there is no right which the plaintiff can at this stage assert as the subject of this suit, which is not subject to the condition that its essential basis must depend on the decision of the tribunal created for the purpose. The court therefore, held that a suit would not lie on the original side of the Bombay High Court to declare that an election under the Municipal Act was invalid. It is held that although the Chief Judge of the Small Cause Court was to enquire into the validity of an election Under the provisions of the Act, that did not make the suit a civil suit and the Civil Courts had no jurisdiction in regard to the suit. This case is an answer to the argument for applicant that because the District Judge hears the election petition therefore the case must be a civil suit and he must be acting as a Civil Court. Reference was made to Sheonandan Prasad v. Emperor 46 Ind. Cas. 977 : 3 P.L.J. 581 : A.I.R. 1918 Pat. 103 : 19 Cr. L.J. 833 : 5 P.L.W. 324 :(1919) Pat. 1 (F.B.), where it was held that the High Court has no jurisdiction to superintend the proceedings of Commissioners appointed under the Defence of India Act, 1915. This case came under the provisions of the Indian Councils Act, 1861 and the power of superintendence in Section 15 of the Indian High Courts Act of 1861, which section is similar to Section 107 of the present Government of India Act, 1919. The learned Chief Justice said on page 590 Page of 3 P.L.J.--[Ed.]:

It was argued on behalf of the petitioner that the powers of superintendence conferred by Section 15 could not be taken away by an Act of the Indian Legislature, such powers being conferred by an Act passed in the same Session of Parliament a the Indian Councils Act and consequently, by reason of the proviso in Section 22 of that Act, placed beyond the control of the Governor-General in Council. The defence of India Act, however, does not purport to take away any existing powers of superintendence but merely to create a new court which shall be independent of the High Court. The superintendence conferred on the High Courts by Section 15 was confined to superintendence over those courts which are subject to the appellate jurisdiction of the High Court whereas the tribunal over which superintendence is now asked for was by the very Act which created it subject to no appellate jurisdiction whatever.

67. The Allahabad High Court had given one Full Bench ruling on the subject in Abdul Rahman v. Abdul Rahman : AIR1925All380 . There was an election case under the United Provinces Municipalities Act, II of 1916. The provisions of this Act, Sections 19 to 27, are word for word the same as those of the District Boards Act of 1922, Sections 16 to 23, with two exceptions. One difference is that the officer mentioned as the person to try the petition if no other person or tribunal is appointed by rule is the Commissioner of the division, instead of the District Judge. The other difference is that Section 23 (2)(e) allows a reference on a point of law by the court to the High Court, and there is no such provision in the District Boards Act. Learned Counsel argued that the decision in this Full Bench case should not govern the present case because of this difference between the Commissioner and the District Judge. But if election courts were Civil Courts the occupation of the presiding officer who was not presiding in the election court would not make any difference. On the other hand if election courts are not Civil Courts, but are special courts created by statute, then the fact that a presiding officer of a Civil Court is appointed to preside over an election court will not make the election court a Civil Court. The ruling, therefore, does apply to the present case.

68. In the ruling the Commissioner had set aside an election, and the person whose election was set aside filed an appeal in the High Court. He also filed a suit in the court of the Subordinate Judge for a declaration that the proceedings, of the Commissioner were null and void and that the provisions in the Municipalities Act were ultra vires of the local Legislature. On page 526 Page of 47 A--[Ed.] the grounds of appeal were set out:

(1). That it is ultra vires of the United Provinces local Legislature to appoint any court or tribunal for the trial or the exclusive trial of election cases or to appoint the Commissioner as the election tribunal.

(2) That, at any rate, it is ultra vires of the United Provinces local Legislature to take away or restrict in any manner the powers or appeal or revision of this Court and to make the decision of the Commissioner final.

69. On the first point it was held on Page 527 Pages of 47 A--[Ed.], under the Government of India Act of 1915 which applied as the U.P. Municipalities Act was of 1916:

If a wide general power to legislate for the peace and good Government of the province does not include a power to devise, means for deciding on the validity of a disputed election to a seat on a Municipal Board. It is difficult to know what it does include.

70. Again:

The local Legislature has in a number of instances, both under the Indian Councils Act of 1861 and under the Government of India Act, created tribunals for particular purposes or excluded the jurisdiction of the Civil Courts in particular cases. The enactments containing these provisions have repeatedly come before the courts, and it has never hitherto been suggested that there was any doubt as to their validity.

71. On Page 529 Pages of 47 A--[Ed.] it was stated:

It may be added that the appellant's argument breaks down at the outset unless the term 'Civil Courts' used in the Letters Patent can be held to include such a court as that created by Section 22 of the United Provinces Municipalities Act. It is not strictly necessary to decide the point, but in the opinion of the majority of us these words were never intended to cover a tribunal created under a particular statute for a particular purpose. There is equally little foundation for the contention that the Commissioner sitting as an election court is subject to the superintendence of this Court. The power of superintendence rests on Section 107 of the Government of India Act, which extended it to all courts subject to the High Court's appellate law to which appeal can be made as conferring a jurisdiction. There is no other provision of power of superintendence in this case. It is very difficult to argue that the election court is under the appellate jurisdiction of the High Court when the Act which creates it expressly declares that there shall be no appeal from any of its decisions.

72. On Page 532 Page of 47 A--[Ed.] it is stated:

The ordinary rule is that where the statute which creates the right also prescribes a specific remedy, the person aggrieved is limited to the remedy so prescribed.

73. The court found against the appellant on all points, that there was no right of appeal revision, or suit. Since that decision the law against the applicant has become clearer, as the present District Boards Act of 1922 was passed after the Government, of India Act of 1919, and the Devolution Rules of 1930, which state clearly the power of the local Legislature to pass laws affecting the jurisdiction and power of High Courts. In Bhagwat Das v. Chhedi Koeri : AIR1926All398 Rev, it was held that no revision lay from an order of the District Judge sitting as a Revenue Court in a second appeal from the appellate order of the collector. The procedure was under the Agra Tenancy Act II of 1901, in a suit for arrears of rent. On Page 538 it was held:

It is clear that for a long series of years this Court has interpreted Section 167 in a sense which is fatal to the case put forward here by the applicants. It has been held that under the terms of Section 167 the powers of the High Court to interfere in revision have been ousted. The decisions on this subject cover a period roughly from 1909 to 1925.

74. Under Section 182 of Act II of 1901 a second appeal lay to the High Court from the appellate decree of a District Judge. Mr. Kunzru's argument is that where appeals for some purposes lie then there is a power or superintendence (or revision) under Section 107 Government of India Act and the previous Section 15 High Courts Act 1861. He also argues that restrictions on the revisional powers of the High Court in an act of the local Legislature are void. If these arguments were correct, then the long series of decisions of this High Court from 1909 to 1925 are wrong, and both Counsel and court missed these points. These arguments have not been accepted in any decision of this Court. It is argued that there are some decisions of the Calcutta and Madras High Courts in which the arguments have been partly accepted. One such case is Adhar Kumar v. Radha Madan Mohan : AIR1932Cal660 . In that case the President of the Calcutta Improvement Tribunal purported to act as court under Section 32, Land Acquisition Act and ordered some funds to be used in the purchase of lands. No appeal lay but the High Court interfered in revision. The High Court held that revisional power lay under Section 115, Civil Procedure Code, as well as under Section 107, Government of India Act, and there is no reference to any bar of revision by the local Act. The ruling therefore does not support the arguments. A similar reason makes the ruling Gocool chandra v. Mailal Ghosh : AIR1931Cal553 , inapplicable. In Pigot v. Ali Mahammad Mondal, 60 Ind. Cas. 325 : 48 C. 522 : A.I.R. 1921 Cal. 30 : 22 Cr. L.J. 213 : 32 C.L.J. 270(F.B.), it was held that the High Court had power under Section 107 of the Government of India Act to set aside proceedings by a Magistrate under Section 145,Criminal Procedure Code, which were instituted without jurisdiction. At the time of this ruling in 1920, Section 435, Criminal Procedure Code which deals with the power under the Code of revision stated that

Orders made, and proceedings under Chapter XII, are not proceedings within the meaning of this section.

75. The effect of this provision merely was that there was no power of revision given by the Code. But there was no provision in the Code that no revision should lie. The decision therefore does not support the argument for the applicant.

76. The ruling is similar to In the matter of the Petition of Nathu Mal 24 A. 315 : A.W.N. 1902 74. In H.D. Chatterjee v. L.B. Tribedi 68 Ind. Cas. 274 : 49 C. 528 : A.I.R. 1922 Cal. 427 : 26 C.W.N. 78, it was held that the rent Controller under the Calcutta Rent Act of 1920 was a court of civil jurisdiction, because he has the powers of a Civil Court and follows the procedure of a Civil Court, and therefore his order could be revised by the High court under Section 107 Government of India Act. As it is not stated that there was any provision in the Calcutta Rent Act against revision the case does not support the arguments. It is not necessary to refer to other cases cited. From the considerations set forth the conclusion follows that the following propositions of law are established.

(1) The local Legislature has power (with previous sanction) to pass laws affecting the jurisdiction and powers of the High Court, whether derived from the Government of India Act 1919, the Letters Patent, or the Codes.

(2) The power of superintendence under Section 107 Government of India Act, 1919, depends on appellate power and can also be affected by laws of the local Legislature.

(3) Where a special tribunal is created by an Act of the local Legislature or of the Indian Legislature to determine rights created by that Act, and that Act states that the decision of the tribunal shall be final there is no interference with the rights of appeal, superintendence, or revision of the High Court, because the High Court never had such rights over that tribunal

(4) Such a tribunal is created by Sections 18 to 23 of the United Provinces District Boards Act, 1922, and under these sections an election petition is not tried in the court of the District Judge, but the District Judge, presides in the election court as a persona designata. Accordingly I consider that no application in revision will lie in the present case, and I would dismiss the application with costs.

77. The petition for revision is dismissed with costs.


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