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M. Niaz Ahmad Khan Vs. Abdul Latif - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in157Ind.Cas.270
AppellantM. Niaz Ahmad Khan
RespondentAbdul Latif
Cases ReferredMuhammad Ikram Khan v. Mirza Muhammad Baker
Excerpt:
u.p. municipalities act (ii of 1916), section 39 - election rules under--order of revising officer--whether can be impugned in civil court. - - if at all, under the specific relief act, in which the granting of a relief is at the discretion of the court, and i have no doubt whatever that the decision of the lower appellate court is perfectly correct......of the courts below, and it is only necessary to state here that during the preparation of the roll abdul latif made an objection to the entry of the appellant's name on the ground that he was in arrears with the payment of some municipal taxes on behalf of a wakj of which he was mutawalli. the revising committee, however, disallowed the objection on november 14,1931, but the district magistrate on the same date passed an order to the effect that the appellant's name should be removed from the roll if he was a defaulter. this order was passed without the district magistrate having seen the report of the revising committee, and subsequently on november 16, the district magistrate after seeing that report passed another order to the effect that the appellant's name should not be.....
Judgment:

Kendall, J.

1. These two appeals arise from a suit which was brought by the plaintiff-appellant against one Abdul Latif and the returning officer of the Municipality of Ghaziabad, for certain reliefs which he claimed as a result of some happenings during the local elections of 1931. The reliefs that he claimed were: (a) an injunction restraining the returning officer from declaring Abdul Latif as a duly elected candidate, (b) in case Abdul Latif was so declared, a declaration that such declaration was void, (c) an injunction against Abdul Latif restraining him from acting as a member of the Municipal Board of Ghaziabad, and (d) a declaration that the District Magistrate's order of November 20, 1931, was illegal, and that the plaintiff was an elector and had been duly nominated from the eastern ward of the Muslim constituency. During the hearing of the appeal I was told that fresh elections would take place again in the autumn of this year, so that reliefs (a) to (c) enumerated above cannot be of any value to the plaintiff-appellant, while the value of relief (d) is exceedingly problematical. The suit was based on the allegations that there were irregularities in the preparation of the electoral roll, and that this took place as a result of the application made by the defendant-respondent Abdul Latif, and that in consequence of these irregularities the name of the appellant was wrongly removed from the electoral roll of 1931. The trial Court found as a result of an exhaustive and very elaborate judgment that there had been some irregularities, and that the plaintiff was entitled to the reliefs claimed but the lower Appellate Court has held that the Civil Court has no jurisdiction to decide questions such as are raised in this case, and has dismissed the plaintiff's suit.

2. I have heard learned Counsel for the appellant at some length, but chiefly in support of the allegations that there were some irregularities in the preparation of the electoral roll. The circumstances are described at length in the judgments of the Courts below, and it is only necessary to state here that during the preparation of the roll Abdul Latif made an objection to the entry of the appellant's name on the ground that he was in arrears with the payment of some Municipal taxes on behalf of a wakj of which he was mutawalli. The Revising Committee, however, disallowed the objection on November 14,1931, but the District Magistrate on the same date passed an order to the effect that the appellant's name should be removed from the roll if he was a defaulter. This order was passed without the District Magistrate having seen the report of the Revising Committee, and subsequently on November 16, the District Magistrate after seeing that report passed another order to the effect that the appellant's name should not be removed. Then the respondent, Abdul Latif, made an application to the District Magistrate to the effect that he had had no power to pass such an order after November 15, and in consequence of this the District Magistrate set aside the nomination of the appellant on the ground that his second order had been ultra vires, so that the final result was that the appellant's name was removed. Why this was done, seeing that the order of November 14, was only a provisional order, has not been made clear to me, but apparently this was the course of the proceedings as the result of which the appellant claims that he has been damnified and seeks relief from the Civil Court.

3. It is unnecessary for me to discuss the arguments of learned Counsel for the appellant at any great length because I am of opinion, that he has not been able to show that the Civil Court has any jurisdiction to deal with the matters which have been agitated in this suit at such length. He has pointed to Section 9 of the Civil Procedure Code, which provides that the Civil Courts have jurisdiction to try all suits of a civil nature 'excepting suits of which their cognizance is either expressly or impliedly barred.' The right to be elected to the Municipal Board is, he claims, a civil right, and the jurisdiction of the Civil Courts has not been barred by any express provision of law. Moreover, there have been some decisions of the Calcutta High Court which give some support to the view that the Civil Court may interfere in these matters, but as the lower Appellate Court has pointed out, the rules for Municipal election in Bengal are not identical with those which are in force in these provinces, and the view that has been taken by this Court is that 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. In such a case there is no ouster of such a jurisdiction, as the ordinary Courts never had any. This is the view that was taken by the Full Bench in the case of Abdul Rahman v. Abdul Rahman : AIR1925All380 and the most recent pronouncement on the question is that of a Bench of this Court in the case of Muhammad Ikram Khan v. Mirza Muhammad Baker : AIR1935All106 in which it has been specifically held that the orders passed by the revising Committee or the District Magistrate under the election rules framed by the Local Government under Section 39 of the U.P. Municipalities Act are final and cannot be impugned in a Civil Court. All of the reliefs claimed by the plaintiff are such as could be granted; if at all, under the Specific Relief Act, in which the granting of a relief is at the discretion of the Court, and I have no doubt whatever that the decision of the lower Appellate Court is perfectly correct. I have mentioned that the relief numbered as (d) is now of problematical value only, whereas the others are of no practical value whatever. The argument that has been put forward by learned Counsel for the appellant is that the order of the District Magistrate removing the appellant's name from the electoral roll will be interpreted as meaning that the appellant is a defaulter, whereas the finding of fact of the Civil Court is that he is not a defaulter. The finding of the Civil Court is beside the mark, but I find it difficult to believe that the order of the District Magistrate can possibly be interpreted as meaning that the appellant is a defaulter. The account I have given will show that his final order was not a decision on the merits of this question at all and it can hardly be impossible for the appellant to bring this fact to the notice of the local authorities when he applied to be enrolled for the purposes of the forthcoming election. The result is that the appeals are dismissed with costs.


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