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Commissioner, Corporation of Madras Vs. T. Ekambara Naicker and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai
Decided On
Reported inAIR1927Mad980
AppellantCommissioner, Corporation of Madras
RespondentT. Ekambara Naicker and anr.
Excerpt:
- - it was suggested that there were rules under which the order had been issued and that in accordance with those rules the order was a perfectly valid one within the meaning of section 49 (1), government of india act. we are, therefore, satisfied that the order was properly published and consequently under section 49 itself these proceedings and orders cannot be called in question in any legal proceeding. we consequently hold that the provisions of rule 6 were satisfied in this case......a presumption that this act of publication was done regularly, namely, in accordance with the rules. rules are contemplated under s.49, and therefore, we may presume that the notification was properly published in the absence of any evidence to the contrary. in addition, we have a government order produced, which itself orders the publication of the notification in the gazette and that government order is authenticated as being by order of the government ministry of local self-government complying with the rules framed under section 49 which have not been shown to be ultra vires. we are, therefore, satisfied that the order was properly published and consequently under section 49 itself these proceedings and orders cannot be called in question in any legal proceeding.2. this disposes.....
Judgment:

1. This is an appeal against an order made under Section 45, Specific Relief Act, and relates to the holding of the election of a councillor for the 29th division of this city. A great many objections to the validity of the preceedings prior to the actual election were taken before the learned Judge in the lower Court, but he has disposed of nearly all of them in favour of the appellant. The ground on which he granted this order staying the election was that the order of Government and its notification in the Fort St. George Gazette fixing the date of election as the 30th September 1926 were invalid because they were not proved to be orders framed in accordance with law. The learned Judge held that the order had to be one made by the Governor in Council meaning thereby the Governor in consultation with his ministers. It was suggested that there were rules under which the order had been issued and that in accordance with those rules the order was a perfectly valid one within the meaning of Section 49 (1), Government of India Act. The learned Judge, however, held that the power of the Governor in Council could not be delegated and could not be exercised under any departmental rules by any persons other than those constituted as the proper authority. No rules were produced in the lower Court because neither party was in a position to obtain these rules from Government but now the learned Advocate General on whom notice of this appeal was served appears and has produced a copy of the rules framed under Section 49. Apart from these rules it seems to us that the learned Judge was wrong in disregarding the Government Order and notification. The notification fixing the election was, published in the Local Gazette and under Section 78 Evidence Act, it is proof of the order of Government fixing that election. Under Section 114, Evidence Act, a presumption arises that all official acts are regularly done. There is, therefore, a presumption that this act of publication was done regularly, namely, in accordance with the rules. Rules are contemplated under S.49, and therefore, we may presume that the notification was properly published in the absence of any evidence to the contrary. In addition, we have a Government order produced, which itself orders the publication of the notification in the Gazette and that Government order is authenticated as being by order of the Government Ministry of Local Self-Government complying with the rules framed under Section 49 which have not been shown to be ultra vires. We are, therefore, satisfied that the order was properly published and consequently under Section 49 itself these proceedings and orders cannot be called in question in any legal proceeding.

2. This disposes of the appeal so far as the appellant is concerned; but the respondent seeks to support the order on various other grounds. These grounds related to the interpretation of the election Rules 1 to 6 and have been dealt with fully by the learned Judge in the lower Court, and we agree in his conclusion on all points except one. This point related to Rule 6 of the election rules. That rule lays down that three days before the election the Commissioner should prepare a schedule of valid nominations of candidates for election and prescribes further procedure. This schedule of valid nominations was prepared by the Commissioner before the date originally fixed for election namely, 22nd September 1926. Objections were taken to this list, but they were not upheld and consequently, when the final orders of the Chief Justice had been passed, the list of valid nominations remained the same as originally framed. This having been published as prescribed by the rules was in force and was available for the election which was ordered to be held on a subsequent date. We consequently hold that the provisions of Rule 6 were satisfied in this case. In the result, the appeal must he allowed and the petition dismissed with taxed costs throughout.


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