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Taraprasad Sukul Vs. Abul Kasem Khundkar S/O Abu Bakkr Khundkar - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1938Cal359
AppellantTaraprasad Sukul
RespondentAbul Kasem Khundkar S/O Abu Bakkr Khundkar
Cases ReferredBhaishankar Nanabhai v. The Municipal Corporation
Excerpt:
- .....on 15th november 1937. thereafter the opposite party filed a petition under rule 1 (a) of the election rules before the district magistrate of rajshahi praying for setting aside the petitioner's election inter alia on the ground that the nomination papers and the applications of the opposite party had been improperly rejected. it appears that the district magistrate did not issue any notice of this application to the petitioner, but on 3rd december 1937, he considered the petition and passed an order in course of which he held that there was a material irregularity as contemplated under section 18-b (c) of bengal local self-government act, and further held that it was a matter of identification and not qualification, so that the decision of the sub-divisional magistrate in this.....
Judgment:

S.K. Ghose, J.

1. The petitioner in this rule was a candidate for election to the Local Board of Natore and the opposite party was one of his rival candidates. After the publication of the list of voters the opposite party filed three applications under Rule 24 of the Elections Rules under the Bengal Local Self-Government Act, for the correction of the name of voter No. 965 which was recorded as Abdul Kasem Mia, son of Abu Bakkr Mia and stating that the correct name should be Abul Kasem Khundkar, son of Abu Bakkr Khundkar. Subsequently the opposite party also filed three nomination papers. The District Magistrate of Rajshahi delegated his powers in respect of this election to the Sub-Divisional Magistrate of Natore under Section 5, Local Self-Government Act. Subsequently the Presiding Officer being the aforesaid Sub-Divisional Magistrate, rejected the applications and the nomination papers of the opposite party with the result that the petitioner was duly elected without contest on 15th November 1937. Thereafter the opposite party filed a petition under Rule 1 (A) of the Election Rules before the District Magistrate of Rajshahi praying for setting aside the petitioner's election inter alia on the ground that the nomination papers and the applications of the opposite party had been improperly rejected. It appears that the District Magistrate did not issue any notice of this application to the petitioner, but on 3rd December 1937, he considered the petition and passed an order in course of which he held that there was a material irregularity as contemplated under Section 18-B (c) of Bengal Local Self-Government Act, and further held that it was a matter of identification and not qualification, so that the decision of the Sub-Divisional Magistrate in this respect was not final. Accordingly acting under Section 18-B of the Act, the District Magistrate declared the election to be void and further directed the Sub-Divisional Magistrate to hear the petition under Rule 24 in the presence of the applicant and order correction of name if he was satisfied that the present entry was wrong. Against that order, the petitioner filed this petition under Section 115, Civil P.C. and obtained this rule.

2. The initial difficulty in the way of the petitioner is that application under Section 115, Civil P.C. does not lie in a matter like this. Various contentions have been made by the learned advocate for the petitioner. It is pointed out that the decision of the District Magistrate was made ex parte, that he had previously delegated his powers to the Sub-Divisional Magistrate of Natore; that if the dispute was about identification only, then it was not expressly covered by the Election Rules, and further that the Sub-Divisional Magistrate having rejected the nomination papers and the applications, those orders were final under Rule 15 of the Election Rules. It is unnecessary to examine these contentions in detail. They only lead to this result, that the District Magistrate in making the order complained' against acted illegally or irregularly in the exercise of his jurisdiction. That brings-us back to the question as to whether this Court can interfere under Section 115, Civil P.C. The answer to that is furnished by Section 148, Bengal Local Self-Government Act of 1885 which states:

Every decision of the authority appointed under Clause (a) of Section 138 to decide disputes relating to elections under this Act shall be final and shall not be questioned in any Court.

3. If it were possible to contend that suck a provision in the Bengal Act would not limit the jurisdiction of the Civil Court or of the High Court, the position would be different. But that is not the case. Section 148 was introduced by the Bengal Amendment Act 24 of 1932 which had received the previous sanction of the Governor-General under Sub-section (3) of Section 80-A, Government of India Act, 1919. Therefore, there is no question that the authority is sufficient to amend or repeal the provisions in the Code of Civil Procedure. It is contended that there is no express repeal of any provision, of the Code of Civil Procedure which is not mentioned as the Limitation Act is mentioned in the succeeding Section 149. But the language of Section 148 is clear enough, and does not admit of the interpretation that the powers reserved to this Court by Section 115, Civil P.C. are saved. It has been contended that the words 'final' only means that it is not open to appeal. But the word final has to be taken along with the succeeding words 'and shall not be questioned in any Court', and the plain meaning of those words is that the decision is not subject either to appeal or to revision. This, I find, is expressly held in two recent cases of this Court, Bon Behari Mukherjee v. Makhan Lal Mukherjee (1937) 42 CWN 282 and Phanindra Nath Sarkar v. Dedar Hussaim Khan : AIR1938Cal240 . The learned advocate for the petitioner has further contended that Section 107, Government of India Act, 1919 may be applied. The petition itself does not mention the Government of India Act and it is conceded that so far as Section 224 of the present Government of India Act, is concerned it-does not help the petitioner. In any case the old Government of India Act 1919 would not be applicable because the cause of action arose and the petition was filed after the new Government of India Act had come into force. For the petitioner it has been strongly contended that this Court should not surrender its jurisdiction lightly in favour of a special tribunal. But the point cannot be decided solely on a presumption against ousting the established and creating a new jurisdiction.

4. Section 9, Civil P. C, recognizes that the jurisdiction of the Civil Courts may be limited expressly or impliedly. If there is a special tribunal appointed by an Act to decide questions as to rights created by that Act, then the jurisdiction of that tribunal is exclusive, except in so far as is expressly provided for or necessarily implied. It cannot be said that there is an ouster of the jurisdiction of the ordinary Courts because such Courts never had any such jurisdiction. In this connexion 1 would draw attention to the remarks of Sir Lawrence Jenkins in Bhaishankar Nanabhai v. The Municipal Corporation, Bombay (1907) 31 Bom 604 where he was dealing with a question under the Bombay Municipal Act of 1888. Taking all these matters into consideration, I think that this Court cannot interfere under Section 115, Civil P.C. and that this rule must stand discharged. There will be no order for costs.

Nasim Ali, J.

5. I agree with the order which my learned brother has made in this case.


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