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Sachindra Nath Das Vs. Surya Kanta Misra - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1937Cal720
AppellantSachindra Nath Das
RespondentSurya Kanta Misra
Cases ReferredMahendra Rahman Mia v. Kanti Chandra Basu
- costello, ag. c.j.1. this matter has been very fully and ably argued by mr. mallick on behalf of the petitioner, and we have given very careful attention to all the arguments put forward by him: but we have come to the conclusion that this is not a matter in which this court can properly interfere. it is necessary that i should briefly recall the facts of the case in order to make it clear what was the position which has given rise to these proceedings. the petitioner sachindra nath das and one surya kanta misra were candidates for election to the bashirhat local board. they were candidates from thana baduria within the district of 24-parganas and the election was held in the year 1936. the petitioner put in one nomination paper accompanied by a treasury chalan duly stamped, in compliance.....

Costello, Ag. C.J.

1. This matter has been very fully and ably argued by Mr. Mallick on behalf of the petitioner, and we have given very careful attention to all the arguments put forward by him: but we have come to the conclusion that this is not a matter in which this Court can properly interfere. It is necessary that I should briefly recall the facts of the case in order to make it clear what was the position which has given rise to these proceedings. The petitioner Sachindra Nath Das and one Surya Kanta Misra were candidates for election to the Bashirhat Local Board. They were candidates from thana Baduria within the district of 24-Parganas and the election was held in the year 1936. The petitioner put in one nomination paper accompanied by a treasury chalan duly stamped, in compliance with the provisions of Rule 29 of Election Rules under the Bengal Local Self-Government Act, 1885, as modified up to 1st September 1933. Surya Kanta Misra on the other hand put in four nomination papers but with only one treasury chalan which was attached to one of the nomination papers. The Sub-Divisional Officer of Bashirhat, in the exercise of the powers delegated to him by the District Magistrate under Rule 30 of the Election Rules, appointed the 19th November 1936 as the date for holding the scrutiny of nomination papers and fixed 19th December 1936 as the date of the election. On the date of the scrutiny, the Sub-Divisional Officer of Bashirhat accepted as being in order the nomination paper put in by Sachindra Nath Das but he rejected the nomination paper of the rival candidate Surya Kanta Misra on the ground that the particular nomination paper which was accompanied by the treasury chalan was not properly filled in as required by Rule 29 of the Election Rules and that as the other nomination papers had no treasury chalans attached to them, they could not be looked at and were of no use to the candidate. Thereupon as there was no other candidate except the two persons whom I have named, the present petitioner Sachindra Nath Das was declared duly elected as a member of the Bashirhat Local Board from thana Baduria. That the Sub-Divisional Officer was wrong in not looking at all the nomination papers put in by Surya Kanta is clear beyond all doubt whatever. Shortly after Sachindra Nath had been declared elected, Surya Kanta applied for a review of the order which the Sub-Divisional Officer had made with regard to the nomination and the Sub-Divisional Officer fixed 28th November 1936 as the date for the hearing of that application. Before 28th November 1936 arrived, however (in foot on the day following the making of the order by the Sub-Divisional Officer) there came a circular letter from the Deputy Secretary to the Government of Bengal to this effect:

Government are advised that the purpose of Section 16-A would be served if in such circumstances the candidate is allowed to submit more than one nomination paper along with a receipt of single deposit made under the section and the Government of Bengal are therefore pleased to direct that a candidate for election from a particular constituency may be allowed to fill more than one nomination paper along with treasury chalan showing that a deposit has been made.

2. One would have thought that no one with any knowledge of election matters, and indeed no one exercising a reasonable amount of common sense could have failed to realise that the deposit which was required to be made was not in the nature of a fee for the examination of a particular nomination paper but was of a different nature altogether. There was therefore no reason at all why a candidate should not submit as many nomination papers as he chose to do, so that if one of them happened to be not in order, one of the others could be scrutinised and if found to be in order, accepted and held to be effective. Apparently, there was some confusion of thought in the matter and so the Government of Bengal thought it desirable to send out the circular letter to which I have just referred.

3. The matter came before the Sub-Divisional Officer on 28th November and was considered by him in the presence of the parties and their pleaders, and no doubt after hearing arguments. On 1st December, a decision was given by the Sub-Divisional Officer dismissing the application. So far as any question of reviewing the order with regard to the nomination is concerned, the matter was concluded, the result being that on 1st December 1936 the present petitioner Sachindra Nath was, or rather had been already declared a member of the Local Board. Some three weeks later, a judgment was given in this Court in Chandra Kishore Mandal v. Sachindra Kumar Roy Choudhury : AIR1937Cal174 . In that case it was held that the High Court has jurisdiction to revise an order made by the District Magistrate under Rule 1-A of the Election Rules. Whether or not that judgment was brought to the notice of the parties, we do not know. The position still was that the order made by the Sub-Divisional Officer held good. But on 8th January 1937 a petition was filed by Surya Kanta (who is of course the respondent in the present proceedings) before the District Magistrate asking that the election should be set aside on the ground that his nomination papers had been rejected and improperly rejected. On 16th January 1937 the District Magistrate, who at that time was Mr. Harold Graham, rejected the application holding that he had no power to grant the relief sought for by Surya Kanta Misra. It must be taken, I think, that the rejection of the application by Mr. Graham amounted to a final order within the meaning of the Election Rules. Still no action was taken in the way of moving this Court in the matter. What happened however was that some of the supporters of Surya Kanta Misra headed by one Rosunali Mandal approached the Local Government in the matter, and put forward the same kind of contentions which had previously been put forward before the District Magistrate on 24th February 1937. The Government of Bengal sent the application which had been put in by Rosunali Mandal and other persons to the District Magistrate. It is said that it was accompanied by a direction that the Magistrate should hold a further enquiry in the matter and should decide the application under Section 18-B(1)(o), Local Self-Government Act. About a month later; there appeared a notice in the Gazette that the present petitioner Sachindra Nath Das had been validly elected. The notice in the Gazette is dated 25th March 1937 and the Notification No. 1692 of the Local Self-Government Department of the Government of Bengal was dated 22nd March 1937. On 12th April 1937 there was a meeting of the newly constituted Local Board and Sachindra Nath was duly sworn in as a member and, so it is said, took part in the election of the Chairman and the Vice-Chairman. Some days later, that is to say on 21st April 1937 Mr. Graham dealt with the matter of the application of Rosunali and others and dismissed it on the ground that he could not re-open the question or review his previous order. The petitioner contends that this in effect was the third of a series of final orders. At any rate, it was undoubtedly a final order and in the ordinary course of events that order would have decided the case once and for all. It so happened however that in the following May, Mr. Graham went on leave and he was succeeded by Mr. Carter, the District Magistrate of the 24-Parganas.

4. The Misra party, if I may so describe them, evidently thought that the change in the office of the District Magistrate gave them an opportunity of re-opening the matter, and on 5th May 1937 they again approached the District Magistrate, that is to say Mr. Carter, and applied for a review of the order made by Mr. Graham. They asked Mr. Carter to reconsider the election petition and to set aside the election of Sachindra Nath Das. Apparently Mr. Carter decided to deal with the matter i.e. to hear the application. On 11th May, Sachindra Nath Das received notice that Mr. Carter would hear the application on the 15th May at 11 o' clock in the forenoon. On 15th May Mr. Carter heard the application. Some attempt was made apparently to obtain an adjournment on the ground that Sachindra Nath had not received certified copies of certain papers which he supposed to be necessary, and he also put forward the plea that he desired to consider or rather to reconsider his legal position. The application for adjournment was rejected however and Mr. Carter proceeded to hear the matter and to deal with it at once. Two days later Mr. Carter gave his decision and acting under the provisions of Section 18-B he set aside the election. It is against that order setting aside the election that the present proceedings have been taken.

5. With regard to the original rejection of Misra's nomination papers by the Sub-Divisional Officer, Mr. Carter said:

It seems to me that the Sub-Divisional Officer's objection is so highly technical that it borders on absurdity. I have no doubt whatever that the nomination paper should have been accepted and that an injustice has been done to the candidate.

6. He then proceeds to say:

I therefore decide under Section 18-B (1)(c), Local Self Government Act, that there had been an irregularity in respect of Babu Surya Kanta Misra's nomination papers as a result of which the result of the election has been materially affected. Consequently the election of Babu Sachindra Nath Das is declared to be void, and a re-election will be held, the date of which will be communicated in due course.

7. The section under which Mr. Carter purported to act, so far as is material, reads thus:

Save as hereinafter provided in this section, if after due inquiry, the authority appointed under C1. (a) of Section 138 to decide disputes relating to elections under this Act is of opinion that the result of the election has been materially affected' by any irregularity in respect of a nomination paper, or by the improper reception or refusal of a vote, or by any non-compliance with the provisions of this Act or the rules made thereunder, or by any mistake in the use of any form prescribed for any election, the election of the returned candidate shall be void, provided that the previous proceedings of the local authority concerned shall not be deemed to be affected thereby in any respect.

8. Those in brief are the facts and the circumstances which have led to this matter being brought to this Court. It is contended that the decision arrived at by Mr. Carter, the decision which I have just referred to, ought to be set aside by this Court on the ground that Mr. Carter had no jurisdiction to deal with the matter in any way whatever. We are accordingly: asked to interfere under the powers conferred on this Court by Section 115, Civil P.C., upon the basis, of course, that Mr. Carter had exercised a jurisdiction not vested in him by law, or that he acted in the exercise of his jurisdiction illegally and with material irregularity. There is no doubt whatever in my mind that what was done by Mr. Carter was wholly and indeed flagrantlyilleagal in that there was no sort of justification or warrant for the action taken by Mr. Carter in the matter of this particular election. It had previously come before Mr. Graham on more than one occasion as I have already indicated. Mr. Graham had considered the matter, he had heard the parties and he had made an order. That in my view finally disposed of the question in controversy between the two candidates. It is difficult to understand on what sort of basis Mr. Carter could have imagined that he had a right to re-open the matter, and at first sight it seems that he was acting in a pragmatic, not to say arbitrary and high handed manner. One can only suppose in explanations in his conduct in so acting, that he was influenced by the fact that a letter had been sent by the Government of Bengal. I refer to the letter of 27th February 1937, which is signed by one G S. Dutt as Secretary to the Government of Bengal. In para. 3 of that letter we find this:

Government are advised that although the scrutiny of the nomination papers by the Sub-divisional Officers under Rule 30 of the Election Rules is final at that stage, the election of the returned candidate shall be void if, under Section 18-B 1)(c) of the Act, the District Magistrate is of opinion that the result of the election has been materially affected by any irregularity in respect of a nomination paper. Government are further advised that the words 'any irregularity in respect of a nomination paper' in Section 15-B(1)(c) include both improper reception as well as improper rejection of a nomination paper.

9. It is to be observed in the first place that Section 18-B makes no reference whatever to the District Magistrate as such; it refers to the authority appointed under C1. (a) of Section 138. The question whether the authority appointed under Clause (a) of Section 138 was the District Magistrate or rather whether the District Magistrate was the authority appointed under C1. (a) of Section 138 is one which is by no means free from doubt. I shall refer to that matter later on. Returning to the letter of 27th February 1937, the last paragraph is in these terms:

The present matter may therefore be decided by the District Magistrate under Section 18-B (1)(c), Local Self-Government Act.

10. That is the letter with which was forwarded the application of Rosunali Mandal. Long after that letter had been received by the District Magistrate, the matter was dealt with and disposed of by Mr. Graham. It would appear therefore that Mr. Garter can scarcely avail himself of the excuse that the Local Government had directed him, or had requested him as District Magistrate to deal with the matter of this election. It may however perhaps be taken as an extenuating circumstance that the letter was in existence. One would have thought however that Mr. Garter might have realized, having regard to the chronology of the matter, that the application made to him was obviously nothing but an attempt to get him to overrule something which his predecessor had done. It is difficult to see how Mr. Carter could have thought it possible for him to sit, as a sort of Court of Appeal, and set aside an order which his predecessor had made. What Mr. Carter did was wholly unjustifiable in law.

11. The question then arises what is the relief to which the present petitioner, Sachindra Nath Das, is entitled, or more accurately the question is, is he entitled to the relief which he now seeks at the hands of this Court. In order to answer that question, the first matter to be considered is the precise terms of Section 115, Civil P.C., as regards the fundamental conditions which are necessary, before this Court can assume what is ordinarily called 'jurisdiction in revision'. I have referred to a part of the section. I now refer to the antecedent part of it-'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto....' There are therefore three conditions necessary: (1) that there should be a case which has been decided by a Court; (2) that, that Court should be subordinate to this High Court, and (3) that there should be no appeal from that Court to this High Court. It has not been suggested in the course of the argument and indeed it cannot be suggested that there is any appeal from the decision of any authority appointed under Clause (a) of Section 138, Bengal Local Self-Government Act, to this Court. But it has not only been suggested but strenuously argued that authority is a Court within the contemplation of Section 115, and that the authority is a Court subordinate to this Court. We are invited to exercise the revisional jurisdiction of this Court and to set aside the decision of Mr. Garter on that basis. It is argued that the District Magistrate of the 24-Parganas having been appointed an authority, or rather the authority under C1. (a) of Section 138, is not merely a persona designata but is a Court, and in support of that proposition we have been referred to the case in Kokku Parthasaradhi Naidu v. Chintlachervu Koteswara Rao AIR 1924 Mad 561. The judgment of Schwa be, C.J. is as follows:

A preliminary point is taken that this Court has no power of revision under Section 115. Civil P.C. over the decision of a District or Subordinate Judge when acting under that rule. That depends on whether the Judges therein referred to are acting as Courts, or acting merely as personae designatae, that is to say persons selected to act in the matter in their private capacity and not in their capacity as Judges. There has been considerable conflict of opinion on this point since the coming into force of this Act, and I do not think that the decisions that have been given on the matter are of great assistance to us in arriving at the proper conclusion, and we have to look at the Act and the rules and the law as it stands. The law is I think quite definitely established by the decision in National Telephone Co. v. Postmaster-General (1913) A C 546, in the words of Lord Parker at page 562, that 'where by statute matters are referred to the determination of a Court of Record with no further provision, the necessary implication is I think that the Court will determine the matters as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remains the same'.

12. Then the Chief Justice continues:

If this matter had been referred to the District Court or Subordinate Judge's Court in terms, in my judgment no question could arise because following the 'words of the judgment just quoted, the matter would be determined by the Court as a Court, it being given jurisdiction for this particular purpose, and all the incidents which include the incident of being liable to revision must follow, although no appeal would lie in this particular case because an appeal has been expressly precluded, for by Section 57(2) of the Act, and by the rules this 'decision is to be final'. But as the word 'Judge' is used and not the word 'Court', one has to look carefully to see whether the word 'Judge' was used of him in his capacity as Judge or in his personal capacity, and I think great light is thrown upon this by two other rules. Rule 12(2) of the rules for election refers to 'an election or other competent Court' and it is quite clear that it is there referring to a Court of a District Judge or Subordinate Judge; and by Rule 4(3) of the rules for the conduct of enquiries, power is given to the District or Subordinate Judge in certain cases 'to direct any Court subordinate to him to hold the enquiry'. I find it impossible to hold that a reference to a Judge with power to refer to a Court subordinate to him can mean anything else than reference to a Judge sitting as a Judge in the exercise of his ordinary jurisdiction extended for that purpose. For these reasons, in my judgment, the power of revision lies.

13. Mr. Mallick in his argument on behalf of the petitioner has laid great stress on that decision, and he relies upon it for the purpose of saying that this Court, in the circumstances of the present case, has power to revise the decision of Mr. Carter, the argument being that the expression 'the Magistrate of the District' as used in Rule 1-A has reference to the Magistrate as such and not to the person who happened for the time being to be the Magistrate of the District. In other words, the word 'Magistrate' is used with the same implication as the word 'Judge' in the case which was the subject of Sir Walter Schwabe's judgment to which I have just referred. Unfortunately there is a long catena of cases dealing with this aspect of the matter and in particular there have been a large number of cases decided by the High Court of Bombay with the result that a great deal of confusion has arisen owing to the fact that those decisions of the High Court of Bombay are variable in their nature and are not consistent with each other. On the whole, however, the trend of the decisions of the Bombay High Court is towards a view which does not support the case of the present petitioner. I do not propose to refer to these oases in detail. But I must call attention to the references in order to lead up to the case which was decided in the High Court of Rangoon. The oases of the Bombay High Court are these: Bhaishankar Nanabhai v. Municipal Corporation, Bombay (1907) 31 Bom 604, Balakrishna Daji Gupta v. Collector, Bombay Subarban AIR 1923 Bom 290, Gangadhar Bapurao Gadre v. Hubli Municipality : AIR1926Bom344 , Sholapore Municipality v. Tuljaram Krishnasa AIR 1931 Bom 582 and Balaji Sakharam v. Merwanji Nowroji Antia (1897) 21 Bom 279. In Sholapore Municipality v. Tuljaram Krishnasa AIR 1931 Bom 582 it was held that the High Court had power to revise the order of the District Court, as that Court, exercising judicial functions in accordance with the procedure laid down in the Land Acquisition Act under sub-ss. 3 and 4 of Section 198, Bombay City Municipalities Act, 1925, was a Court subordinate to the High Court under Section 115, Civil P.C., 1908, and in any event under Section 107, Government of India Act. Patkar, J. at page 552 said:

It appears therefore that where a Judge or the presiding officer of a Court as distinguished from the Court itself is directed to perform any function of an authority created by a statute, such a Judge may be considered as a persona designata and not a Court, but where a Civil Court subordinate to the High Court is constituted an authority to decide the rights between the parties and is directed to perform judicial functions, it is difficult to hold that such a Court is a persona designata and not a Court subordinate to High Court.

14. The previous Bombay decisions or some of them were considered by the Rangoon High Court in Municipal Corporation of Rangoon v. M. A Shakur AIR 1926 Rang 25 where a Full Bench presided over by Rutledge, C.J. held that:

The Chief Judge of the Rangoon Small Cause Court, in performing the functions assigned to him by Section 14,Rangoon Municipal Act, acts as a persona designata and not as a Court and that the High Court has no jurisdiction either under Section 115, Civil P.C., or under Section 107, Government of India Act to interfere in revision with his decisions.

15. In the judgment at page 576 we find this passage:

The effect of the Bombay decisions, with which we are in respectful agreement, is that when, by an Act of the Legislature, a new authority is constituted for the purpose of determining questions concerning lights which are themselves the creations of the Act, and a Judge or Presiding Officer of a Court, as distinct from the Court itself, is directed to perform the functions of the newly created authority, then it must be presumed, unless the contrary is expressly enacted or necessarily implied, that the intention of Legislature was that the Judge or Presiding Officer should perform those functions as a persona designata and not as a Court. Such a presumption is stronger in the case of a Court like the Rangoon Small Cause Court which consists of a plurality of Judges when one particular Judge is invested with the new powers.

16. It is to be seen therefore that there is a variety of opinions on the fundamental question whether in the circumstances such as the present, the authority set up functions as a Court or merely as a persona designata. On the whole, we are disposed to say, having regard to the precise provisions of the Bengal Local Self. Government Act, that it was intended that the District Magistrate should function not as an individual in his private capacity, but as constituting a Court. The question then arises whether assuming that the District Magistrate was to function as a Court, that Court is subordinate to this Court within the contemplation of Section 115, Civil P.C. It is to be borne in mind that a District Magistrate when normally functioning as a Court exercises jurisdiction in criminal matters and not in civil matters. It may therefore well be the case that when some new function is imposed upon him by some special Act, although he acts as a Court and not as an individual, that Court is not subject to the civil jurisdiction of this Court. In the view we take of this matter on other points, we do not think it necessary to express any final opinion upon that point.

17. There is in existence the case to which I have already referred incidentally, namely, the decision of this Court given on 22nd December 1936, which might have influenced the present respondent in the direction of taking steps to have the earlier decision in respect of the election of his opponent considered and, if possible, set aside. The case I am referring to is the case in 41 C W N 441,1 which was decided by Jack and Patterson, JJ. In that case the learned Judges took the view that it was possible for this Court to revise in a proper case an order made by 'a District Magistrate under Rule 1-A of the Election Rules under the Local Self-Government Act, on the basis that in such a case he is not a persona designata but acts judicially as the Court of a District Magistrate. But that decision was not upon the footing that this Court would interfere under Section 115, Civil P.C.; that section was not referred to, or at any rate was not relied upon in the judgment though it had been put forward in the original petition. The basis of the decision is Section 107, Government of India Act of 1919. It is really not necessary that we should express any opinion as to whether we agree with the decision arrived at by Jack and Patterson, JJ., for, in any case that decision has already ceased to have any application at all and indeed has become obsolete, within the space of a few months, by reason of the coming into operation of the Government of India Act, 1935, by the provisions of Sub-section (2) of Section 224 of the Act. Sub-s. (1) is to all intents and purposes a reproduction of Section 107 of the previous Act, but Sub-section (2) of Section 224 is in these words:

Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision.

18. I would only add one comment in regard to the case which I have just mentioned, and it is this that although Section 148, Bengal Local Self Government Act, was touched upon, it seems to have been brushed aside and treated as if it were not material to the matters under consideration. It appears that the decision arrived at by Jack and Patterson, JJ. was solely upon the basis of the nebulous and rather questionable jurisdiction which this Court was supposed to have had by reason of Section 107 of the former Government of India Act. The decision was not based, in any sense, upon the provisions of Section 115, Civil P.C. The learned Judges came to the conclusion that the District Magistrate was functioning as a Court and they held that Court was subordinate to this Court in which case no doubt prima facie this Court could in a proper case exercise revisional jurisdiction, always provided that the conditions laid down in Section 115 of the Code were duly fulfilled. There is however Section 148, Bengal Local Self-Government Act, which is categorical and wide in its terms. It runs thus:

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.

19. We have no doubt whatever that the intention of the Legislature was to put an end to the incessant and interminable litigation which invariably ensued every time there was an election to some local body or other. On the face of it Section 148 ousts the jurisdiction of this and every other Court as regards decisions arrived at by the authority appointed under Section 138, Bengal Local Self-Government Act. In order to surmount the obstacle created by Section 148, Mr. Mallick was forced to resort to a somewhat casuistic argument on these lines. His attack has been made not really on the decision of the authority appointed under 01. (a) of Section 138, but upon something which is outside and indeed antecedent to the decision, namely the right of Mr. Garter to take upon himself the office of the authority designated in Rule 1-A of the Election Rules. In plain words what Mr. Mallick argued was that as Mr. Carter had no right whatever, no jurisdiction to entertain the application which was made to him, anything which he did is null and void, and this Court in the exercise of its revisional jurisdiction has power to say so despite the provisions of Section 148. That argument seems to us to be of such nicety and so subtle as not to be one which we ought to accept. The distinction, which Mr. Mallick sought to draw between the decision and the right to decide is, in our opinion, in the circumstances of this case, one which is without a difference. We take the view that the provisions of Section 148 are so wide and definite in their terms that the jurisdiction of this Court is excluded altogether. It is to be observed that there is a double emphasis in the words used 'every decision... shall be final'. Those words of themselves would be sufficient to exclude an appeal. Then there is this addition 'and it shall not be questioned in any Court'. In our view, those words have sufficient operative power to exclude proceedings in revision in addition to proceedings by way of an appeal.

20. There is one more matter to which I must refer. Another line of argument adopted by Mr. Mallick with a view to extricate himself from the difficulty created by the provisions of Section 148 amounted to an invitation to us to take the view that Mr. Carter had never been appointed an authority to adjudicate upon the matter set out in Section 18-B, Bengal Local Self. Government Act, itself. All that had taken place was that the Local Government in the exercise of the powers conferred by Section 138(a) had in B. 1-A designated the authority to decide disputes arising under the Rules with the exception of objections under Rr. 15 and 42. Put tersely, according to Mr. Mallick's contention, the position is this that the District Magistrate had no power to deal with any of the matters referred to in Section 18-B or to deal with matters in connection with Rr. 15 and 42. So really there was a link missing in the chain of events which lead to the bringing into operation of the provisions of Section 148. That contention put forward by Mr. Mallick with much dialectic skill receives support from the decision of Nasim Ali, J. in Mahendra Rahman Mia v. Kanti Chandra Basu : AIR1935Cal10 . The head-note of that case is as follows:

Rules l-A and 26-B framed by the Bengal Government under Section 138(a), Local Self-Government Act, read with Rr. 24 and 25, bar the jurisdiction of the Civil Court to try a question whether a particular person is a qualified voter or not and consequently whether his election as a member of the Local Board is void on the ground of his not being a qualified voter.

21. When deciding that matter, the learned Judge said at p. 840:

It is true that though the Local Government has obtained powers from the Legislature to determine the authority who is to decide all disputes relating to elections, it has not yet exercised that power to its fullest extent. The Local Government has not yet determined the authority by which disputes other than those arising under the rules framed (as for example corrupt practices) are to be decided. In fact, the Civil Court still continues to have jurisdiction to decide such disputes. This is clear from the fact that the Local Government has given authority to the Magistrate to decide only those disputes which arise under the election rules. It appears to me also that the decision which the Magistrate gives under Rule 26-B is a judicial decision and not simply an executive order passed by the returning officer in connection with the preparation of a register of voters.

22. With that expression of opinion we entirely agree. Nevertheless, the terms of Section 148 are so comprehensive and definite that we think that the jurisdiction of this Court is ousted, whether it can rightly be said that what we are concerned with is not a decision but a right to decide and whether or not we are concerned with the decision of an authority which has never been properly constituted, because the position is that Mr. Carter purported to act in his capacity as the Magistrate of the District of the 24-Parganas under the provisions of the Bengal Local Self-Government Act and the rules made under that Act.

23. Therefore, despite the view we take as to the illegality of Mr. Carter's action, we have come to the conclusion that we have no power to interfere in the matter. It is an unfortunate case and there seems to be a gap, if I may so put it, as regards the protective machinery available to this Court. If this matter had been one falling within the territorial jurisdiction of the original side of this Court, it might have been dealt with either under the specific provisions of Section 45, Specific Belief Act, or under the inherent powers of this Court in its original jurisdiction to issue prerogative writs. Unfortunately the matter is one which occurred outside the ordinary original jurisdiction of this Court. Therefore, in the absence of any express provisions for an appeal, it must be dealt with if at all, under the provisions of Section 115, Civil P.C. For the reasons which I have given, we are of opinion that section cannot be made applicable to the circumstances of this case in view of the provisions of Section 148. There is much in these rules and in the procedure laid down by the Local Government which seems to us to call for attention. There is the point raised by Mr. Mallick as regards the constitution of the authority. There are several other rules which seem to us to lead to confusion and it is hoped that the attention of the Local Government may be drawn to this matter. It is obviously undesirable too that the presiding officer should ever be the 'authority' to determine disputes of the kind referred to in Section 18-B. This Rule must be discharged with costs. Hearing fee one gold mohur.

Edgley, J.

24. I agree.

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