Skip to content


Abala Kanta Ghose and ors. Vs. Syed JalaluddIn Hashemy - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Judge
Reported inAIR1937Cal487,174Ind.Cas.501
AppellantAbala Kanta Ghose and ors.
RespondentSyed JalaluddIn Hashemy
Cases Referred and Chandra Kishore Mondal v. Shasindra Kumar Roy Chowdhury
Excerpt:
bengal local self-government act (iii of 1885), sections 18-b, 138(a) - election rules under section 138(a)--rule 1(a)--rules, whether contemplate all disputes arising out of election--jurisdiction of civil court is not barred where dispute does not fall under them. - .....to entertain the suit, holding that under rule 1(a) of the election rules framed by the local government, the magistrate of the district has been constituted the exclusive authority by whom these disputes are to be decided. the lower appellate court, on the other hand, is of opinion that the matter comes under section 18-b, local self-government act, and as no election tribunal has yet been set up by the local government, the jurisdiction of civil courts to hear and determine such matters still remains intact. the whole point in this appeal is, as to which of the two views is correct? now section 138, local self-government act, lays down that:it shall be lawful for the local government to make rules consistent with this act for any district board or local board, for the.....
Judgment:

B.K. Mukherjea, J.

1. This appeal which is on behalf of the defendants is directed against an order of remand passed by the District Judge, Khulna, on July 9 1936. The trial Court dismissed the plaintiff's suit on a preliminary point holding that the Civil Court had no jurisdiction to try the suit. The lower Appellate Court reversed the decision and sent the case back for rehearing on merits. The order of remand has been attacked by Mr. Basu who appears for the appellants in this case on the ground that the decision of the trial Judge was right, and the suit being not triable by a Civil Court at all, the order of remand is erroneous. In order to appreciate this Contention, the following short facts would be material:

The plaintiff was a candidate for a membership of the Satkhira Local Board, and in response to the notice issued under Rule 29 of the Election Rules, he sent in his name to the Magistrate, filling up all the particulars in the nomination form. The Sub-Divisional Officer, Satkhira, held a scrutiny of the nomination papers, submitted by all the candidates, an d he rejected the plaintiff's nomination paper on the grounds inter alia that his signature did not tally with his name in the voter's list, and that certain letters in the nomination paper seemed to be over-written but were not properly initialled. The result of the rejection of the plaintiff's nomination paper was that the defendants who were the rival candidates were returned unopposed. The plaintiff accordingly instituted this suit for a declaration that the order passed by the Sub-Divisional Officer, Satkhira, refusing to register the plaintiff as a candidate for election to the Local Board was illegal and ultra vires, and that the election of the defendants as members of the said Local Board was void. There was also a prayer for permanent injunction restraining the defendants from exercising their functions as members of the Local Board.

2. The trial Court, as I have said already dismissed the plaintiff's suit on the preliminary ground that the Civil Court had no jurisdiction to entertain the suit, holding that under Rule 1(a) of the Election Rules framed by the Local Government, the Magistrate of the District has been constituted the exclusive authority by whom these disputes are to be decided. The lower Appellate Court, on the other hand, is of opinion that the matter comes under Section 18-B, Local Self-Government Act, and as no election tribunal has yet been set up by the Local Government, the jurisdiction of Civil Courts to hear and determine such matters still remains intact. The whole point in this appeal is, as to which of the two views is correct? Now Section 138, Local Self-Government Act, lays down that:

It shall be lawful for the Local Government to make rules consistent With this Act for any District Board or Local Board, for the purpose of (a) determining the mode and time of appointment or election of members of Boards and Committees the terms of office and the registration of voters and candidates, and generally for regulating all elections under this Act, and determining the authority who shall decide disputes relating to such elections.

3. The words are permissive, they do no more than confer an authority on the Local Government to determine by rules, as to what the authority would be, who shall decide disputes relating to election. If such authority is constituted, then under Section 148, Local Self-Government Act, the decision of such authority would be final and could not be questioned in any other Court. This section follows the well-known principle that when a special tribunal is created by a statute for investigating the rights and liabilities which are created by the statute itself, the jurisdiction of such Court is exclusive, and cannot be exercised concurrently by any other Court. If, however, no such tribunal is constituted, the ordinary jurisdiction of Civil Courts cannot be ousted. The Local Government indeed has framed certain rules under Section 138(a), Local Self-Government Act, and has laid down in Rule 1(a) that:

All disputes arising under these rules other than objections under Rules 15 and 42 shall be decided by the Magistrate of the District and his decision shall be final.

4. The plain words of the rule can bear no other interpretation than this, that all disputes relating to elections, so far as they arise out of the rules themselves, must, with certain exceptions, be decided by the Magistrate of the District who is thus constituted the exclusive authority so far as these disputes are concerned, and his decision must be regarded as final. It seems that the Local Government has not yet set up an election tribunal in the proper sense, which would decide all disputes arising out of election, particularly where election is impeached on grounds of bribery and corruption. To this extent the jurisdiction of Civil Courts cannot be said to be ousted: Mahendra Rahman Mia v. Kanti Chandra Basu : AIR1935Cal10 . But in so far as the disputes come within the purview of the rules, and barring the exceptions provided for in the rules themselves, the jurisdiction of Civil Courts no longer exists. Mr. Abdul Hussain who appears for the respondent has not contended before me that the Magistrate of the District has not exclusive jurisdiction in election disputes, so far as the disputes come within the rules, nor has he contended that Rule 1(a) is ultra vires of the Act. His arguments are of a twofold character. He argues first of all that the present dispute is wholly outside the rules, and secondly, that the Sub-Divisonal Officer is not the Magistrate of the District as contemplated by the rule. Now if we look to the rules themselves, we find that Rule 29 lays down that:

Every person who is a candidate for election shall send his name to the Magistrate of the District with the necessary particulars filled up in the following form supported by the signatures or thumb impressions of ten electors whose names appear on the register of votes, together with the duly receipted treasury chalan. No names of candidates shall be received after the expiration of such period and no nomination shall be held valid unless the nomination form is properly filled in.

5. Rule 30 then provides for the scrutiny of the nomination paper of the candidates and for rejection of unqualified candidates:

On the date so fixed for scrutiny--so runs the rule--he shall ascertain whether all of the nominated candidates are duly qualified to take office; his decision on the point shall be final.

6. Mr. Abdul Hussain contends that the only question which the Magistrate has got to decide under Rule 30 is as to whether the candidate is qualified or not, that is to say, whether he has the requisite qualification to stand as a candidate, and the use of the word 'nominated' presupposes that the nomination was proper. It is not within the competence of the Magistrate, he says, to reject a nomination paper under Rule 30 on grounds of defect of signature; and so forth. Assuming that the argument is sound, I do not think that it can assist Mr. Abdul Hussain's client, for if the rejection of nomination papers does not come within Rule 30 it must come within the last-clause of Rule 29 which says that 'no nomination paper shall be held valid unless the nomination form is properly filled in.' Any way it, would be within the rules and under Rule 1(a) the proper authority to decide the disputes would be the Magistrate of the District. The other contention of Mr. Abdul Hussain is also not tenable. Section 5, Local Self-Government Act, makes it clear that the Sub-Divisional Officer could be a Magistrate of the District for purposes of the rules, but even if he was not, the remedy of the plaintiff would be to approach the Magistrate of the District whoever be may be for redress of his grievances. He cannot come to the Civil Court.

7. The learned District Judge has based his decision upon Section 18-B, Local Self-Government Act, and he relies upon a Full Bench decision of the Patna High Court, viz., Lachmi Chand v. Ram Protap 14 Pat. 24 : 152 Ind. Cas. 805 : A.I.R. 1934 Pat. 670 : 15 P.L.T. 623 : 7 R.P. 217 (F.B.), to hold that the election tribunal which Section 18-B contemplates has not yet come into being. I do not think that this is the correct view to take. The present case hardly comes within the terms of Section 18-B; Sub-section (c) of that section apparently contemplates a case where a plaintiff seeks to set aside an election on the ground that there was some defect in the nomination paper which materially affected the election. As I have stated already, it is perfectly true that a tribunal to decide all election disputes including corrupt practice and other things which are provided for in Section 18-B has not yet been constituted. The Local Government has only constituted a tribunal with regard to certain kinds of disputes which are dealt with in the rules, and as the present dispute is included within the rules, there is a tribunal provided for it, even though it may be deemed to be included in Section 18-B, Clause (c), Local Self-Government Act. The decision of the Patna High Court in Lachmi Chand v. Ram Protap 14 Pat. 24 : 152 Ind. Cas. 805 : A.I.R. 1934 Pat. 670 : 15 P.L.T. 623 : 7 R.P. 217 (F.B.), is no doubt a strong argument in favour of the respondent, though the facts of the case were rather different. In that case the plaintiff sued for a declaration that the election of the defendants was invalid, as the Returning Officer had improperly rejected certain ballot papers which he ought to have accepted, and that if these papers had been counted, he would have been returned as a successful candidate. The Court held that the Civil Court had jurisdiction to entertain the suit. Section 138, Bihar and Orissa Local Self-Government Act, corresponds to Section 138, Bengal Act, and the Local Government there had framed certain rules under Section 138(a) of which Rule 68 runs as follows:

All disputes arising under these rules in regard to any matter other than a matter the decision of which by any other authority is declared by these rules to be final, shall be decided by the District Magistrate whose decision shall be final.

8. Under Rule 58 the decision of the Returning Officer as to the validity of the ballot paper was final and consequently toe decision maybe justified on the ground, that under Rule 68 the District Magistrate was not constituted the proper authority to decide such disputes. The observations of the learned Judges, however, went to the length of saying that Rule 68 does not really on flow the Magistrate with the authority that is contemplated by Section 138 (a), Local Self-Government Act. Whatever may be said about Rule 68 of the Bihar and Orissa Government, with regard to Rule 1(a) of the Bengal Government rules, it has been uniformly held in this Court that the rule has set up an authority to decide election disputes of certain kind: vide Mahendra Rahman Mia v. Kanti Chandra Basu : AIR1935Cal10 , Kasiruddin Talukdar v. Mafizuddin Ahmad : AIR1936Cal295 , and Chandra Kishore Mondal v. Shasindra Kumar Roy Chowdhury : AIR1937Cal174 ; and agreeing with the views taken in these cases, I hold that the decision of the Court of Appeal below is wrong and cannot be sustained. The result is that the appeal is allowed, the judgment and decree of the lower Appellate Court is set aside and that of the trial Court restored. Having regard to the fact that the plaintiff has an undoubted grievance, I direct that the parties should bear their own costs in all the Courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //