Patna High Court
Chaturbhuj Prasad vs Mouji Lal And Ors. on 26 August, 1952
Equivalent citations: AIR1953PAT211, AIR 1953 PATNA 211
JUDGMENT Das, J.
1. This suit originally instituted in the Court of the Subordinate Judge of Darbhanga, has been, brought up to this Court by an order of transfer passed by a Division Bench, The suit has been heard by me on two dates. None of the parties have adduced any evidence, but learned counsel for the parties have addressed me on certain questions of law arising out of the pleadings of the parties; therefore, the suit has been a legal battle on pure questions of law.
2. The plaintiff is one Chaturbhuj Prasad, a registered voter in the electoral roll of Ward No. 3 in the Samastipur Municipality within the district of Darbhanga. Fifteen persons, who were notified in the official gazette as having been duly elected as commissioners for the Samastipur Municipality on an election held on the 3rd and 4th of October, 1950, were originally made defendants in the action. Subsequently, the State of Bihar was added as a party defendant.
3. Put briefly, the case of the plaintiff is that the term of office of the present Municipal Board expired in May, 1950, and under the authority given to the Magistrate of the district by the Bihar Municipal Election Rules, 1943, the District Magistrate fixed 26-9-1950, as the date of the general election. No poll was, however, held on that date, and by another notification the District Magistrate fixed or extended, the date of election to 3rd and 4th of October, 1950. On those two dates a poll was taken and the first fifteen defendants were notified in the official gazette on 29-11-1950, as having been duly elected as commissioners of the Samastipur Municipality. The plaintiff pleads that the District Magistrate had no right to extend the date of election from 26-9-1950 to 3rd and 4th of October, 1950; therefore, the election held on the 3rd and 4th of October, 1950, was 'ab initio' void and without jurisdiction.
The plaintiff asks for the following main reliefs :
(1) The Court should declare that the first fifteen defendants are not duly elected commissioners of the new Board to be constituted for the Samastipur Municipality.
(2) The Court should further grant a perpetual injunction restraining the fifteen defendants from constituting the new Municipal Board or taking charge from the old Municipal Board or from exercising any power or function as Municipal Commissioners under the Bihar and Orissa Municipal Act.
I may note here, that the learned Subordinate Judge passed an interim order of injunction against these fifteen defendants, and on an appeal from that order, a Division Bench of this Court passed the order for transfer of the suit.
4. Some of the first fifteen defendants have filed a written statement. The State of Bihar has also filed a separate written statement. The main defence which is relevant at this stage is that the suit is barred by reason of Rules 3 and 4, Bihar Municipal Election Petitions Rules, 1941, and that the District Magistrate had the power and authority to fix a fresh date of election or even to extend the date originally fixed. It is stated that the reason for the extension in the present case was that officers who had been deputed to the muffassil to maintain peace in connection with the Bakrid festival could not come back in time to arrange for and take part in the election; therefore, the District Magistrate fixed a revised programme which was duly published in accordance with the Bihar Municipal Election Rules, 1943. Certain allegations of fact made by the plaintiff were denied; but as the contest between the parties has centred round questions of law only, I, do not think that it is necessary to relate them at this Stage.
5. On the aforesaid pleading's the following issues were settled by the learned Subordinate Judge:
1. Is the suit as framed maintainable?
2. Has the plaintiff got any cause of action or right to sue?
3. Is the suit barred under Section 3, Bihar Municipal Election Petitions Rules,
4. Was the extension of the date for general election from 26th September to 3rd and 4th October, 1951, by the District Magistrate illegal and without jurisdiction?
5. To what relief, if any, is the plaintiff entitled?
6. On the first date of hearing learned Counsel for the plaintiff filed an application before me for an amendment of the issues on the ground that after the filing of the suit on 1-3-1951, a new Act (Bihar Act 34 of 1951) has been passed which bars, 'inter alia', the jurisdiction of Courts in matters relating to the election of Municipal Commissioners, the legality of any action taken or of any decision given by any person in connection with the election, etc. Rule 12, Bihar Municipal Election Rules, 1943, was also amended on 20-4-1951, so as to give the Magistrate power, in express terms, to alter the date fixed by him. Learned Counsel for the plaintiff wished to raise an issue that these amendments, made during the pendency of the suit did not affect the rights of the plaintiff. The learned Government Pleader who has appeared for the defendants, has submitted that these amendments made in 1951, after the institution of the suit, will not be relied on by him, and he will be content to contest the suit on the basis of the law as it existed on the date of the suit. In this circumstance the amendment asked for was not pressed, and I did not consider it necessary to amend or recast the issues originally settled by the learned Subordinate Judge.
7. The two issues on which I have been addressed at length are issues 3 and 4. The decision on these two Issues will be decisive of the suit. I propose to take up issue No. 3 first, which goes to the root of the matter, viz., maintainability of the suit.
8. The contention of the learned Government Pleader is that the suit is barred by reason of rules 3 and 4, Bihar Municipal Election Petitions Rules, 1941, These rules were made by the Governor of Bihar in exercise of the powers conferred by Sub-sections (2) and (3) of Section 19, Bihar and Orissa Municipal Act, 1922. Rule 3 is in these terms : "No election shall be called in question except by an election petition presented in accordance with these rules." Rule 4 merely states that an election petition against any returned candidate may be presented to the Election Commissioner by any candidate or elector. 'Prima facie' Rule 3, quoted above, if it is a valid rule, will bar the jurisdiction of the civil Court to question the present election. The rule is put in the negative form and says in express terms that no election shall be called in question except by an election petition presented in accordance with the rules. Learned Counsel for the plaintiff has sought to get over the bar of Rule 3 in two ways : firstly, he has submitted that Rule 3 is invalid, ..... because it is not covered by Sub-section (2) or Sub-section (3) of Section 19, Bihar and Orissa Municipal Act, 1922. In order to appreciate the argument of learned Counsel for the plaintiff it is necessary to read Section 19, Bihar and Orissa Municipal Act, 1922. Section 19, so far as it is relevant for our purpose, reads as follows :
"19. For the purpose of election of commissioners, the State Government may, with respect to municipalities generally or to any municipality or class of municipalities in particular make such rules consistent with this Act, as it may think fit, to regulate and determine --
(1) .....
(2) the authority which shall decide disputes arising under any rules made under this section;
(3) any other matter relating to elections in respect of which this Act makes no provision or insufficient provision, and provision is, in the opinion of the State Government, necessary."
There has been some argument before me as to whether Sub-section (3) of Section 19, is bad by reason of what is called delegated legislation; to that aspect of the case I shall .....
return later. The learned Government Pleader has been content to support Rule 3, Bihar Municipal Election Petitions Rules, 1941, on the authority of Sub-section (2) of Section 19.
I shall, therefore, discuss first the meaning and effect of Sub-section (2) of Section 19. But before I do so, I may refer to the second submission of learned Counsel for the plaintiff, on the basis of which he has tried to get over the bar of Rule 3, Bihar Municipal Election Petitions Rules, 1941. His second submission is that Sub-section (2) of Section 19, if it is construed to mean that it allows the making of rules so as to entitle the executive to oust the jurisdiction of the civil Court, is invalid on the ground of delegated legislation : he contends that the constitution or jurisdiction of Courts is a matter of legislation, and the legislature must legislate itself on the subject; it cannot delegate to the executive the power to constitute Courts or to oust the jurisdiction of existing Courts. It would appear from what I have stated above that the first submission of Learned Counsel for the plaintiff is really a submission on the construction of Sub-section (2) of Section 19, and the construction which learned Counsel for the plaintiff canvasses for is that in its true meaning and effect Sub-section (2) of Section 19, does not authorise the State Government to make a rule ousting the jurisdiction of the civil Court. His contention is that a party can go either to the civil Court or to the Election Commissioner. His second submission is somewhat more radical. He challenges the validity of Sub-section (2) of section 19, Bihar and Orissa Municipal Act, 1922, on the ground that it amounts to delegated legislation.
9. In my opinion, none of the two submissions made by learned Counsel for the plaintiff are worthy of acceptance. On the question of pure construction, it seems manifestly clear to me that Section 19, Sub-section (2), Bihar and Orissa Municipal Act, 1922, uses words of sufficient amplitude which taken in their ordinary grammatical sense give power to the State Government to make rules regulating and determining the authority which shall decide disputes arising under any rules made under this section. If the State Government can determine the authority which shall decide disputes arising under any rules made under the section, it can surely lay down that the authority shall be an exclusive authority; for the State Government can both determine and regulate the authority.
If exclusion of the jurisdiction of the civil Court is not expressly stated in Sub-section (2) of Section 19, such exclusion follows by necessary implication. I do not think that as a matter of pure construction, Section 19(2) can be construed to mean that there will be two authorities -- the civil Court and the Election Commissioner -- to determine disputes arising under the rules made under the section, with the attendant danger of conflicting orders and decisions. Learned Counsel for the plaintiff has drawn my attention to the difference in wording between Section 138, Clause (a), Bihar and Orissa Local Self-Government Act, 1885, and Sub-section (2) of Section 19, Bihar and Orissa Municipal Act, 1922. The former allows the State Government to make rules, 'inter alia', for regulating all elections under the Act and determining the authority who shall decide 'disputes relating to such elections'; whereas Sub-section (2) of Section 19 merely authorises the making of rules for determining and regulating the authority which shall decide disputes 'arising under any rules made under the section. I have underlined the words (here in ' ') in the two sections to bring out the difference more clearly. I agree that Sub-section (2) of Section 19, Bihar and Orissa Municipal Act, is somewhat narrower in scope than Section 138(a) Local Self-Government Act.
One of the contentions of learned Counsel for the plaintiff is that the State Government forgot this difference when making the Bihar Municipal Election Petition Rules, 1941, and therefore, they made Rule 3 in excess of the power given by Sub-section (2) of Section 19, Bihar and Orissa Municipal Act. I am unable to accept this contention. It may be that the scope of Sub-section (2) of Section 19, is narrower than the scope of Clause (a) of Section 138, Local Self Government Act; it may even be that the scope of Sub-section (2) of Section 19, was advisedly made narrower, be-
cause it is followed by Sub-section (3) of Section 19, which is in very wide terms.
I do not, however, think that it is necessary to call in aid Sub-section (3) of Section 19, in support of Rule 3, Bihar Municipal Election Petitions Rules, 1941, It is unnecessary, therefore, to consider whether Sub-section (3) of Section 19, widely expressed as it is, is bad on the) ground ,of delegated legislation. I am confining myself to Sub-section (2) of Section 19.
In my opinion, that sub-section is sufficient to support Rule 3, Bihar Municipal Election Petitions Rules, 1941, even though the wording of Sub-section (2) of Section 19 is somewhat different from and narrower in scope than Clause (a) of Section 138, Local Self-Government Act. If the State Government has the power to determine the authority which shall decide disputes arising under any rules made under the section, it surely has power to say that the authority shall be an exclusive authority to decide such disputes. In my opinion, nothing turns upon the difference in wording between Clause (a) of Section 138, Local Self Government Act, and Sub-section (2) of Section 19, Municipal Act, so far as the present case is concerned.
The dispute in the present case, as I shall presently show, relates to the interpretation of Rule 12, Bihar Municipal Election Rules, 1943. That is also a rule made under Section 19, because Sub-section (1) of Section 19, as amended in 1936 (Bihar Act 4 of 1936), authorised the State Government to make rules to regulate and determine the dates, times and mode of holding elections. Therefore, the dispute in the present case is a dispute arising under a rule made under Section 19. It was open to the State Government to make a rule saying that such a dispute shall be decided by the Election Commissioner alone. It is unnecessary to consider in this case any wider implication of Rule 3, Bihar Municipal Election Petitions Rules, 1941. The present dispute is a dispute arising under the rules made under Section 19. Rule 50, Bihar Municipal Election Rules, 1943, states that all disputes arising under those rules shall be decided by the Magistrate and his decision shall be final. Rule 3, Bihar Municipal Election Petitions Rules, 1941, states that no election shall be called in question except in a particular manner, which excludes the jurisdiction of the civil Court.
The word "election" in the Bihar Municipal Election Petitions Rules, 1941, has, perhaps, a wider meaning than a mere dispute arising under the rules. The present case, however, is a pure dispute arising under Rule 12, Bihar Municipal Election Rules, 1943. Therefore, whether we look at the case from the point of view of Rule 50, Bihar Municipal Election Rules, 1943, or Rule 3, Bihar Municipal Election Petitions Rules, 1941 the dispute can be decided only by the authority set up under those rules and the civil Court has no jurisdiction. In my opinion. Rule 50, Bihar Municipal Election Rules, 1943 is a valid rule under Section 19; so also, Rule 3, Bihar Municipal Election Petitions Rules, 1941, in at least so far as the election turns on a dispute arising under the rules made under Section 19. In its wider aspect, Rule 3, Bihar Municipal Election Petitions Rules, 1941, may be supported under Sub-section (3) of Section 19, and I doubt whether Sub-section (3) of Section 19 can be said to be bad on the ground of delegated legislation; but as I have already said, it is unnecessary to go to Sub-section (3) of Section 19 in the present case.
10. Learned Counsel for the plaintiff has relied on certain decisions in support of his contention that unless there are express words in the statute, or it follows by necessary implication from the words used in the statute, this Court should not infer that the jurisdiction of the civil Court is ousted. He has relied on the decision in --'Secy. of State v. Mask & Co.', AIR 1940 P. C. 105(A), where Lord Thankerton observed :
"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
It is to be noted that their Lordships were considering in that case the effect of certain provisions of the Sea Customs Act, 1878. On a construction of the relevant provisions of the Act, their Lordships came to the conclusion that the jurisdiction of the civil Courts was excluded; they made it clear that the determination of the question must rest on the terms of the particular statute, and decisions on other statutory provisions were not of material assistance except in so far as general principles of constructions were laid down. Lord Thankerton quoted with approval the observations of Willes, J. in --'Wolverhampton New Water-works Co. v. Hawkesford', (1859) 6 C. B. (N. S.) 336 at p. 356(B), which were approved of in --'the House of Lords in Neville v. London "Express' Newspaper" Ltd.', (1919) A. C. 368(C). The observations were to the following effect :
"Where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it ............
With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute."
The same principle was again affirmed in -- 'Raleigh Investment Co. Ltd. v. Governor-General in Council', AIR 1947 P. C. 78(D). In --'Bhaishankar Nanabhai v. The Municipal Corporation of Bombay', 31 Bom 604(E), which was a case relating to Section 33, City of Bombay Municipal Act, 1888, the question arose whether under Section 33 the Chief Judge had jurisdiction to determine the validity of a contested election. It was observed in that decision :
"But 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....."
These observations were quoted with approval in --'Lachmi Chand Suchanti v. Ram Pratap Choudhry', AIR 1934 Pat 670 (2) (F.B.) (F), which was a case relating to an election under the Local Self Government Act, 1885. It was pointed out there that the intention of the legislature was that an election tribunal should be set up by the State Government for deciding all disputes relating to elections. Where, however, the right and liability had been created by the statute, by which the legislature had left to another authority the appointment of a tribunal to try such liability and the framing of the procedure under which the tribunal so to be appointed was to carry out its duties, but the tribunal so contemplated by the legislature had never been brought into existence, the subject had the right to proceed in the ordinary civil Courts unless and until the legislature carried out its duty of appointing a special tribunal.
The same view was again expressed in -- 'Abdul Razak v. Kuldip Narain', AIR 1944 Pat 147(G). In the case before us, the State Government has made rules determining the authority which shall decide disputes arising under any of the rules made under Section 19. A defeated candidate, or an elector contesting the election of a successful candidate, must, in my opinion, have recourse to that authority which alone has exclusive jurisdiction to determine the dispute.
11. The second submission of learned Counsel for the plaintiff can, I think, be disposed of very shortly. There is, in my opinion, no delegation of legislative power by Sub-section (2) of Section 19, Bihar and Orissa Municipal Act, 1922. The question of delegated legislation has been the subject-matter of many recent decisions. It is unnecessary to refer to those decisions in detail, because of the latest pronouncement of their Lordships of the Supreme Court of India in 'In re. Article 143, Constitution of India and Delhi Laws Act (1912) etc.', AIR 1951 S. C. 332(H), where the case law on the subject has been exhaustively examined. I do not think it can be said that by Sub-section (2) of Section 19, Bihar and Orissa Municipal Act, 1922, the legislature has effaced itself or has virtually abdicated its powers of legislation. The legislature has declared the policy, namely, that an authority may be set up for deciding disputes arising under the rules made under Section 19, which rules may relate to the dates, times and mode of holding elections. The actual setting up of the authority, the designation of the authority, the procedure it should follow, -- these are matters which have been left to the rule-making authority. I think that numerous examples of such delegation will be found in the Indian statute book. The true test is whether there has been abdication or effacement of an essential legislative function. In my opinion, there has been no such effacement or abdication by Sub-section (2) of Section 19, Bihar and Orissa Municipal Act, 1922. Learned Counsel for the plaintiff has referred me to the decision in --'Rule R.W. Paul, Ltd. v. Wheat Commission', (1937) A. C. 139(1).
In that case the question was whether a I bye-law under the Wheat Act, 1932, was 'ultra vires' or not. That bye-law, it appears, set up a special arbitration tribunal to which the Arbitration Act, 1889, was not to apply. It was held that the bye-law was 'ultra vires' and invalid, as there was no express power in the Wheat Act to oust the jurisdiction of the Courts but only a power to make bye-laws. The decision relied on by learned Counsel for the plaintiff is not really a decision on delegated legislation; it is a decision on the construction of the particular words used in the Wheat Act, 1932. That decision does not, therefore, take the case of the plaintiff any further; because I have already held, on a construction of Sub-section (2) of Section 19, that it authorises the State Government to make a rule setting up an exclusive authority to decide disputes arising under the rules made under Section 19, of the Act.
12. For the reasons given above, I decide issue No. 3 against the plaintiff and hold that the suit is not maintainable.
13. My finding on issue No. 3 is really decisive of the suit. I must, however, give my finding on issue No. 4 as well. The necessary facts which have not been seriously disputed before me, bearing on issue No. 4, are these. It is not disputed that by virtue of the authority given to him under Rule 12, Bihar Municipal Election Rules, 1943, the District Magistrate fixed the date of general election for the Samastipur Municipality to be 26-9-1950. It is also not disputed that this date was notified in the Bihar Gazette and communicated to the Chairman, as required by Sub-rule (2) of Rule 12, Bihar Municipal Election Rules, 1943. On 21-9-1950, the District Magistrate made another notification fixing 3-10-1950, as the date of election. This notification was published in the Bihar Gazette dated 27-9-1950. On 1-10-1950, another notification was made which fixed 3-10-1950, as the date of election for some Wards and 3rd and 4th October, 1950, as the dates of election for certain other Wards of the Samastipur Municipality. This notification of 1-10-1950, was published in an Extraordinary issue of the Bihar Gazette on 2-10-1950.
On behalf of the defendants it has been stated that these notifications were duly communicated to the Chairman under Sub-rule (2) of Rule 12, Bihar Municipal Election Rules 1943. Those rules contemplate that certain steps should be taken with reference to the date of election fixed by the Magistrate under Rule 12. It has not been seriously contended before me that any of those steps were not taken within the time allowed by the rules. The contention of learned Counsel for the plaintiff is twofold : firstly, his contention is that once having fixed the date of election as 26-9-1950, it was not open to the District Magistrate to alter the date; his second contention is that if the District Magistrate altered the date or fixed another date for election, then all the preliminary steps which had to be taken under the rules for holding an election should have been taken afresh. Many preliminary steps have to be taken as soon as the date of election is fixed; for example, an electoral roll has to be prepared, and the person who is to prepare the electoral roll shall make, sign and deliver it to the Chairman not less than 120 days before the date fixed for the general election; the draft roll has then to be published and claims and objections have to be heard; the final electoral roll made and revised under the rules has to be posted up at the Municipal Office and at certain other places at least twenty days before the date fixed for the election; then a notice of the particulars of election has to be made; this is followed by a delivery of nomination papers and publication of such papers; scrutiny of the nomination papers, etc. Rules 33 and 35 deal with the actual holding of an election, namely, the taking of a poll.
An examination of the rules shows that the date of election mentioned in Rule 12 is really the date of the poll. The Municipal Election Rules, 1943, do not, however, contain any provision for an adjournment of the poll. Learned Counsel for the plaintiff has drawn my attention to the relevant provisions in the Representation of the People Act, 1951, which contain provisions for an adjournment of the poll in certain emergent circumstances (vide Section 57). He has drawn my attention to certain observations in Parker's Election Agent and Returning Officer, 4th Edition, at page 338 where it is stated as follows :
"For the purpose of the adjournment of the poll, a presiding officer has all the power by law belonging to a deputy returning officer (B.A.S. 10); therefore where the proceedings at any polling station are interrupted or obstructed by any riot or open violence, the returning or presiding officer shall not, for such cause, finally close the poll, but shall adjourn the poll at such station until the following day, and, if necessary, shall further adjourn the same until such interruption or obstruction shall have ceased."
His contention is that in the absence of any provision for an adjournment of the poll in the Bihar Municipal Election Rules, 1943, it was not open to the District Magistrate to alter the date of election after he had once fixed it. It is pointed out that if the District Magistrate can alter the date of election according to his sweet will, then all sorts of abuses may creep in; it is suggested that the District Magistrate may submit to the dictates of the political party in power and change the date of election to suit the convenience of that party. I think that in a case of this nature the distinction between the existence of a power and the exercise of that power must be kept in mind. If the District Magistrate acts 'mala fide', the position may be different. But the question before me is if the District Magistrate has the power to change the date of an election under Rule 12, provided he is acting 'bona fide'. There can be no doubt that in the present case the District Magistrate was acting 'bona fide', because the reason given for the change was that officers who had gone on Bakrid duty could not come back in time to assist in the holding of the election.
14. Therefore, the pure question of law which I have to consider in this case is whether under Rule 12, Bihar Municipal Election Rules, 1943, the District Magistrate had the power to alter the date originally fixed, or to fix a fresh date. It seems to me impossible to accept the contention of learned Counsel for the plaintiff that the District Magistrate becomes completely 'functus officio' after he has once fixed the date of election. To interpret Rule 12 in that way will mean that if for any reason, beyond the control of the District Magistrate, the poll cannot be held on the date fixed for election, then no election can at all be held in future; because the District Magistrate cannot fix another date. This will lead to an absurd result and defeat the very purpose of the Bihar and Orissa Municipal Act and the rules made thereunder. When learned Counsel for the plaintiff was confronted with this position, he conceded that it was open to the District Magistrate to fix a fresh date of election, though he had no power to extend the date of election originally fixed. Learned Counsel drew a distinction between fixing a fresh date of election and extending the original date. The distinction was based on the ground that in a case where a fresh date of election is fixed, all the preliminary steps to which I have already made a reference have to be taken again, whereas in the case of the extension of a date no such process is necessary.
The argument of learned Counsel for the plaintiff is that the fixing of a fresh date is permissible, provided all the preliminary steps are taken again. Learned Counsel has relied on an unreported decision of a single Judge of this Court in --'Municipal Commissioners of the Jamalpur Municipality v. Babu Ajodheya Prasad', Civil Revn. No. 510 of 1950, D/-15-1-1951 (J). In that case the District Magistrate first fixed the 15th, 17th and 18th of April, 1950, as the dates of election; but if the election were to take place on those dates, it would have been within ninety days from the publication of the draft electoral roll and would have contravened Rule 14, Bihar Municipal Election Rules; therefore, the District Magistrate published a fresh notification fixing 18th, 19th and 20th May, 1950, for election. It was pointed out that even the new dates would be within 120 days from the delivery of the electoral roll and would thus contravene Rule 13(3) of the Election Rules. In these circumstances, it was observed that Rule 12, by its plain terms, could not be construed to give the District Magistrate power to extend the date already fixed. The case was, however, decided on a different ground altogether, namely, on the ground that even if the District Judge misconstrued the meaning of the rules, the error committed by him was an error of law which did not affect his jurisdiction. The application in revision being an application under Section 115, Civil P.C., was dismissed on that ground. I do not think that the decision in 'Civil Revn. No. 510 of 1950 (Pat) (J)' can be taken as an authority in support of the contention of learned Counsel for the plaintiff. It is not contended that in the present case the preliminary steps taken for the holding of the election which was originally fixed for 26-9-1950, were not taken within time; nor is it contended that the new dates, 3rd and 4th October, 1950, made invalid any of the preliminary steps already taken.
The learned Government Pleader has referred to Ss. 16 and 24, Bihar and Orissa General Clauses Act, 1917, and has contended that the power to fix a date for election given to the District Magistrate under Rule 12 includes the power to vary or extend the date. He has relied on a Calcutta decision in -- 'Bhuban Mohan v. Chairman, Dacca Municipality', AIR 1927 Cal 704 (K). In that case Graham, J. was dealing with certain Municipal Election Rules made under the Bengal Municipal Act, 1884. He expressed the view that the Commissioner had power to postpone the election and said that under Section 22, Bengal General Clauses Act, the power to fix a date for election must be taken to include the power to postpone any date so fixed. In that case also there was an argument to the effect that if the changed date was a date fixed for a new election, then all the necessary formalities should have been complied with over again. His Lordship repelled this contention on the ground that the new date fixed was a mere postponement or adjournment of the poll and did not amount to a fresh or new election. Mukerji, J. agreed with the conclusions of Graham, J. but did not deal with the point in question. In my opinion, neither Section 16, nor Section 24, Bihar and Orissa General Clauses Act, 1917, in terms apply to the present case. Those sections deal with a power conferred by a Bihar and Orissa Act. The expression "Bihar and Orissa Act" is defined in the General Clauses Act, and that definition does not include rules made under the Act.
The learned Government Pleader has, however, referred me to certain observations made in -- 'Saligram Singh v. Emperor', AIR 1945 Pat 69 (L). The observations were made in connection with the question whether Rule 130A, Defence of India Rules, was 'ultra vires' on the ground that it repealed by implication certain provisions of the Criminal P.C. His Lordship, Meredith, J. (as he then was), met the argument by the following observations: "The answer is that statutory rules if validly made within the powers conferred by the Act must be regarded as part of the Act itself and made with the full authority of the Legislature. The statutory rules must be held to be a part of the present Act, and can do anything it can do if within its scope." I do not think that those observations can be held to decide the meaning to be given to Ss. 16 and 24, Bihar and Orissa General Clauses Act, 1917. Even though those sections of the General. Clauses Act do not, in terms, apply to the interpretation of the rules made under the Bihar and Orissa Municipal Act, 1922, I do not see why the principle embodied in those sections should not apply. The principle is that when an authority has power to make a notification that power necessarily includes the power to amend or vary the notification; otherwise, it may be impossible to exercise the power properly if and when the occasion arises for the exercise of the power. My conclusion, therefore, is that the District Magistrate had the power to alter the date of election and such alteration did not necessarily involve the taking of fresh preliminary steps, I have already said that if the District Magistrate alters the date 'mala fide', the position may be different, and the authority competent to decide the dispute may strike down such alteration as bad and unauthorised.
15. I would accordingly decide issue No. 4 also against the plaintiff.
16. The other issues can be disposed of in a few words. Issue No. 1 is more or less the same as issue No. 3. Issue No. 2 must also be answered against the plaintiff. It is obvious that the plaintiff is not entitled to any relief in the present suit.
17. The result, therefore, is that the suit is dismissed with costs. I would assess the hearing fee at Rs. 300/- only.