HAR SARUP Vs. GUR CHARAN DAS

JUDGEMENT

(1.) This was a suit instituted in the court of a Munsif for a declaration that a certain municipal election was invalid. The learned Munsif decided that he had no jurisdiction to entertain the suit. There was an appeal to the learned Additional District Judge of Meerut, who came to the conclusion that the Munsif had jurisdiction to try the suit and remanded the case to his court for trial on the merits. An appeal is preferred to this Court from the order of remand, and the contention of the learned Counsel for the appellant is that under Section 187 of the Municipalities Act, No. 1 of 1900, a previous publication of the rules finally made by the local Government is a condition precedent to the validity of such rules. His contention is that the draft of these rules was published in the local Gazette of these provinces on the 27th of February, 1909, and that in that draft a Rule No. 39 ran as follows :--"The validity of an election may be questioned by a petition to the District Magistrate on the ground, etc.," that when that rule was published in the official Gazette of these provinces on July the 30th, 1910, it assumed the following form:--" Rule 42, Clause 1. The validity of an election made in accordance with these rules shall not be questioned except by a petition presented to a competent court within fifteen days after the date on which the election was held by a person or persons enrolled," &c, and that as there was no second publication of the amended rule wherein the expression "District Magistrate" was replaced by the expression " competent court," the rules as published on July the 30th, 1910, are not validly published rules. The term "previous publication" has been defined in the General Clauses Act (Local), No. 1 of 1904, Section 23. The last Clause of that Section is in the following terms :-- "The publication in the Gazette of a rule or bye-law purporting to have been made in the exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made." This Section defines what is meant by "previous publication." In the case before us the draft rules were published in the official local Gazette of 27th February, 1909, and notice was given to the public that the rules would be taken into consideration by the local Government on or after the 15th of May, 1909, and in pursuance of that notice after considering all criticism the rules as already mentioned were published in the official Gazette of these provinces on the 30th of July, 1910, which gave the power of hearing the petitions questioning the validity of an election to a competent court. The publication, therefore, was a valid publication of the rules, and the rules published in the official Gazette of these provinces on the 30th of July, 1910, no doubt, have the force of law.

(2.) The second question is as to which court is a competent court within the meaning of Rule 42, published on the 30th of July, 1910. We have no doubt that the expression "competent court" within the meaning of that rule means a Civil Court of competent jurisdiction with reference to the valuation given by the petitioner on his petition.

(3.) The question of the validity of the election is purely a civil question and the words "District Magistrate" have been intentionally replaced by the words "competent court."