JOTI PRASAD UPADHIYA Vs. AMBA PRASAD

JUDGEMENT

(1.) The question of law that arises in the present appeal is whether a civil Court has jurisdiction to try a suit challenging the validity of the election of a chairman of a District Board. Such a suit is undoubtedly a suit of a civil nature and, unless the jurisdiction of the civil Court to try a suit is expressly or impliedly barred by any provision of law, the suit is, in view of the provisions of Section 9, Civil P.C., triable by the civil Court. It is admitted that the jurisdiction of the civil Court is not expressly barred by any enactment having the force of law, but it is contended on behalf of the defendant-respondent that Section 35(3), District Boards Act (Act 10 of 1922) passed by the local legislature impliedly bars the cognizance of such a suit by a civil Court. If this contention is well founded, this appeal must fail and the decision of the lower appellate Court dismissing the suit brought by the plaintiff-appellant must stand. Otherwise we shall have to decide the further question whether the lower appellate was right in rejecting an application for amendment of the plaint filed by the plaintiff appellant in that Court, in circumstances hereinafter specified. The suit giving rise to the present appeal was for a declaration that the election of Rai Bahadur Munshi Amba Prasad, defendant- respondent, as chairman of the District Board of Agra on 8 January 1932, was "void and illegal and ineffectual," and for a permanent injunction restraining him from acting as chairman of the Board. The facts that led to the election of the defendant are all admitted, and are as follows:

(2.) The District Board of Agra consists of 28 elected and 2 nominated members. The Local Government fixed 5 December 1931, for the "general election" of the non-Muslim members for all the constituencies of the District Board, and 7th December 1931, for the election of the Muslim members of the Board, in exercise of the powers vested in it by Section 26-A, District Boards Act. The Local Government also fixed 8 January 1932, as the date for the election of a chairman of the Board, in pursuance of the provisions of Section 35-A (1) of the Act. Elections did take place in all the constituencies on 5 December 1931, except in Iradatnagar constituency. In that constituency, on account of a breach of the peace, the returning officer had to stop the poll when the voting was in progress. There were two candidates in that constituency, viz., the plaintiff- appellant and a gentleman named Mawasi Lal. Mawasi Lal had, up to the time of the closing of the poll, secured more votes than the plaintiff-appellant. The Muslim members of the Board were also elected by all the constituencies on 7 December 1931. In accordance with the election rules the returns of the general election in all the constituencies including Iradatnagar were forwarded to the Local Government. The result of the elections of all the constituencies except Iradatnagar was published by the Government in the Government Gazette. As regards Iradatnagar, the Local Government directed that a fresh election be held. Accordingly, fresh nominations were invited for that constituency and an election was held on 27 January 1932. In that election the plaintiff-appellant was elected and the fact was notified in the Government Gazette.

(3.) In the meantime the Board met on 8 January 1932, to elect a chairman. There were two candidates, viz., (1) Rai Bahadur Munshi Amba Prasad, defendant- respondent, and (2) Raja Bahadur Kushalpal Singh. The total strength of the Board on 8 January 1932, was of 27 elected members and 2 nominated members. Out of the 29 members 28 were present at the meeting and Rai Bahadur Munshi Amba Prasad secured 16 votes and the Raja Bahadur got only 12 votes. The result was that Rai Bahadur Amba Prasad was elected chairman by a majority of four votes. As no non-Muslim member for the Iradatnagar constituency had been elected up to 8 January 1932, no non-Muslim member representing that constituency took part in the election of the chairman. The plaintiff's case was that the Local Government had no power to fix a date for the election of a chairman prior to the election of the members by all the constituencies, and that as in consequence of an election of a chairman on 8 January 1932, before the election in the Iradatnagar constituency had taken place, he was deprived of is legal right to participate in the election of the chairman, the meeting of the Board that took place on 8 January 1932, was illegal and "ultra vires" and the election of the defendant as chairman was void and illegal. The suit was filed on 10th February 1932. The defendant-respondent contested the suit inter alia on the ground that the civil Court had no jurisdiction to try the suit and that, in accordance with the provisions of Section 35(3), District Boards Act, the question of the validity or otherwise of his election as chairman could only be taken cognizance of by a tribunal appointed by the Local Government for the purpose of deciding that question. Section 35(3) runs as follows: When there is a question whether the chairman of a Board has been duly elected or nominated under Sub-section (2) the Local Government shall refer it for final decision to a tribunal consisting of a person or persons qualified to be appointed as Judge of the High Court who shall be appointed by the Local Government.