RAHIMUDDIN AHMED Vs. UMESH CHANDRA ROY

JUDGEMENT

(1.) This rule arises from the following facts: The petitioner was elected as the President of the Akcha Union Board in the district of Dinajpur on 12 January 1913, in a meeting of the members of the Union Board, presided over by the Circle Officer. A petition against the election was filed before the District Magistrate who ordered on 10 April 1943 that a fresh election should be held, on the finding that the election proceedings should not be confirmed. It is stated in the plaint that five votes were cast for opposite party 1 and four for the petitioner but that the Circle Officer rejected two of the five votes, so that the petitioner was elected by four votes to three. The learned Commissioner heard an application in revision as provided by Section 17B, Village Self-Government Act, and agreed with the finding of the learned District Magistrate that the two votes had been wrongly rejected but found himself unable to uphold the order for a fresh election and accordingly ordered appointment by the District Board as provided by Section 8(2) of the Act. In compliance with the Commissioner's order the District Board nominated the petitioner as President of the Union Board. Opposite party 1 instituted Suit No. 8 of 1944 in the Munsif's Court for a declaration that he was duly elected as President of the Union Board with further consequential prayers. An issue involved was raised whether the Court had jurisdiction to hear the suit. The learned Munsif after hearing both the parties came to the conclusion that he had jurisdiction. Hence the present rule. Mr. P. B. Chakravarty, for the petitioner, has argued the matter ably and exhaustively but we do not propose to follow him in all the submissions placed before us, for the question, to our mind, is the plain question whether the learned Munsif was right or wrong in holding that the suit was entertainable in a civil Court. Limiting ourselves to this aspect of the matter, we recall that Secs.17A and 17B, Village Self-Government Act, were placed before us. The former bars the jurisdiction of the civil Court in matters concerned with the election of members of Union Boards and the latter provides affirmatively that if a dispute arises as to such an election the jurisdiction to decide it is with the District Magistrate; his order being subject to revision by the Commissioner "whose decision shall be final and shall not be questioned in any Court. These sections were inserted in the Act by the amending Act of 1935. The other legislative material placed before us was Notification No. 908 L. S. G. --dated 8th July 1941, reproduced below: In exercise of the power conferred by Sub-section (1) of Section 101, Bengal Village Self-Government Act, 1919 (Bengal Act 5 of 1919), the Governor is pleased to make the following rules: Rules Rules regarding the decision of disputes relating to the election of Presidents and Vice-Presidents of Union Boards. 1. If any dispute arises as to the election of the President or the Vice-President of a Union Board, the matter shall, within thirty days from the date of the meeting at which such election took place, be referred to the District Magistrate who shall decide the same after giving notice to the parties concerned and after taking such evidence as may be produced.

(2.) The decision of the District Magistrate shall, within thirty days from the date thereof, be subject to revision by the Commissioner whose decision shall be final. 2. We describe this notification as legislative although it has not received the attention of the legislative bodies set up by the Constitution Act in the Province; it is nevertheless legislation, made under the power vested in the Provincial Government by Section 101(1) of the Act. The learned Munsif considered these materials in coming to his findings. He held that Secs.17 A and 17B of the Act were, on their face, provisions concerning disputes arising from elections of members of Union Boards and that they had nothing to do with regard to disputes in connexion with the election of a member of the Union Board to be its President. We record our opinion that the learned Munsif was perfectly correct in his view. He then proceeded to consider the Notification quoted above. He considered the language of Rule 2 in the Notification "Subject to revision by the Commissioner whose decision shall be final" and contrasts it with the language of Section 17B, "subject to revision by the Commissioner whose decision shall be final and shall not be questioned in any Court." He holds the difference to be significant and finds that whereas the disputes regarding the election of a member of a Union Board have been totally prohibited, there is no such total bar regarding the filing of suits in connexion with the disputes regarding the election of a president.

(3.) Our attention has been drawn to a number of decisions to the effect that the words "whose decision shall be final" mean what they appear to mean on their face, namely, that the jurisdiction of any other tribunal than that specified is barred, but we cannot overlook the addition of the words "and shall not be questioned in any Court" in Section 17B as contrasted with the omission from Rule 2 in the Notification of those words, a rule in a closely connected subject-matter and moreover a rule made in 1941 whereas Section 17B was inserted in the Act by the Amending Act of 1935. We cannot hold that the learned Munsif is wrong on the view he has taken of the difference in language. Further, on this part of the case, the learned Munsif points out that the dispute is regarding the nomination by the District Board and not regarding the election of a member of the Union Board as President. Here Mr. Chakravarty candidly admitted that he could not succeed unless the rule on its face barred the present suit. In our opinion the observation of the learned Munsif in this behalf is not open to criticism. The result is that the rule is discharged with costs. The hearing fee is assessed at two gold mohurs. Akram, J.