ABALA KANTA GHOSE Vs. SYED JALALUDDIN HASHEMY

JUDGEMENT

(1.) This appeal which is on behalf of the defendants is directed against an order of remand passed by the District Judge, Khulna, on 9 July 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 re-hearing 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:

(2.) 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, and 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.

(3.) 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 Section 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.