Lachmi Chand Suchanti vs Ram Pratap Chaudhuri and Others

Courtney-Terrell, C.J.—This is a second appeal from a decision of the second Subordinate Judge of Patna, and the substantial question before us is whether a civil Court has power to set aside the return of a candidate, who is declared elected to the District Board, and to declare that his rival candidate is entitled to be considered as the candidate duly elected.

The plaintiff and the defendants were candidates for election to the Patna District Board in the last general election of members from the Electoral Circle No. 20. The poll took place on 29th April 1933. There were three vacancies to be filled and defendants 1, 2 and 3 were declared elected. The plaintiff was a fourth candidate and asserts that had the counting of the votes been properly conducted according to the rules he would have been successful and would have obtained the third place.

He sued the defendants in the Court of the Subordinate Judge for a declaration that the return of the defendants should be declared invalid and that he should be declared to have been properly elected. The Subordinate Judge directed a recount of the ballot papers, and as a result found that the plaintiff had obtained the third place. He therefore, declared that the return had been invalid, but granted to the plaintiff a declaration more limited than that sought, namely, mot that the plaintiff had been elected but that the plaintiff had a right to be returned as having been elected. The defendant No. 3, who has been ousted from his former position as the third elected member, has appealed to this Court from this decision. His contention throughout has been that the civil Courts had no jurisdiction to set aside his election, to recount the votes or to declare the plaintiff as entitled to the majority of votes.

The District Boards were constituted by the Bihar and Orissa Local Self-Government Act of 1885, and the rights to vote and to stand as a candidate for election were created by this Act. By Section 138 the Local Government was empowered to make rules consistent with the Act for a number of specified purposes. The material parts of the section are as follows:

It shall be lawful for the Local Government to make rules consistent with this Act for any District Board or Local Board or Union Committee for the purpose of; (a) determining the mode and time of appointment or election of members of Boards and Committees, the term of office and the qualifications and disqualifications of such members and the qualifications and disqualifications and the registration of voters and candidates, and generally for regulating all elections under this Act.

and to these words were added by the Bengal Self-Government Amendment Act, 1908, the following words:

and determining the authority who shall decide disputes relating to such elections.

In my opinion the words added by the amendment clearly indicate that it was the intention of the legislature that what is generally known as an election petition Court should be set up for deciding all disputes relating to all elections instituted under the Act, that such Court should be appointed by the Local Government and that the Local Government should frame rules for its procedure and that all disputes of any character should come before and be decided by such Court.

It is true that the words at the commencement of the section are "it shall be lawful" but in construing Acts of public utility where the framing of the rules and the making of the appointment is necessary in order that the objects of the Act may be attained, such words which might otherwise be considered permissive are really mandatory. The permissive form is a mere courteous convention. The Act really imposes a duty on the executive and it is implied that a public body will carry out the duties indicated by the legislature in order that the purpose of the legislature may not be frustrated.

This rule of construction has been well recognized. The case is quite otherwise when a public body or officer is invested with authority to exercise a judicial discretion. Even in such a case the body or officer must receive any application made to it and exercise the jurisdiction conferred either by granting or withholding the relief claimed. As was said by Lord Cairns in Frederic Guilder Julius v. Right Rev. The Lord Bishop of Oxford (1880) 5 AC 214:

The words ''it shall be lawful'' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a, duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law speaking generally, it falls to the Court of Queen''s Bench to decide, on as application for a mandamus. And the words ''it shall be lawful'' being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation.

Later in the same judgment the Lord Chancellor referred to the case of King v. Havering-atte Bower, 5 B & A 691 where a power had been granted by royal charter to the steward and Suitors of a manor giving them authority to hear and determine civil suits. It was held that this was in effect the establishment of a Court for the public benefit, and that the stewards and suitors of the manor were bound to held the Court. The Local Government did in fact frame rules on 24th November 1923 and seem to have followed as a precedent the rules framed in Bengal, but these fall short of the requirements of the legislature. Among other matters the actual conduct of the election is dealt With; the duties are assigned to presiding officer and to returning officers. By Rule 25 the returning officer is defined as a Magistrate appointed by the District Magistrate.

Under Rule 29 this officer has to examine nomination papers and decide objections to nominations and on the scrutiny of the nomination papers his decision is to be final. At each polling station there is a presiding officer, who under Rule 36 is to see that the election is fairly conducted. Under Rule 39 at each polling station there is to be provided a ballots box for each candidate on which his name shall be written, and this box is coloured and numbered, a separate colour and number being assigned to each candidate. Under Rule 44(1):

If more than one member is to be elected for any electoral circle the presiding officer shall give the voter as many ballot papers as there are members to be elected and shall explain to him that each ballot paper must be placed in a different ballot box. (2) Each such ballot paper shall bear the same serial number. (3) If the voter places more than one ballot paper in the same box, the votes shall be invalid and shall not be counted.

By Rule 58(1):

A ballot paper shall be rejected if, (a) it has not on its back the official mark, or (b) it bears any mark by which the voter can be identified, (2) the decision of the Returning Officer as to the validity of a ballot paper shall be final.

By Rule 60(1):

When the counting of the votes has been completed, the Returning Officer shall forth with declare the candidate or candidates, as the case may be, to whom the largest number of votes have been given to be elected.

Then there are provisions that the returning officer shall report the results of the election to the District Magistrate, and the District Magistrate shall cause the results of the election to be published in the Gazette and communicate to the Local Government and the Commissioner by Rule 66(1):

No election shall be invalidated on a point of form, provided that these rules have been substantially complied with.

By Rule 67:

No election shall be invalidated on account of any irregularity whatever unless it appears that the irregularity was such as to materially affect the results of the election.

It is the therefore clearly contemplated both by the legislatures and by the Local Government that an election may be declared invalid, and the legislature clearly contemplated that the Local Government would appoint an authority to decide all disputes relating to elections, which necessarily includes the decision upon petitions to have an election declared invalid for any reason such, for example, as that there has been material irregularity and such irregularity in the conduct of the election has materially affected the result thereof, or upon such general grounds as wholesale bribery or public disorder which prevented the voters from exercising their franchise.

But the Local Government seen to have taken a very narrow view of their obligations in the matter of appointing such an authority, or in framing rules for the conduct of its proceedings. the following rule is the only rule which seems to have any bearing upon the personnel or functions of such a tribunal:

All disputes arising under these rules regard to any matter other than a matter the decision of which by any other authority is declared by these rules to be final, shall be decided by the District Magistrate whose decision shall be final.

It is contended by the appellant that by this rule the District Magistrate was constituted the authority to decide all disputes. It such was the intention of the Local Government, the words employed fall short of expressing such intention. The words "arising under these rules" are in themselves vague.

If they have any meaning they would seem to indicate that the District Magistrate''s authority is to be limited to deciding any dispute relating to the procedure of the election, save and expect such disputes as are to be decided by the presiding officer or the returning officer. A strong argument for the contention that his authority is so limited is provided by the fact that the rules nowhere contain any procedure which would be necessary if the District Magistrate were intended to act as an election tribunal in the ordinary sense. Moreover the provision that the returning officer''s decision is to be final in the matter of the rejection of ballot papers would seem to indicate that the District Magistrate has no power to decide whether or not the returning officer has done his duty nor does it seem that he would be able to order a recount if there had been failure in such duty.

I am of opinion that the decisions of this Court in Kali Prasad Singh v. Makutdhary Prasad Sinha 1933 Pat 155 and Vasistha Narain Sinha v. Sant Lal Kumar 1934 Pat 27 to the extent that the authority of the District Magistrate is so limited are right. It was frankly conceded on behalf of the appellant that if the local Government had in fact carried out its duty under the Act to appoint an election tribunal, the disappointed candidate who desired redress of his grievances would be forded to have recourse to that Court and to abide by that Court''s decision. But it is said that there having been a failure to appoint any tribunal, the candidate had no option but to resort to the civil Court for his remedy.

I pause in the consideration of this proposition to continue an examination of the facts of the case. Under the rules of the conduct of the election a voter may only give one vote to one candidate; and, if any voter gives more than one vote to any one candidate by placing more than one ballot paper in the same box, none of the votes given by that voter to that candidate is to be counted. Now it is conceivable also that each voter might be watched to see that he does not put more than one ballot paper into each box. But it is obvious that when once he has placed a ballot paper into the box, such instances of plurality cannot be detected by the mere counting of the ballot papers. Each ballot paper will bear on the back of it a serial number appropriate to the candidate.

If the ballot papers in any box when being counted are arranged in the order of these serial numbers, it is clearly possible to detect any case in which more than one ballot paper bears the same serial number and in that case under Rule 44(3) such votes are not to be counted. No one has been able to suggest any other method by which such plural votes are to be eliminated from the count, In this case the returning officer was asked to count the votes in this way, but he refused stating in effect that the suggested process was too lengthy and laborious. The Subordinate Judge directed a recount and adopted the method, with the result that a number of plural votes in the count of each candidate having been eliminated it was found that the plaintiff was entitled to the third vacant place, and so ought to have been returned as elected.

It is contended however on behalf of the appellant that even if the local Government has not in fact carried out its duty of appointing an election tribunal, that was the intention of the legislature that such election tribunal should be appointed and that the appellant is in the position of one who has been deprived of a statutory right but has not been furnished with the tribunal who can enforce that right, and that in such case he has no legal remedy. Reference was made to the judgment in Wolver-hampton New Waterworks Co. v. Hawkesford, (1889) 6 CB (ns) 336 the judgment of Willes, J:

There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of case is, where the statute gives the right to sue merely, but provides no particular form or remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by the statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if ally liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adapted and adhered to.

It is contended that this particular case falls within the third class of cases contemplated by Willes, J., and that the right to sue in the ordinary civil Courts does not exist, and reference is made to the judgment of Sir Lawrence Jenkins in Bhaishankar Nanbhai v. Municipal Corporation of Bombay (1907) 31 Bom 604, at p. 609:

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.

I would however point out that the facts before us constitute a fourth class beyond the three enumerated by Willes, J. This is a case in which the right and liability has been created by statute, where the legislature has 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 is to carry out its duties. But the tribunal so contemplated by the legislature has never been brought into existence. I may say that the apparent acquiescence by the Government in the jurisdiction of the civil Court and the corresponding attitude of the Government in Bengal may have accounted for the limited form in which Rule 68 was drafted.

It cannot be supposed that the legislature contemplated that the Government might deprive persons to whom it had given a right, from having recourse to a tribunal to enforce that right and, in my opinion, in such circumstances the subject has the right to proceed in the ordinary civil Courts, unless and until the legislature carries out its duty of appointing a special tribunal. It is clear that when this shall have been done, the jurisdiction of the civil Court will be ousted. There are numerous examples of such a state of affairs. Not only is the situation contemplated by Willes, J., in his "third class" of cases, but the case reported in Bhaishankar Nanbhai v. Municipal Corporation of Bombay (1907) 31 Bom 604 above referred to provides a clear example in this particular field of election law.

The Local Government had in that case appointed the Chief Judge of the Small Cause Court to be the tribunal and it was held that the civil Courts could have in this circumstance no jurisdiction to decide upon the validity of an election. A similar instance is afforded by the case of Nataraja Mudaliar v. Municipal Council of Mayavaram (1913) 36 Mad 120. In the course of this case some discussion arose as to whether even when a special tribunal had been appointed and its procedure framed, whether the petitioner might proceed to a civil suit in the event of the special tribunal refusing or neglecting to carry out its duties in a proper manner; in other words, refusing or neglecting to exercise its jurisdiction.

If was suggested that in such circumstances a civil suit would lie in the ordinary way and that the plaintiff will have an independent right of action by virtue of Section 9, Civil PC., and Section 42, Specific Relief Act. It is not necessary for the purposes of this case to decide the point. But I would nevertheless venture to express my personal opinion that the argument is mistaken. There would, in my opinion, be no parallel jurisdiction and I agree with the opinions expressed in the Allahabad and the Madras cases above referred to.

The learned Government Pleader has appeared in the proceedings, but has stated that he has no instructions to take part in the discussion.

I would suggest for the consideration of the Local Government that they should consider the nature of the obligation cast upon them by S.. 138 of the Act in question and appoint a tribunal and frame machinery for dealing with all possible disputes which may arise. The ultimate control by the Courts of the land might be secured by providing that the decisions on fact by such tribunal should be final, but that the tribunal might have the power and also might be directed by the High Court to state a case upon any question of law which might arise. Acquiescence in the procedure by which a candidate who wishes to vindicate his rights, is bound to have recourse to the ordinary civil Court is fraught with possibilities of the greatest inconvenience.

The slow and costly procedure of trial, the first appeal, the second appeal and possibly the Privy Council may produce a state of affairs in which the constituency for a very long period of time will have no idea as to who is its representative, nor will the person involved at any particular stage of the litigation be sure of his position. It is not for me to suggest in this judgment the nature of the appointment which might be made. No doubt, the Government may be reluctant to cast an additional duty on busy executive officers. On the other hand, the present cadre of the civil judicial officers is already much overworked. Until however a tribunal has been appointed the plaintiff has a right of recourse to the civil Court with corresponding rights of appeal.

In my opinion, the appeal fails and should be dismissed with costs.

Fazl Ali, J.

I agree with my Lord the Chief Justice.

Agarwala, J.

I agree with my Lord the Chief Justice.

Luby, J.

I agree with my Lord the Chief Justice.

Wort, J.

This is an appeal from the decision of the District Judge of Patna affirming a decision of the Subordinate Judge granting the plaintiff a declaration that he was a duly elected member of the Patna District Board. The contention of the plaintiff was that the returning officer had not complied with the provisions of Rules 35 and 44 of the Rules made by the Local Government regulating District Board elections in that he had failed to reject certain invalid ballot papers for votes recorded in favour of the defendant. The invalidity consisted in the counting of what may be described as plural votes. Rule 44(3) provides:

If the voter places more than one ballot paper in the same box, the vote shall be invalid and shall not be counted.

The trial Court scrutinized the ballot papers and came to the conclusion that in some instances voters had given more than one vote to the defendant; that there had been a breach of the rules; and that on a proper counting of the votes the plaintiff should have been declared duly elected. The declaration sought for by the plaintiff was therefore granted. One of the questions in the Court below was whether the civil Court has jurisdiction in the matter, and that is the question which comes up for our determination. For the purposes of this case it is necessary to consider Section 138 of the Bihar and Orissa Municipal Act and the rules made thereunder. The relevant portion of Section 138 reads as follows:

It shall be lawful for the Local Government to make rules (inter alia) for the purposes of determining the authority who shall decide disputes relating to such elections.

It is contended by the defendant-appellant that under the rules made by the Local Government the proper authority for determining such disputes is the District Magistrate and consequently the jurisdiction of the civil Court is ousted. The scheme of the rules made by the Local Government u/s 138 is as follows: Provision in the first instance is made for the preliminaries of an election: that is to say, an officer called the registration officer is appointed for the purpose of preparing an electoral roll.

He places on that roll all such persons as are qualified to vote. Any claim to be placed on the electoral roll which has been rejected by the registration officer or any objection to the placing of a person on that roll comes for determination to an officer called the revising officer. The revising officer considers claims or objections and having decided them his decision in the matter is final under Rule 20. Under Rule 25 an officer called the returning officer is appointed. The persona designate is the District Magistrate. The returning officer appoints under Rule 34(2), a presiding officer who has the control of the election itself. One of the duties of the returning officer is to count the votes and to declare the results. Rule 58 makes provision for the rejection of ballot papers, which have "no official mark on the back" or bear "any mark by which the voter can be identified, as invalid" Together with this provision must be read Rule 44(3) to which I have already referred and which is to the effect that "if the voter places more than one ballot paper in the same box the vote shall be invalid and shall not be counted." It was the contention of the plaintiff that at the time the votes were counted, the only way of deciding whether plural votes had been cast or not was to place the voting papers or ballot papers in serial number.

It should be explained that each ballot paper delivered to a voter bore a serial number, that is to say, that the voter himself had a serial number. It was admitted as it would appear from the cross-examination of the returning officer that the only way of determining the question whether plural votes had been cast or not was to place the ballot papers in serial numbers (as contended by the plaintiff). That this is the only method is obvious. But it appears that the returning officer excused himself on the ground of want of time. Rule 68 of the Rules framed by the Local Government is as follows:

All disputes arising under these rules in regard to any matter other than a matter the decision of which by any authority is declared by these rules to be final, shall be decided by the District Magistrate whose decision shall be final.

It is contended by the appellant that the effect of this rule is that the Local Government has appointed the District Magistrate as the tribunal for hearing what are ordinarily called election petitions. The contention of the respondent (plaintiff) advanced in support of the decisions of the Courts below is that on a proper construction of Rule 44(3) the District Magistrate was merely to settle disputes arising under the Rules and that he was not the tribunal for settling disputes relating to elections. It is to be noticed that with regard to a matter which calls for decision (either during the course of an election or in the preliminaries connected with an election) the decisions of the respective officers appointed under the rules are final. It is therefore difficult to ascertain from the rules what would be the dispute under the rules left to the decision of the District Magistrate. The contention, as I have said, is that the jurisdiction of the civil Court has not been excluded, Assuming for the moment that it has not been, the question to be determined is, what is the jurisdiction of the civil Court?

It is true, as contended by the appellant, that the rights of the voters or the rights of a candidate under the Bihar and Orissa Municipal Act are creatures of the statute. Such rights as they possess are unknown to the Common law and those rights in this respect differ materially from the rights of a free holder as existed in England under the Common Law to vote in a Parliamentary election: see the decision in Ashby v. White of Lord Holt, Chief Justice (1703) 2 Ld Raym 938 in which it was said that the right to vote was an incident of the freehold. It is difficult in this country to escape from the use of an expression which strictly has no application to India. In speaking of the Common Law (which does not apply to this country) I use the expression in the sense used by Lord Hobhouse in the case of Waghela Rajsanji v. Masludin (1887) 11 Bom 551.

There can be no doubt (and the decisions are innumerable on this point in England, and there are also many decisions in India) that if a right is given by, a statute and a tribunal set up for the enforcement of that right by the statute recourse cannot be had to the Courts, and the subject is limited to his remedies such as they may be, before the tribunal set up by the statute. In Wolver-hampton New Waterworks Co. v. Hawkesford, (1889) 6 CB (ns) 336, Willes, J., made a classification relating to this matter, and stated that there were three classes of cases, the second and third of which, to use his own words were these:

One class of case is, where the statute gives a right to sue merely, but provides no particular form of remedy; there the party can only proceed by action at Common Law.

But there is a third class, viz., where a liability (and here we can substitute the word "right" without affecting the principle) not existing at Common Law is created by the statute Which at the same time gives a special and particular remedy for enforcing it. Then it is pointed out that in that class of cases the remedy provided by the statute must be followed. Applying the principle there laid down it must be held that if in this case the legislature had provided a tribunal, the only remedy the subject has, will be to that tribunal. See also Clegg Parkison & Co. v. Earby Gas Co. (1896) 1 QBD 592 1 B and Doe v. Bridges 1 B & Ad 847, Stevens v. Jeacocke (1876) 11 QB 731 and Marshall v. Nicholls 18 QB 882. An illustration of the third class to which it is contended the appellant in this case belongs is the case of Bhaishankar Nanbhai v. Municipal Corporation of Bombay (1907) 31 Bom 604 and Nataraja Mudaliar v. Municipal Council of Mayavaram (1913) 36 Mad 120, and there can be no dispute that in those cases election tribunals were set up the decisions of which were final.

Abdur Rahman v. Abdur Rahman 1925 All 380, was also an illustration of the same principle, but the substantial question in that case namely, whether there was a right of appeal from the decision of the Commissioner (which admittedly was a tribunal for the hearing of election petitions) was decided in the negative. In Kona Thimma Reddi. v. Secy. of State. 1924 Mad 523, which was an illustration of the same point, the decision depended upon whether the Governor in Council acted ultra vires in cancelling an election of a person to the District Board: incidentally whether the rules under which the Government purported to act were ultra vires, and whether the election under the rules could be questioned before the Collector of the district. It was held that the rules were not ultra vires, and the matter could not be questioned in a civil Court. It cannot be disputed therefore that if the Government had erected a tribunal for settlement of disputes, the plaintiff''s action must fail, the Court having no jurisdiction.

To revert to the point of jurisdiction of the civil Courts, it is said the right of action is given to the subject and jurisdiction to the Courts u/s 9. Civil P.C., and Section 42, Specific Relief Act. Section 42, Specific Relief Act, has been construed in India liberally, perhaps more liberally than was intended by the legislature; but such claims as the right to be declared to be the rightful mutawalli, etc., have constantly been adjudicated upon in India under this section: see also Sabhapat Singh v. Abdul Gaffur (1897)24 Cal 107. The cases of the rights of parties in matters relating to election may be said to fall in two classes. The first group would consist in these actions in Tort against persons acting maliciously in obstructing the right given under the statute. An example of that is the case of Ashby v. White of Lord Holt, Chief Justice (1703) 2 Ld Raym 938. This would arise in Tort.

However to bring a case within that class malice on the part of the defendant must be shown. The second class are those where no malice exists but are based upon irregular use of the powers granted by the statute or rules to the officers entrusted with these powers. Assuming that the jurisdiction of the civil Courts is not ousted by these rules, to this class the decision of James and Fazl Ali, JJ., in Kali Prasad Singh v. Makutdhary Prasad Sinha 1933 Pat 155 and the case of Vasistha Narain Sinha v. Sant Lal Kumar 1934 Pat 27 may be said to belong.

But it remains to be seen whether the rules themselves have set up a tribunal for the settlement of election disputes. If so, for the reasons I have stated the civil Courts'' jurisdiction is ousted. The matter seems to be concluded by an analysis of the rules.

In the first place it must be stated that the powers exercised by the Local Government must be intra vires the statute; secondly, that if there are two possible ways of construing the rules that construction must be placed upon the rules which would enable the Court to hold that the rules were within the powers of the Local Government. It must be assumed that legislature contemplated a tribunal which would have jurisdiction in all disputes relating to elections. The section itself seems to be clear on that point. Now looking at the rules we find disputes of two classes arising under the rules: first those in which the decisions of the revising officer and the returning officer are final; and, second those (a residuary class) left to the jurisdiction of the District Magistrate. Now clearly on a plain construction of B. 68 the District Magistrate has no jurisdiction in class 1. So far as the basis of an election dispute is a matter such as we are dealing with in this case, the jurisdiction of the tribunal (District Magistrate) for which the appellant contends is clearly excluded.

It is not going too far to say that the majority of election disputes are based on questions the final decision of which is given to the returning officer under these rules. Now the question is this: No one has or could seriously suggest that the returning officer was the tribunal set up under the Rules. If it were no such rules would be clearly ultra vires and contrary to the Act. Under these rules it must be the District Magistrate or nobody. We are therefore reduced to the conclusion that from the tribunal (District Magistrate) set up by the Local Government the majority of election disputes are excluded and that he has a mere residuary jurisdiction which in effect excludes the substance of those matters for the settlement of which the legislature gave the rule making power to erect a tribunal. This construction would in my judgment show that the Local Government had acted ultra vires. It was never the intention of the legislature to set up a tribunal with a limited jurisdiction.

The other possible construction is that the District Magistrate is not the tribunal for hearing election disputes other than disputes arising strictly under the rules and in the course of an election. No other construction seems possible. The decisions of the Calcutta High Court on these rules (which are the same with the exception of one matter) are not helpful inasmuch as there in an Act otherwise similar there was expression to the effect:

Nothing contained in this Section (15) nor in any rules made under the authority of this Act shall be deemed to affect the jurisdiction of the civil Courts: see Sabhapat Singh v. Abdul Gaffur (1897)24 Cal 107 and Rathis Chandra v. Amulya Charan 1931 Cal 36.

It is contended by the learned advocate for the appellant that in construing these rules regard must be had to the statute itself and not so much to the rules; that on a true construction of Section 138, the legislature itself has set up a tribunal and it remains only for the Local Government to designate the persons forming that tribunal. This contention is to some extent based on the argument that when the statute, that is to say, Section 138, Bihar and Orissa Local Self Government Act, used the words "it shall be lawful," it must be construed as mandatory; that there is no discretion left in the Local Government.

That in certain circumstances where a duty is thrown upon an authority and a provision is made for the carrying out of that duty, the words such as "it may or it shall be lawful" are used, it is true that the Court construes the words as mandatory. But to contend that wherever the words "it shall be lawful" are used they must be construed as "must or shall" would be a proposition which cannot be supported on the authorities. The leading case with regard to this matter is Frederic Guilder Julius v. Right Rev. The Lord Bishop of Oxford (1880) 5 AC 214, where Lord Cairns, Lord Chancellor stated:

The case appears to me to turn upon the use of the words ''it shall be lawful'' in Section 3, Church Discipline Act.

In the course of his speech in the House of Lords he made this statement:

The words ''it shall be lawful'' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a facility or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen''s Bench to decide.

Later reference was made to a passage in the decision of Coleridge, J., (a decision of the Queen''s Bench) which runs thus:

The words undoubtedly are only empowering, but it has been so often decided as to have become an axiom, that in public statutes words only directory, permissory or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice.

Lord Cairns then said:

To the rule thus guardedly expressed there is not, perhaps, much to object, and I only refer to the words for the purpose of pointing out that I am unable to see that they justify the expressions of the Lord Chief Justice of the Queen''s Bench in the present case.

Later he said:

The only axiom Coleridge, J., spoke of was that under certain circumstances, enabling words might have a compulsory force.

Lord Blackburn also stated:

The words ''it shall be lawful'' are not in themselves ambiguous at all. They are apt words to express that a power is given; and prima facie, the donee of a power may either exercise it or leave it unused.

It is thus clear that it depends upon the circumstances of the case as to whether the words should be construed as mandatory in this connection. In my judgment the words do nothing more than give a power. But in any event we are met with another point. Assuming that the words are mandatory and in fact the Local Government did not exercise their powers, can it be said that the subject has no redress? It seems to me that it is impossible to come to that conclusion. The last contention related to the question of the nature of the declaration giving title. It was contended that the plaintiff was not entitled to be declared as duly elected and that the declaration that he was duly elected was a duty placed by the rules, and therefore by the statute, on the returning officer.

Assuming the argument to be sound, difficulties would then arise. The question in this case is not the validity of the election, but the effect of the election of a particular candidate. During the course of the election it was not contended by any party that it was invalid, but it was merely suggested that the election of the defendant was invalid and contrary to law. When once it has been determined that the civil Courts have jurisdiction, it is difficult to extricate oneself from the position of holding that the Court is entitled to adopt whatever procedure may be necessary (as in this case the counting of votes) to assist it in coming to the conclusion as to whether the rules have been complied with or not.

Further more having adopted that procedure, having declared that in the events which have happened the plaintiff should have been declared elected, it remains merely a practical question as to whether there the proper authority will recognise the declaration that the successful party in the action is the duly elected candidate.

It is as I have said a practical question and I cannot imagine the circumstances in which the Court having jurisdiction to grant a declaration such as the declaration in this case, the Government could not act upon that and issue a notification that the successful party in the litigation was the successful candidate in the election. For these reasons it seems to me that the appeal fails and should be dismissed with coats.

I concur in the recommendation made to the local authority by the Chief Justice.