Chatterji, J.This is an application for revision of an order passed by the District Judge of Gaya as Election Commissioner under the Bihar District Board Election Petitions Rules, 1939, setting aside an election held under the Bihar District Board Electoral Rules, 1937. The application was originally heard by Agarwala J. but was referred by him to a Division Bench. In May 1939 there was a general election of members of the District Board, Gaya. The petitioner and the opposite party were the only candidates for election from Electoral circle No. 9, Police station Barachatti, District Gaya. They filed their nomination papers before the Returning Officer, who was the Sub-divisional Officer of Gaya, Sadar, on the appointed date, i.e., 18th April 1939. The nomination papers were filed in the prescribed form, i.e., Form 7. Item 1 in that form is "name of the electoral circle for which the candidate is nominated." The description given against this item in the nomination paper of the opposite party was "police station Barachatti (Gaya), circle No. 9," ft whereas the description given in the Electoral Roll was "Electoral circle No. 9, Police station Barachatti." The scrutiny of nominations was held by the Returning Officer on 19th April 1939. He rejected the nomination paper of the opposite party with the following remark "rejected as name of Electoral Circle is not properly described." There being no other candidate, the petitioner was declared to be duly elected under Rule 33(2).

2. The petitioners name was published, as required by Section 9, Bihar and Orissa Local Self-Government Act of 1885, in the Bihar Gazette on 16th August 1939. In the meantime the Bihar Government in exercise of the powers conferred by Section 138(a), Bihar and Orissa Local Self-Government Act, framed rules called the Bihar District Board Election Petitions Rules, 1939, which were published in the Bihar Gazette on 8th July 1939. In accordance with these rules, the opposite party filed an election petition on 29th August 1939, before the District Judge, Gaya, as Election Commissioner, asking that the election of the petitioner be declared void. Rule 16, Election Petitions Rules, provides, inter alia, that if in the opinion of the Election Commissioner the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the election of the returned candidate shall be void. The District Judge held that the rejection of the nomination paper of the opposite party was quite unjustified and improper and that the result of the election was materially affected by the improper rejection. He accordingly declared the election of the petitioner as void. His decision is final according to Rule 22, Election Petitions Rules, hence this application in revision.

3. The first question that arises for our consideration is whether the Election Commissioner whose order is being challenged is a Court, and if so, whether he is a Court subordinate to the High Court within the meaning of Section 115, Civil P.C. On the question whether the Election Commissioner is a Court, I think th0at the decision of the Full Bench of this Court in Mt. Dirji v. Srimati Goalin reported in AIR 1941 Pat. 65 affords a complete answer. In that case it was held that a Commissioner under the Workmens Compensation Act (Act 8 of 1923) is a Court. The tests laid down there are fully satisfied in the present case. To use the words of Pazl Ali J. who delivered the judgment (Harries C.J., and Manohar Lall J. agreeing), the Election Commissioner

constitutes an independent tribunal and Ms function is to judge and decide and not merely to enquire and advise, and in judging or deciding the matters before him he has to proceed judicially and not arbitrarily

4. The procedure to be followed by the Election Commissioner is, as nearly as may be, the procedure applicable under the CPC to the trial of suits (see Rule 11(2)); he has also in respect of certain matters, such as, enforcing the attendance of witnesses, compelling the production of documents, examining witnesses on oath, etc., the powers which are vested in a Court under the CPC when trying a suit: see Rule 23. Rule 23 also provides that he shall be deemed to be a civil Court for the purposes specified therein. There can therefore be no doubt that he is a Court.

5. As regards his subordination to the High Court, the very definition of Election Commissioner given in the rules makes the position clear. According to Rule 2(g), "Election Commissioner" means the District Judge or the Judicial Commissioner exercising jurisdiction over the area in which the election, in respect of which an election petition under these rules is filed, was held. In other words, the District Judge or the Judicial Commissioner is given the powers of an Election Commissioner. Undoubtedly the District Judge is subordinate to the High Court. Necessarily the Election Commissioner as a Court is subordinate to the High Court. This view is supported by the Pull Bench decision of the Madras High Court in Parthasaradhi Naidu v. Koteswara Rao Garu AIR 1924 Mad. 561 . In that case their Lordships had to consider the following rule framed under the Madras Local Boards Act of 1920:

No election of a member or of a President of a District, Taluk, or Union Board shall be called in question except by an election petition, presented in accordance with these rules, to the District or Subordinate Judge having jurisdiction.

They held that

A District or Subordinate Judge, in deciding an election petition presented before him under the rules issued by the Local Government under the Local Boards Act, 1920, is acting not merely as a persona designata, but as a Court in the exercise o its ordinary jurisdiction extended for that purpose; consequently the High Court is competent to exercise its powers of revision over decisions in election petitions.

6. The next question that arises is whether the Election Petitions Rules, which came into force after the election in question was held, will have any application. Rule 3 of the Election Petitions Rules provides "No election shall be called in question except by an election petition presented in accordance with these rules." Mr. Lalnarayan Sinha for the petitioner contends that "election" in this rule must be taken to be an election held after these rules came into force. Rule 31 of the District Board Electoral Rules, 1937, provides that the decision of the returning officer accepting or rejecting a nomination paper shall be final. Mr. Lalnarayan Sinhas contention is that, however erroneous the decision of the returning officer rejecting the nomination paper of the opposite party might be, his decision was final and was not liable to be challenged under the law then in force. After the petitioner was declared to be duly elected on 19th April 1939, he had a vested right, and that right could not be taken away by the subsequent Election Petitions Rules. In the alternative it is argued that even assuming that the decision of the returning officer rejecting the nomination paper of the opposite party was liable to be challenged under the law then in force, it was by means of a civil suit, and that the election petition was not maintainable.

7. It cannot be disputed that as a general rule no statutory provision, in the absence of express enactment or necessary intendment, can operate retrospectively so as to defeat a right in existence at the time the statute comes into force. For this proposition it will be enough to refer to the Privy Council decision in AIR 1927 242 (Privy Council) . In that case the question arose whether an appeal lay to the Privy Council from an order of the High Court which was not appealable under the law in force at the time it was passed, but was made appealable by a subsequent legislation which came into existence by the time the appeal was filed. It was held that the appeal was incompetent. Their Lordships said:

The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the board in Colonial Sugar Refining Co. v. Irving (1905) 95 A.C. 369 where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, applied retrospectively would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights.

8. It. will also be useful to refer to the following observation of Lord Cranworth in Kerr v. Ailsa (1854) 1 Mac 736:

Unless there be something in the language, context or object of an Act of parliament showing a contrary intention, the duty and practice of Courts of justice is to presume that the Legislature enacts prospectively and not retrospectively,

which was relied upon by Fazl Ali J. in the Pull Bench case Tika Sao v. Hari Lall AIR 1940 Pat. 385 . It is therefore necessary to see if there is anything in the language, context or object of the Election Petitions Rules to show whether or how far these rules were intended to be retrospective. It must be remembered that these rules did not repeal the Bihar District Board Electoral Rules, 1937. Rule 69 of the Electoral Rules, e 1937, says:

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.

This suggests that an election will be invalid if it is vitiated by any irregularity which materially affected the results of the election. Rule 70 provides:

All disputes arising under these rules in 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.

These two rules, which correspond to Rules. 67 and 68 of the Electoral Rules of 1928, came up for consideration before a Pull Bench of five Judges of this Court in Lachmi Chand v. Ram Pratap AIR 1934 Pat. 670 With regard to the words "arising under these rules" in Rule 70, Courtney-Terrell C.J. with whom Pazl Ali, Agarwala and Luby JJ. agreed (Wort J., also agreeing, but by a separate judgment) observed that these words are in themselves vague. Their Lordships held that

it was the intention of the legislature that an election tribunal should be set up by the Local Government for deciding all disputes relating to elections, which necessarily include the decision upon petitions to have an election declared invalid for any reason such as, for example, there has been material irregug larity 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.

9. It is thus clear that though an election might be invalid, the Electoral Rules did not provide as to how and by which authority disputes relating to it should be decided. Section 138(a), Bihar and Orissa Local Self-Government Act, gives power to the Government to make rules, inter alia, for the purpose of "determining the authority who shall decide disputes relating to such elections." It is for this purpose that the Election Petitions h Rules, 1939, were framed. Rule 4 of the Election Petitions Rules, 1939, provides that an election petition may be presented against any returned candidate. "Returned candidate" as defined in Rule 2(h) means "a candidate whose name has been published u/s 9 of the Act as elected." Section 9 of the Act, i.e., the Bihar and Orissa Local Self-Government Act, 1885, provides: "The names of members elected and appointed shall be published in the official Gazette." Under Rule 33(4) of the Electoral Rules the returning officer is required to report the names of all candidates declared to be elected to the District Magistrate. According to Rule 63, the District Magistrate in his turn is required to communicate a copy of the lists of the names of all the members elected to the Provincial Government for subsequent publication in the Gazette. The petitioners name was published in the Bihar Gazette on 16th August 1939, that is to say, after the Election Petitions Rules came into force. The petitioner thus became a "returned candidate" within the meaning of these rules and after they came into force. Though u/s 13, Local Self-Government Act

a member of a District Board or Local Board elected at a general election of members of a District Board shall hold office for three years commencing from the date of the general election.

it appears that members cannot function until after their names are published in the Gazette u/s 9. Section 19, Sub-section (1) provides that the members of a District Board at a meeting shall elect one from among their own number to be chairman, and Sub-section (2) provides that such election shall take place within thirty days from the date of the publication of the names of the members in the Gazette u/s 9. Section 24 of the Act then provides:

The Chairman and Vice-Chairman of a District Board or Local Board shall continue to hold office until the next general election of members of the District Board, and for such further period as may elapse between the date of the general election and the first meeting of the newly constituted District Board or Local Board, as the case may be, held under provisions of Sub-section (2) of Section 19 or of Sub-section (2) of Section 20, and they shall then vacate office.

10. It is clear that the first meeting of the newly constituted District Board is to be held after the publication of the names of the members in the Gazette. The publication in the Gazette, therefore, seems to be an important part of the election proceedings, and the proceedings do not come to an end until the publication in the Gazette takes place. A District Board is a body corporate, as laid down in Section 29, Local Self-Government Act, and no member of such board can function as such unless and until the board can function. Neither the newly constituted board nor the newly elected members can function until after the publication of the names of the members in the Gazette.

11. The object of enacting of Election Petitions Rules is to provide how and by which authority disputes relating to elections should be decided. These rules are really supplementary to the Electoral Rules. Both these sets of rules again are supplementary to the Local Self-Government Act. The rules will have to be read along with the relevant provisions of e the Act. The definition of "returned candidate" in the Election Petitions Rules expressly refers to Section 9 of the Act. It is significant that Rule 5 of these rules provides that an election petition shall be presented within fourteen days from the date of the publication in the Bihar Gazette of the name of the returned candidate u/s 9 of the Act. The Government, while framing the Election Petitions Rules, must be presumed to have known that the election of a candidate, whether under Rule 33 or under Rule 61 of the Electoral Rules, takes effect from the date of the election (Section 13, Local Self-Government Act). If the Election Petitions Rules were intended not to affect elections already held, but not yet followed by the required notification in the Gazette u/s 9, Local Self-Government Act, nothing would have more clearly expressed such intention than by defining "returned candidate" as a candidate who has been declared to be elected in accordance with the Bihar District Board Electoral Rules in force, or by using the plain and unequivocal expression "elected candidate" instead of "returned candidate" in Rules 4 and 5 and making the necessary changes in the other relevant rules including the definition clause. There 9 must have been some purpose in introducing the expression "returned candidate" which is not to be found in the Electoral Rules, and the definition given to this expression suggests-that it will be more consistent with that purpose to hold that the new rules were intended to apply not merely to future elections-but also to the just preceding elections which were still to be notified u/s 9, Local Self-Government Act. Notification in the Gazette is, of course, necessary for the information of the public, and from this point of view, Rule 5, Election Petitions Rules, is perfectly intelligible. But it is not understood why the definition of "returned candidate" is made to depend on such notification. Ordinarily "returned candidate" would mean successful or elected candidate. If this expression had been defined so as to convey its plain ordinary meaning, the general purpose of the rules would have been equally served, except that in that case they would have no application to elections already made, but not yet notified u/s 9, Local Self-Government Act. The definition, as given thus affords sufficient indication of the intention of the Government.

12. Having regard to the object of the Election Petitions rules and to the definition of "returned candidate" given in these rules and also to the fact that under these rules an election petition can be presented only against a "returned candidate," it seems to me that the necessary implication is that the intention of the Government in making the Election Petitions Rules was that they should apply to an election in respect of which the required notification u/s 9, Local Self-Government Act, was made after the rules came into force, though the election itself might have taken place before. In my view, therefore, the election petition was maintainable. I would accordingly dismiss this application, but, in the circumstances, without 6 costs.

Meredith J.

13. This application in revision is directed against an order of the learned District Judge, Gaya, as Election Commissioner under the Bihar District Board Election Petitions Rules, 1939, declaring the petitioners election void.

The petitioner and the opposite party were the only two candidates for election in electoral circle No. 9, police station, Barachatti of the Gaya District Board. 18th April 1939 was the date fixed for scrutiny of nomination papers. The electoral rules current at the time were those issued under Notification No. 3410-L.S.G., dated 2lst June 1938. On 19th April 1939, the Returning Officer on technical grounds rejected the nomination paper of the opposite party, and consequently in accordance with Rule 33(2) of these rules he forthwith declared the petitioner duly elected. It is to be observed that under Rule 31(3) the decision of the Returning Officer either accepting or rejecting a nomination paper shall be final.

Thereafter in due course the name of the petitioner as duly elected candidate was published in the Bihar Gazette on 16th August 1939.

14. In the meanwhile, however, the Government, in exercise of the powers conferred by Section 138(a), Bihar and Orissa Local Self-Government Act, 3 of 1885, had made the Bihar District Board Election Petitions Rules, 1939, and on 8th July 1939, that is to by, between the date when the petitioner was declared duly elected by the Returning Officer and the date when his election was published in the Gazette, these now rules were published in the Gazette; these new rules were published by Notification No. 3481-L.S.G. and came into force.

15. On 29th August 1939, within 14 days of the petitioners name being gazetted, the opposite party filed an election petition under these rules before the District Judge, Gaya, as Election Commissioner, and objected to the rejection of his nomination paper by the Re& turning Officer. On 16th January 1942, the Election Commissioner held that the rejection of the nomination paper was wrong, and under Rule 16(1) he declared the petitioners election void, as it had resulted from the improper rejection of his rivals nomination, papers. Under Rule 22 of these rules every order passed under any of the provisions of these rules shall be final.

16. The present application is for revision of that order.

Rule 3 of these Election Petitions Rules is as follows: "No election shall be called in question except by an election petition in accordance with these rules." Therefore, since the opposite party preferred his objection to the election after these rules came into force, he took the obvious course in going to the Election Commissioner instead of filing a regular suit. Mr. Lal Narayan Sinha, however, for the petitioner, contends that the obvious course was not the correct one. He points out that it is well settled that in the absence of any express provision or necessary implication in an enactment, so far as matters of rights are concerned as opposed to questions of procedure, it must be construed prospectively, and not restrospectively; that is to say, in such a manner as not to affect existing vested rights. He contends that there is nothing in these Election Petitions Rules suggesting either expressly or by necessary implication, that they should operate retrospectively. He argues that the petitioner on 19th April 1939, the date when he was declared duly elected by the Returning Officer, acquired a vested right, a right to call himself a District Board member and to take his seat in due course, a right which, the Returning Officers order being final under the rules, could only be challenged, if at all, under certain limited grounds by suit; and, secondly, the potential or inchoate right h of appeal should any such suit be brought and decided against him.

17. These rights, he says, even if inchoate became vested in him before the new rules came into force. Consequently nothing done under those rules could affect these rights. The order of the District Judge, however, seriously affected them. It deprived him of his position as elected member on the ground merely that the Returning Officers order was wrong, a ground which could not have been pleaded successfully in a regular suit, as the Returning Officers order was not without jurisdiction; and it deprived him completely of the right of appeal which he would have had had the matter been decided in a regular suit. The order of the District Judge was, therefore, without jurisdiction.

There can be no doubt at all that the general proposition put forward by Mr. Lal Narayan Sinha is correct. The legal principles governing the matter are very clearly set out in The Bank of Ghettinad Ltd. v. Maung Aye AIR 1938 Ran 306 where a number of significant quotations from English cases are made. I reproduce some of these. In Wright v. Hale (1861) 30 L.J. Ex. 40. Baron Wilde said:

Where you are dealing with a right of action, and an Act of Parliament passes, unless something express is contained in that Act the right of action is not taken away.

In Thomson v. Lack (1846) 3 C.B. 540 Baron Wilde said:

The general principle that a statute is not to be construed so as to have a retrospective operation, is a just one; for, persons ought not to have their rights affected by laws passed subsequently.

Finally, in The Queen v. Guardians of Ipswich Union (1877) 2 Q.B.D. 269. Cock, burn C.J. said:

It is a general rule that where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply to a state of facts coming into existence after the Act.

18. It is clear from these principles that in the absence of any express provision or necessary implication to the contrary the Election Petitions Rules must be construed prospectively, that is to say, as relating only to elections held after the rules had come into force and affecting only rights coming into existence after the publication of the rules. When Rule 3 says "No election shall be called in question except by an election petition presented in accordance with these rules," the word "election" in the absence of anything to the contrary must be read as "future election." A case of our own High Court where this principle was clearly laid down is Gursaran Das v. Akhouri Parmeshwari Charan AIR 1927 Pat. 203 a case under the Chota Nagpur Tenancy Act. Before the enactment of Section 139(a) of that Act a right of suit had accrued. Section 139(a) barred the jurisdiction of the civil Courts where an application would lie before the collector. A suit was brought in the civil Court after Section 139(a) had come into operation, but it was held that the suit was maintainable, because before Section 139(a) had been inserted the right of suit had already accrued (though no suit had been filed in pursuance of that right), and the bar of that section could not operate to affect that vested right. Their Lordships pointed out that that result followed not only upon the general principles of construction but also directly from the provisions of Section 8, Bihar and Orissa General Clauses Act, 1917, since the new Section 139(a) must be construed as a repeal protanto of Section 9, Civil P.C.

19. Two other cases upon the point may be briefly referred to. In AIR 1927 242 (Privy Council) the Privy Council laid down that provisions which, if applied retrospectively, would deprive of their existing finality orders which when the statute came into force were final, (itatics mine) are provisions which touch existing rights. Accordingly, if such provisions are to apply to orders final at the date when they come into force it must be clearly so provided.

In The Colonial Sugar Refining Company, Limited v. Irving (1905) A.C. 369. The Privy Council made it clear that there is no difference between abolishing an appeal 9 altogether and transferring it to another tribunal. This observation would, of course, apply with equal force to a right of suit. There is, moreover, another point in this case which is most material. Their Lordships applied this principle not to a right of appeal which had actually accrued, but to a potential right of appeal. At the date when the provision transferring the appeal to another tribunal came into force the right of appeal in that case was only inchoate, because the suit had not been decided. The right of appeal there in question was a mere potential right which would become actual only in the event h of the suit being decided in a certain way. Nevertheless it was held that the new enactment could not operate even to affect this inchoate right of appeal. The right of appeal there was just the same potential right which the petitioner in the present case claims to have acquired directly upon the order of the returning officer.

20. On this point some very pertinent observations have been made by a Full Bench of this Court in a recent case, Banwari Gope v. Emperor Reported in AIR 1943 Pat. 18 "decided on 20th November 1942. In that case the Full Bench referred to The Colonial Sugar Refining Company, Limited v. Irving (1905) A.C. 369 and to a Calcutta Full Bench case, Sadar Ali and Others Vs. Doliluddin Ostagar, and laid down four principles: (1) Every statute which takes away or impairs a vested right acquired under the existing law, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed must be presumed to be intended not to have retrospective operation; (2) if there are words in the enactment which either expressly state or necessarily imply that the statute is to be given retrospective operation, then the Act should have retrospective operation even though the consequences may appear unjust and hard; (3) a statute is not to be construed to have a greater retrospective operation than its language renders necessary; and (4) as no person has a vested right in any course of procedure, alterations in procedure are to be retrospective, unloss there is some good reason against it. The second and third of these principles are most important in considering the present case. They lay down, in my judgment, that before an enactment can be applied retrospectively, words must be found in the enactment itself prescribing either directly or by necessary implication whether and to what extent the enactment is retrospective. In other words, in examining the question we must not go outside the four corners of the enactment. Extraneous considerations, such as the motives of the Legislature or the wording of any previous connected enactment, are out of place.

21. It follows that Mr. Lal Narayan Sinhas argument must be accepted, unless it can be held either that the petitioners rights as an elected member came not from the date of the returning officers order, but from the date of publication of the election result in the Gazette, which was subsequent to the new rules, or that there is something in the rules themselves necessarily implying an intention that they should operate retrospectively.

22. Upon the first point my view is that the. petitioners rights came into existence directly upon the returning officers order. That was the date when the petitioners rights as a member became vested in him, though it is quite true that under the Act he could apparently not function as such until his election had been gazetted. The view I have taken seems to me to follow from the provisions of Section 13(1), Local Self-Government Act. It is there provided that a member of a District e Board shall hold office for a certain period dating not from the gazette notification but from the date of the actual election. The date of election can only be the date when the election is held and the result declared. The same inference is to be drawn from the nature of the declaration which the returning officer is to make. He declares that the candidate is duly elected, and that order, as I have said, is, under the terms of the election rules, final. It seems to me that the publication in the Gazette which has to be made u/s 9 of the Act is not the operative part of the election, but is merely the means of making it public and implementing it. At most Section 9 is a legal provision setting up a pre-requisite for the exercise by the members of those rights which have already become vested in them by their election. In Parkers "Election Agent and Returning Officer," Edn. 4, at p. 395, in dealing with the question of the report to the clerk of the Crown and the public declaration of the result which has to be made by the returning officer, and which may be taken as corresponding to some extent with the report to Government by the returning officer and gazette notification in this country, the learned author observes:

It (the declaration) is to be made forthwith, and therefore must not be postponed until the next day, or delayed for any reason whatever.... t would seem that ii, contrary to this provision, the returning officer should remain silent and make no formal declaration the candidate having the majority of votes would nevertheless be duly elected (Pritchard v. Bangor, Mayor of etc. (1988) 13 A.C. 241.

23. Again, at page 401, he says:

Having returned the writ of election, the returning officer shall, as soon as possible, give public notice of the names of the candidates elected...by advertisements, placards, handbills, or such other means as he thinks best calculated to afford information to the electors. If this notice is given by placards, handbills, or posters, they must bear upon their face h the name and address of the printer and publisher, under a penalty of 100.... This notice is entirely distinct from the declaration of the result of the poll, and cannot alter the effect of a numerical majority of votes given for any candidate.

Again, at p. 404, when dealing with 6 & 7, Viet. c. 18, Section 93 and B.A. Rule 38, upon the question of receipt and entry by the clerk of the Crown, he says:

The above enactments appear to be directory merely, not mandatory, and non-compliance would therefore probably not invalidate the election.

24. In "Law and Practice of Elections and Election Petitions" by Pandit Nanak Chand, 1937, at p. 536, we find the following:

In the Bareilly District case (Hammonds Indian Election Petitions, Vol. 2, p. 42)(the petitioner urged that the election of respondent 1 should be declared void inasmuch as the regulation which requires the publication of the names of the nominated candidates in the Government Gazette, had not been complied with. The commissioners held that this was merely a technical non-compliance with the regulations and refused to avoid the election as the petitioner had failed to prove that the result of the election had been materially affected by such non-publication.

True, that was a case of non-publication of the names of the nominated candidates, not of the names of the elected members, but the principle applicable, I think, is the same, and upon the same principle it would follow that failure to publish the result of the election u/s 9 of the Act could not in itself render the election void. If, it could not, it follows that the rights of a member have accrued independently of the gazette notification, whether or not he can actually function as a member in the absence of publication.

25. Upon the above view it must be held that the learned Election Commissioner did apply the election rules retrospectively in order to interfere with rights vested in the petitioner before the said rules came into force. His order was, therefore, without jurisdiction, unless it can be held that the rules were intended to operate retrospectively. Is there anything in the rules expressly or by necessary intendment making them retroactive I have been through the entire rules very carefully, and I find only one feature in them which could possibly be made the foundation for a contention that such was the intention of Government. That feature is that an election petition is only provided for against a "returned candidate," and "returned candidate" is defined as meaning a candidate whose name has been published u/s 9 of the Act as elected. It may be said that this shows that Government contemplated that only a returned candidate was in possession of vested rights, since provision was only made for challenging such rights in the case of the returned candidate; and since "returned candidate" is defined as it was, the idea of Government must have been that until the publication in the Gazette u/s 9 no rights came into existence.

26. There is some force in this argument. But these provisions in the rules are also entirely consistent with the view that Government merely realized that the previous position was to some extent ambiguous and that it was desirable that for the future it should be clearly provided that the returned candidates rights should come into existence only upon publication. If that was Governments object, it may perhaps be doubted whether it has been achieved. Since the provisions in question are not consistent with the previously existing provisions regarding the declaration of election which were not repealed, it is a question whether these provisions could at all operate to take away even in the future such rights as may accrue upon the declaration of due election by the Returning Officer.

27. For our present purpose, however, the important point is merely this that such an intention on the part of Government is just as consistent with the rules as the intention that the rules should operate to take away pre-existing rights. If these two alternative intentions are equally consistent with the rules, neither of them can be said to be a necessary implication from them. In view of the well settled legal principles which I have already noticed, nothing short of a necessary implication of intention to be derived from a perusal of the rules themselves will have the effect of making the rules operate retrospectively so far as vested rights are concerned. That, I think, is a complete answer to the question. Neither express provision nor necessary intendment is to be found within the four corners of the rules themselves. If an inference is to be drawn at all, it is at best a possible inference, and certainly not a neces aary one. Interference with vested rights is a very serious matter. It may not shock the conscience quite so much as the case where an act lawful when committed is made unlawful retrospectively by legislation. Nevertheless, it is sufficiently opposed to prevalent ideas of equity as to have led the Courts to have laid down repeatedly that if the Legislature wishes to do a thing like this it must definitely say so, or must express itself in such a manner that no other interpretation is possible. In the present case, I am clearly of opinion that the rules must be held to be prospective only and to be applicable only to k events and rights coming into operation after they had become law. If Government did have the intention to make the rules retrospective, if they intended them to apply to all "returned candidates" as constituted by their new definition, then they should have said so clearly instead of leaving the position ambiguous. If they had that intention they have not, in my judgment, expressed it with sufficient definiteness. While the ambiguity is there, as in my judgment it is, the Courts will not adopt the retrospective construction. The present petitioner was already a returned candidate under the old law before even the new definition came into existence, and the new definition cannot alter that fact. A further question, however, now arises. Has this Court any power u/s 115, Civil P.C. to interfere in revision with the Election Commissioners orders That depends upon whether the Election Commissioner is a Court; and, if so, a Court subordinate to the High Court.

The question whether the Election Commissioner is a Court presents no real difficulty. The material considerations in determining such a question are clearly set out in the Full Bench case of this Court, Mt. Dirji v. Srimati Goalin AIR 1941 Pat. 65 . Applying the tests there specified there can be no doubt about the matter. The Election Commissioner acts judicially; ho follows the procedure of the Code of Civil Procedure, and has the powers which are vested in a Court under the CPC when trying a suit. Finally, he has the power to grant a declaration.

28. The question of subordination too presents no real difficulty. Upon this point there is a significant Full Bench decision of the Madras High Court in Kolcku Parthasaradhi Naidu Garu v. Chintlachervu Koteswara Rao Garu AIR 1924 Mad. 561 where a quotation is made from The King v. The Assessment Committee of the Metropolitan Borough of Shore-ditch (1910) 2 K.B. 859 wherein it was pointed out that subjection to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction. The existence of the limit presupposes a higher authority to determine and enforce it. An inferior tribunal cannot be permitted to determine the limits of its own jurisdiction, or to trespass beyond those limits without some power of check. That would be intolerable. In this country, in the absence of anything to the contrary, it is the High Court to which such a tribunal will be subordinate.

29. I have myself examined the position at length with regard to subordination in Arjun Bautara v. Krishna Chandra Gajapati Narayan Deo AIR 1942 Pat. 1 and it is unnecessary to repeat here what I said there. There also I referred to the very relevant observations in The King v. The Assessment Committee of the Metropolitan Borough of Shoreditch (1910) 2 K.B. 859. National Telephone Co. Ltd. v. Postmaster-General (1933) 1913 A.C. 549 is another decision relevant in this connexion.

30. In the present instance the matter is made especially clear by the terms of the rules themselves. In the rules it is not a case of the District Judge being nominated Election Commissioner as persona designata. The procedure followed, see Rule 2(g), is to define "Election Commissioner" as meaning the District Judge or Judicial Commissioner; that is to say, the District Judge when hearing a petition under the rules is not acting as persona designata, but is acting as District Judge, his jurisdiction having merely been enlarged by the rules. It is simply a case of enlarging the jurisdiction of the District Judge. This inevitably follows from the definition "Election Commissioner means the District Judge." The power of sitting as Election Commissioner is simply a new power which under the rules has been included amongst the functions of the District Judge as such. This being the position, subordination to the High Court most clearly follows, since u/s 3, Civil P.C. the District Court is always subordinate to the High Court.

31. The Election Commissioner, and a fortiori an Additional Election Commissioner, is clearly a Court subordinate to the High Court g within the meaning of Section 115, Civil P.C. and it is open to the High Court to interfere in revision in a proper case.

32. That, however, does not end the matter. The power of interference in revision is a discretionary power. It is entirely for the High Court to decide whether or not to interfere in any particular ease, and it is the practice of the High Court not to interfere in any case, unless it deems it necessary to do so in the interests of justice. It will not lightly interfere with an order which it believes upon the merits to be right. In the present instance the view I would take is that the order of the h Returning Officer was wrong. The effect of upsetting the decision of the Election Commissioner would be to restore that wrong order. The form of nomination paper prescribed by the Government is Form No. 7. Item 1 in the form is "name of the electoral circle for which the candidate is nominated." The proper description of the electoral circle would be "Electoral Circle No. 9, Police Station Barachatti." The Returning Officers only reason for rejecting the opposite partys nomination paper was that against item 1 in the form instead of the entry "Electoral Circle No. 9 police station Barachatti" the entry was "police station Baraehatti (Gaya) Circle No. 9," a mere reversal of the sequence.

No significance whatever attached to the order of mentioning the circle and the police station. Beversal of the order was a matter of no moment. It could create no confusion, nor, had the nomination paper been accepted could it have affected the result of the election. The Returning Officer apparently lost sight of Rules 68 and 69 of the 1937, rules. Rule 68(1) says "no election shall be invalidated on a point of form, provided that these rules have been substantially complied with." Rule 69 says:

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

Rule 30 specifies the grounds upon which the Returning Officer may reject a nomination paper. And Rule 30(4) says:

Nothing contained in Clause (iv) of Sub-rule (1) shall be deemed to authorise the rejection of the nomination of any candidate if notwithstanding any clerical error or misnomer or inaccurate description of any person or place in an electoral roll or in the entries made in the nomination paper, the identity of the candidate or of his proposed or second is established to the satisfaction of the Returning Officer.

33. It is true that this provision is not directly applicable, because the nomination paper was not rejected under Clause (iv) of Sub-rule (1), but under Clause (iii) of Sub-rule (1). But the principle is there.

34. It may seem wrong to restore this incorrect order and the election resulting from it. It is not, however, in my judgment, a question of of restoring the wrong order, because if the order of the Election Commissioner was wholly without jurisdiction, as I can consider it was then it had no effect and left the Returning Officers order and his declaration of election just as they were. It is rather a case of making the legal position clear.

35. Secondly, it is universally recognised that the decision of the Returning Officer has a certain finality, a finality apart from the express provision in the rules that the order shall be final. The provision is an unusual one. In the Rural District Councillors Election Rules in England, under the Local Government Act, there is no such provision: see Rogers on Election, vol. Ill, End. 21, Appendix B, p. 241. At page 246 will be found Rule 5 of Schedule 2 which deals with the decision of the Returning Officer as to validity of nomination. Rule 5(2) says:

Where the returning officer decides that a candidate has been so validly nominated, his decision shall be final and shall not be questioned in any proceeding whatsoever.

Rule 5 (3) says:

Where the returning officer decides that a candidate has not been so validly nominated, he shall endorse and sign on the nomination paper the fact and reasons for his decision.

Then Rule 5(4) says:

The decision of the returning officer under the last preceding sub-paragraph shall be subject to review on an election petition questioning the election.

Thus, in these Rural District Councils to some extent analogous to District Boards, the provision is that where the Returning Officer rejects an objection to a nomination paper and accepts the nomination, his decision shall be final. But where, as in the present case, he allows the objection and rejects the nomination, his decision is not made final.

In Hammonds "Indian Candidate and Returning Officer" will be found the Electoral Rules for the various legislative bodies in India (p. 179). At p. 236 will be found the Bihar and Orissa Rules. At p. 318, Appendix II will be found the Regulations under Rule 15. These provide for the scrutiny of nominations by the Returning Officer. There is no provision attaching any finality to the Returning Officers decision either accepting or rejecting a nomination paper.

36. Despite the absence of any express provision attaching finality to the Returning & Officers rejection of a nomination paper, it has nevertheless been frequently held that his decision can only be interfered with upon grounds of jurisdiction.

The Returning Officer in deciding upon the validity of nomination papers acts judicially. In England it is well settled that in performing such functions he is a judicial officer: see Parkers "Election Agent and Returning Officer," Edn. 4, p. 61. The true view seems to be that he partakes of both characters; that, whilst for some purposes--such as giving notices, providing polling stations, etc.--he is merely a ministerial officer; for others--such as determining objections to nomination papers and ballot papers--he is a judicial officer.

As for this country, in Sarvothama AIR 1923 Mad. 475 Rao v. Chairman, Municipal Council Saidapet it has been held that the Chairman when rejecting a nomination paper as a Returning Officer is acting in a judicial capacity.

In Rex v. Board of Education (1910) 2 K.B. 165 , Farwell L.J. says:

...in these latter days, when so many acts of Parliament refer questions of great public importance to some Government department. Such department when so entrusted becomes a tribunal charged with the performance of a public duty, and as such amenable to the jurisdiction of the High Court, within the limits now well established by law. If the tribunal has exercised the discretion entrusted to it bona fide, not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the Courts cannot interfere; they are not a Court of appeal from the tribunal, but they have power to prevent the intentional usurpation or mistaken assumption of a jurisdiction beyond that given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of extraneous considerations in arriving at their conclusion or deciding a point other than that brought before them, in which cases the Courts have regarded them as declining jurisdiction.

37. In Manindra Chandra Nandi Vs. Provas Chandra Mitter and Others, , in dealing with the decision of the Returning Officer with regard to Legislative Assembly Elections in this country, Sanderson C.J. said:

The Keturning Officer, in my judgment, considered the question which was for his determination, and in considering that question he had to put an interpretation, upon the rules to which I have referred. He may have put a wrong interpretation upon them. Or he may have put a right interpretation upon them. In these proceedings it is not for us to say whether he was right or whether he was wrong. To my mind it is clear that he did not usurp a jurisdiction which he did not possess. He did not refuse a jurisdiction which was vested in him. Nor is it suggested that he was actuated by any mala fides or extraneous circumstances. The result is that in my judgment this Court should not interfere in these proceedings and under these circumstances.

There is a Patna case, Kali Prasad Singh v. Muhutdhari Prasad Singh AIR 1933 Pat. 155 where a Bench of this Court did interfere with a decision of the Returning Officer, rejecting a nomination paper under the District Board Election Rules. It is to be observed, however, that in that case the interference was made on the express ground that the order of the Returning Officer was without jurisdiction.

38. The principles then which are to be followed by the Courts in interfering with the decision of the Returning Officer seem to be clear. They have power to interfere only where a question of jurisdiction arises. Mark it well these principles have been laid down with regard to rules where there is no express provision for finality. The position is stronger and clearer where there is a provision as in the present case, making the Returning Officers decision final. That surely means in itself that there can be no appeal from the order on the merits, and it cannot be interfered with by suit either, in such a manner as really to take the place of an appeal. The Courts do not sit in appeal to consider the order upon its merits.

If then the Returning Officer in the present case was acting within his jurisdiction and bona fide, his order, whether, right or wrong, cannot, in my judgment, be interfered with in the Courts.

Did he commit any error of jurisdiction

He is a judge of fact, and the fact in all cases within his jurisdiction is whether the requirements of the law with respect to the filling up, signature, and time of delivery of a nomination paper have in substance and in common sense, been complied with" (Parkers Election Agent and Returning Officer, Edn. 4, page 255).

He is then a judge of fact in these matters. But undoubtedly the question he has decided is one of fact.

The question whether there has been a substantial compliance with the provisions of law is one of fact to be determined according to the circumstances of each particular case." (Nanak Chands "Law and Practice of Elections and Election Petitions," 1937, p. 542, line 9).

The provisions of law referred to are those governing the validity of nomination papers.

39. It is surely clear that what the Returning Officer has done is to decide a question of fact within his jurisdiction. He is the person by whom the law contemplates that such a question should be finally decided. I can see no other meaning in the use of word "final" in the rules. I may refer once more to the case of the Rural District Councillors Election Rules where there is a provision for finality. There what the law means by the word final is made very explicit by the addition of the words "and shall not be questioned in any proceeding whatsoever" (Rogers on Elections, vol. III, Edn. 21, Appendix B, p. 246, Rule 5(2).)

40. In my judgment in the present case the Election Commissioners order being without jurisdiction the Returning Officers order still stands good, and, though were I entitled to do so I should hold it to be a wrong order on the merits, I also hold that this Court has no jurisdiction to interfere with it. In the result, therefore, I would allow this application with costs, and would set aside the order of the learned Election Commissioner.

Manohar Lall J.

41. My learned brethren Chatterji and Meredith have taken different views as to the jurisdiction of the District Judge of Gaya as an Election Commissioner under the Bihar District Board Election Petitions Rules, 1939, to declare an election void. Chatterji J. was of opinion that the District Judge had jurisdiction while Meredith J. was of the opinion that the District Judge had no jurisdiction. The case accordingly has been referred to me for decision. To determine the question in controversy it is necessary to explain how the point arose for decision.

42. The petitioner Abdul Razak and the opposite party Kuldip Narain were the only two candidates for election from Electoral Circle No. 9, police station Barachatti of the Gaya District Board in April 1939. At that time the electoral rules which were in force were the Bihar District Board Electoral Rules, 1937, promulgated on 21st June 1938. 18th April 1939 was the date fixed for scrutiny of the nomination papers of these two candidates. On the next day the Returning Officer rejected the nomination paper of Kuldip Narain on a technical ground with the result that the decision of the Returning Officer became final and the petitioner being the only candidate with an unchallenged and unchallengeable nomination paper was declared elected. The name of Abdul Razak was published in the Bihar Gazette on 18th August 1939 as provided by Section 9, Bihar and Orissa Local Self-Government Act, 1885, as it stood in 1923. But in the meantime in consequence of a decision of a Full Bench of this Court of the year 1935 reported in Lachmi Chand v. Ram Pratap AIR 1934 Pat. 670 where it was pointed out that the Local Government had failed in its duty to set up an election tribunal as contemplated by the Legislature, the Government in exercise of the powers conferred by Section 138(a), Local Self-Government Act, framed the rules which were published in the Bihar Gazette on 8th July 1939. By these rules it was provided inter alia that no election shall be called in question except by an election petition presented in accordance with these rules; that an election petition against any returned candidate may be presented to the Election Commissioner by any candidate; that an election petition against a returned candidate shall be presented to the Election Commissioner within 14 days from the date of the publication in the Bihar Gazette of the name of such candidate u/s 9 of the Act. The rules also provided elaborately for the procedure which should be adopted and in particular by Rule 16 that where in the opinion of the Election Commissioner the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper, the election of the returned candidate shall be void. It is also provided by Rule 22 that every order passed under any of the provisions of these rules shall be final. The Election Commissioner by Rule 2 is stated to mean the District Judge exercising jurisdiction over the area in which the election in e respect of which an election petition under these rules is filed was held, and a returned candidate is defined to mean the candidate whose name has been published u/s 9 of the Act as elected. It should be observed here that under the rules of 1937 which were thus amplified there was no such definition of a returned candidate as is now to be found in Rule 2(h), and, as I have stated already, there was no provision for an election tribunal to decide the dispute as to an election between the rival candidates.

43. It will be noticed that Abdul Razak was declared elected on 19th April 1939 and his f name was published in the Gazette on 18th-August 1939, that is to say, the election took place before the new rules were published in the Bihar Gazette, but the publication of the name of Abdul Razak in the Bihar Gazette took place after the new rules were notified in the Gazette. On 29th August 1939, within 14 days of the publication of the name of Abdul Razak in the Bihar Gazette, Kuldip Narain filed an election petition under the new rules before the learned District Judge of Gaya as Election Commissioner attacking in the main the rejection of his nomination paper by the Returning Officer. The Election Commissioner on 16th January 1942 held that the rejection of the nomination paper was wrong and under Rule 16(1) he declared the election of Abdul Razak as void as it had resulted from the improper rejection of the nomination paper of the opposite party. The learned District Judge points out that the only reason for rejection of the nomination paper of Kuldip Narain by the Returning Officer was that the name of the Electoral Circle was not properly described. But it is clear, as has also been pointed out by the learned District Judge, that the difference in the description as given from what ought to h have been given in the nomination paper is so slight that it could not possibly have caused any confusion as to the identity of the Electoral Circle number from which the applicant was a candidate. Meredith J. also takes the same view. The learned District Judge in the result by his order dated 16th January 1942 declared the election of the returned candidate, Abdul Razak, as void. Against this decision Abdul Razak moved this Court in civil Revision No. 89 of 1942. The matter came up for hearing before my learned brother Agarwala who by an order dated 11th August 1942 referred the case to a Division Bench as the decision was likely to affect a number of pending election petitions. Accordingly this case was heard by my learned brethren Chatterji and Meredith who have taken different views but only upon the question as to whether the District Judge had any jurisdiction to hear this election petition. My learned brethren are in agreement that the Election Commissioner is a Court and a Court subordinate to the High Court within the meaning of Section 115, Civil P.C. These questions have not been agitated before me; the only question which has been argued before me and which has to be decided is whether the District Judge had any jurisdiction to hear and determine the election petition.

44. It has now been well settled that every statute which takes away or impairs vested rights acquired under existing laws or creates a new obligation or imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past, must be presumed to be intended not to have a retrospective effect: see In re Pulborough School Board (1894) 1 Q.B. 725. It is also firmly settled that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require that construction, and this involves the subordinate rule that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary: see Lauri v. Renad (1892) 3 Ch. 402 , Reid v. Reid (1886) 31 Ch. D. 402 and In re Norman (1893) 2 Q.B. 369. I may also refer to the observation of Baron parke in Moon v. Durden (1848) 2 Ex. 22 followed in Pitambardass v. Thaokoorsidas 7 Moo. P.C. 109 that enactments in a statute are gonerally to be construed to be prospective and intended to regulate the future conduct of persons. This rule is deeply founded in good sense and strict justice and has been repeatedly acted upon in several cases. Indeed, the principle is so well recognized that it has been repeatedly laid down that in the absence of clear words to that effect a statute will not be construed as taking away a vested right of action already acquired before it was passed: see the Special Bench decision of the Calcutta High Court in Gopeshwar Pal Vs. Jiban Chandra Chandra, .

In the application of the principle that the e Court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature, the question frequently arises whether the statute does in fact take away a vested right--so that we have to bear in mind the well-settled doctrine that no suitor has a vested interest in the course of procedure or a right to complain, if during his litigation the procedure is changed, provided that no injustice be done : see Republic Costa Rica v. Erlanger (1876) 3 Ch. D. 62 and Turn bull v. Forman (1885) 15 Q.B.D. 234.

45. Lord Blackburns well-known observations in the famous case in Pinhorn v. Sousster (1852) 8 Ex. 138 may be recalled that alterations in the form of procedure are always retrospective, unless there be some good reason to the contrary, as was in Pinhorn v. Souster (1852) 8 Ex. 138. This principle again has been repeatedly recognized and applied: see the well-known and oft-repeated cases in Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 and AIR 1927 242 (Privy Council) . Reference may also be made in this connexion to the enunciation of this principle by Pazl Ali J. (now my Lord the Chief Justice) in two Special Bench cases--Sheobaran Singh v. Emperor AIR 1943 Pat. 24 and Reported in AIR 1943 Pat. 18 and the observations of my Lord the Chief Justice and Meredith J., in the recent 9 Pull Bench decision of this Court in Criminal Revns. Nos. 654, 662, 663, 770, 785, 786, 669, 717, 664, 666, 655, 715, 716, 701, 670, 718, 752, 802, 707 and 753 of 1942 and 71, 72 and Reported in AIR 1943 Pat. 245 decided on 20th April 1943 to which I was a party.

46. In Jagdamba Prasad Lalla v. Anadi Nath Roy AIR 1938 Pat. 337 decided by a Division Bench consisting of Wort J. (as he then was) and myself, I ventured to point out at page 493 four well-known canons of construction which should be borne in mind in order to decide whether an Act is retrospective or prospective: (1) There is no presumption that the statute which takes away any existing right is intended to apply to a state of facts which came into existence before its commencement. (2) When the effect of a statute would be to make a transfer valid which was previously-invalid, to make an instrument, which had no effect at all and from which the party had liberty to depart as long as he pleased, binding, the prima facie construction of the Act is that it is not to be retrospective. (3) If it is a necessary implication from the language employed that the Legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation because it is obviously competent for the Legislature if it pleases in its wisdom to make the provisions of an Act retrospective. (i) But, if on the other hand, the language employed by the Legislature is ambiguous or not clear and explicit, the Court must not give a construction to the new Act which would take away vested rights, in other words, should, treat the Act as prospective.

47. In the Full Bench case in Tika Sao v. Hari Lall AIR 1940 Pat. 385 where I took a dissentient view from my learned brethren as to whether Section 92, T.P. Act, should be held to have retrospective operation, I pointed out at p. 796 that numerous authorities have now laid down the principle that should be kept in view by the Courts when they are called upon to construe a statute which professedly alters the law and affects the rights of the litigants and referred to the cases quoted in the elaborate judgment of Roberts C.J. in the Pull Bench case in AIR 1938 Ran 306 and observed that in many cases it will be a useful guide to see the state of law which existed before the amendment was introduced and then to see if the amending Act has taken away the rights which existed in a litigant before the Act was passed.

48. We must then start with two fundamental principles in view. In the first place, no statute shall be construed so as to have a retrospective operation, unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication: see Young v. Adams (1898) A.C. 469. Even in construing a section which is to a certain extent retrospective, the maxim must be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain; and in the second place, the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts, even where the alteration which the statute makes has been disadvantageous to one of the parties--the new procedure would be presumably inapplicable where its application would prejudice rights established under the old.

What then were the rights of a defeated candidate under the Local Self-Government Act and the rules of 1937 before the rules were amended in 1939 In a very clear judgment, if I may say so, Sir Courtney-Terrell C. J. has explained the position in Lachmi Chand v. Ram Pratap AIR 1934 Pat. 670 --I am giving the relevant quotation from page 36:

It is, therefore, clearly contemplated both by the j Legislature 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 there has been material irregularity and such irregularity in the conduct of the election has materially affected the result thereof.... But the Local Government seem 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" and again at page 40:

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 B. 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 h the civil Court will be ousted.

49. Similar observations are to be found in the concurring judgment of Wort J. To borrow the language from Jenkins C. J. Bhaishanker Nanabhai v. Municipal Corporation of Bombay (1907) 31 Bom. 604 the right to have an election declared invalid is the creation of the Local Self-Government Act and it is an essential condition to the exercise of the rights which are the creation of the Act that they should be determined in the manner prescribed in the Act to which they owe their existence, and in such a case there is no ouster of the jurisdiction of the civil Courts for they never had any. There is no change of the old order of things but the new order is brought into being. Owing to the unfortunate omission of the executive authorities in obeying the clear provisions of the Act, a defeated candidate was driven to go to the civil Court as pointed out by Sir Courtney-Terrell C.J., but he is no longer in that situation since 8th July 1939.

50. Such then being the rights of a defeated candidate he must, in my opinion, have recourse to the election tribunal, a tribunal enacted under the Act and to which alone exclusive jurisdiction is given to determine an election dispute. It was no doubt in the state of the then existing law open to the defeated candidate to go to the civil Court before 8th July 1939, but in this ease he did not and, he was free to take that course. Not having done so and having a grievance to redress he could, after 8th July 1939, only knock at the door of the Election Commissioner. I am not at all impressed by the argument that the remedy which was open to him under the authorities of this Court must be pursued by him even when the authority contemplated by the Legislature was in existence on the date, 29th August 1939, when he chose to seek relief. The matter would have been entirely different if a civil suit had been actually filed before 8th July 1939, because then under the numerous cases which follow Colonial Sugar Refining Co. v. Irving 1905 A.C. 369 the rights of the plaintiff in and from the civil suit which had started could not be affected unless by very strong and clear terms expressed by the Legislature in the later rules which is totally absent here. The matter may be put in another way. By necessary intendment, the new rules must apply to those elections in which the names of the successful candidates had not been published in the Gazette before 8th July 1939. To apply the rules to those elections would be to make their provisions govern those applications where such compliance was from the start possible and practicable and the effect would be not to confiscate but to regulate see Gopeshwar Pal Vs. Jiban Chandra Chandra, --the case referred to above.) I am also supported in this view by the observations in the Full Bench decisions of this Court in Sheobaran Singh v. Emperor AIR 1943 Pat. 24 and Banwari Gope v. Emperor reported in AIR 1943 Pat. 18 . Attention may also be drawn to the Full Bench decision of six Judges of the Allahabad High Court in Fateh Chand v. Muhammad Bakhsh (1994) 16 All. 259 where it was observed that

there was much confusion in the argument in this case between a right of action and a right to have an action conducted in a particular way. The former is a vested right, the latter is merely a question of procedure in which no litigant or intending litigant has any vested right whatever.

51. I have shown above that the only right which the defeated candidate had was to have his dispute determined by an election tribunal and in the absence of an election tribunal having been set up by the Provincial Government he was forced, to go to a civil Court. Now that a tribunal has been set up he is merely following the directions of the statute. It is to be observed that here it is not the defeated candidate who is complaining but it is the successful candidate who is insisting that his opponent should have gone to a civil Court and not to an election tribunal. For these reasons, I am of opinion that the learned District Judge had full jurisdiction to entertain the election petition. I would, therefore, dismiss this application.