James, J.The rules framed by the Local Government under the Bihar and Orissa Local Self-Government Act require that the name of the candidate for election to the District Board shall be recorded on the roll of some electoral circle within the Sub-Division in which he is a candidate.

2. Makutdhari Prosad Sinha was nominated as a candidate for election in the Kutumba-Nabinagar Circle within the Aurangabad Sub-Division, being eligible by the fact that his name was borne on the electoral roll of Aurangabad. At the time of nomination, the Returning Officer rejected the candidate on the ground that his name was not found on the electoral roll of the Kutumba-Nabinagar Circle and no certified copy of any other electoral roll had been filed by him. The rejected candidate instituted a suit in the Court of the Munsif of Aurangabad praying for a declaration u/s 42, Specific Relief Act, to the effect that the order of the Returning Officer rejecting his nomination was invalid, in which he was successful. An appeal from the Munsifs decision was dismissed by the District Judge of Gaya; and the contesting defendant now comes in second appeal from that decision.

3. Mr. Nawal Kishore Prasad on behalf of the appellant argues in the first place that civil Courts have no jurisdiction to entertain a suit of this nature. Under Rule 29 of the electoral rules framed by the Local Government, the Returning Officer is required to decide summarily regarding the qualification of candidates; and his decision is to be final. Rule 68, provides that all disputes arising under these rules, other than those in which the decision of the appointed officer is declared to be final shall be decided by the District Magistrate, and his decision shall be final. Mr. Nawal Kishore Prasad argues that Rule 68 makes the District Magistrate the tribunal for the decision of election petitions; and the fact that his decision is to be final necessarily excludes the jurisdiction of the civil Courts. It may be remarked that since the decision of the Returning Officer u/s 29 of the Act is final, it would follow that if Mr. Nawal Kishore Prasads contention were correct, no election could ever be set aside on the ground that a nomination had been improperly rejected by the Returning Officer.

4. The learned advocate cites authority for his proposition that the Local Government has power to create special tribunals for the hearing of election petitions, or for the decision of disputes that may arise in the course of elections and that when such a special tribunal is created by rules framed under the Act, the ordinary jurisdiction of the civil Courts under the Specific Relief Act is excluded. On that point generally speaking there need be no doubt; but the question is whether by the rules framed under the Act in Bihar and Orissa, the Local Government has actually set up such a tribunal to the exclusion of the civil Courts; that is to say, whether the provisions of Rule 86 do make the District Magistrate the final tribunal for the determination of such questions in general, and particularly when what has to be decided is what practically amounts to an election petition.

5. Mr. Nawal Kishore Prasad points out that similar rules framed by the Government of the Bengal were interpreted in this way by a Division Bench of the Calcutta High Court in Sibesh Chandra Pakrashi Vs. Bibi Bhusan Roy and Others, . That suit was similar in its nature to the suit with which we are here concerned; but the presiding officer had in that case rejected the nomination off the ground that the proposer and seconder were not qualified voters. The learned Judges apparently accepted the argument put forward by Dr. Radha Binode Pal, that the ordinary tribunal for the decision of election petitions would be the District Magistrate whose decision would be final. Rule 1-A, Bengal Electoral Rules, to which reference is made in that decision, corresponds practically to Rule 68, Bihar and Orissa Rules, Rule 15, Bengal Rules, corresponds practically to Rule 29 of the rules in Bihar with the same provision that the decision at the time of nomination will be final. But Rule 42 of the Bengal Rules, deals with the decision of disputes regarding qualifications of voters at an election, wherein there is no express provision that the decision shall be final. By the Bengal Rule 14 the District Magistrate is appointed to decide disputes arising under the Rules other than Rules 15, and 42; and the learned Judges treated the disputes before them as one under Rule 42, which could not be decided by the District Magistrate and in which the original decision was not by the Rules declared to be final.

6. With due respect to the learned Judges who decided that case, we may be permitted to say that, although we would not question the correctness of the decision, the grounds on which it is based are open to criticism. It appears to us that the dispute in that case was one under Rule 15; and if the making of the decision of the District Magistrate final by Rule 1-A excludes the jurisdiction of the civil Courts, there is no logical reason why the jurisdiction should not be equally held to be excluded by the finality given to the decision of the presiding officer regarding a nomination by Rule 15, At the same time, it must be observed that the learned Judges did not expressly find that the decision of the Magistrate under Rule 1-A was not liable to be challenged in the civil Court, since they were not required to do it, as they held that the case before them was not one in which the Magistrate was empowered to decide a dispute by Rule 1-A.

7. In our judgment, the view which has been taken by the lower Courts in this case is correct; the civil Courts have jurisdiction to entertain cases of this nature; and the provisions of Section 42, Specific Relief Act, apply to such suits in the absence of any express provision excluding the jurisdiction of the civil Court. It is argued that the Local Government has made the District Magistrate the Court for the hearing of election petitions; but if this had been intended the point would have been made clear by the Rules, and the jurisdiction of the civil Courts would have been expressly excluded. It appears to us that the provision in Rule 68 that disputes under the Rules are to be decided by the District Magistrates where they have not been decided already by any authority whose decision is declared to be final is only a precautionary measure to see that some authority is provided by the Rules for the decision of disputes necessary when Rules are being framed, since it is difficult to make provision for possible grounds of dispute over the observance of every rule.

8. It is no part of our duty to decide whether under Rule 68 a District Magistrate can determine the result of an election; but it appears to be obvious that even if he can do so, he is not empowered to hear election petitions which are based on anything more than some irregularity in the Electoral Rules.

9. The most common grounds on which elections of all kinds are liable to be attacked are the improper rejection or acceptance of nomination papers; bribery or corruption, intimidation, or personation discovered after the election. It does not appear that the Rules empower the Magistrate to hear petitions based on any of these grounds; but if it had been intended by that that the District Magistrate should be the exclusive Court for the hearing of election petitions, and that the jurisdiction of the civil Courts should be excluded, he would have been given general powers to entertain petitions based on more serious grounds than those of mere disputes arising under the Electoral Rules.

10. We are not required to lay down the precise circumstances in which the civil Courts may entertain a suit framed under the Specific Relief Act for a declaration at variance with the decision of a Magistrate or a Returning Officer under the Electoral Rules. As Mr. Nawal Kishore Prasad suggests, it may be unreasonable to hold that the civil Courts should reopen the whole question, when a candidate whose qualifications are really questionable, who enters into evidence before the Returning Officer, and whose claim is rejected on the ground that if more evidence had been tendered, the candidates case might have been proved.

11. The present case is not one of that nature. The Returning Officer had before him the electoral rolls of his Sub-Division; and it appears from the evidence of one of the defendants that he did examine these rolls in order to check the qualifications of those candidates whose nominations are admitted. The respondent now before the Court was correctly described in the nomination paper as on the Aurangabad roll and his number in that roll was specified. The Returning Officer, although he had the Aurangabad roll before him, examined the roll of the Kutumba-Nabinagar Circle where the candidates name would certainly not be found: but he did not examine the Aurangabad roll as he ought to have done. Rule 29(2) provides that the production of a certified copy of an entry made in the electoral roll shall be conclusive evidence of the right of any elector named in that entry to stand for election, unless it is proved that the candidate is otherwise disqualified.

12. The Returning Officer summarily rejected the nomination on the grounds, first, that the name of the candidate was not borne on an electoral roll other than that on which he claimed to be borne; and secondly, on the ground that he had produced no certified copy of the electoral roll on which he claimed to be borne.

13. It is needless to remark that if any electoral roll is to be examined by the Returning Officer, it should be that on which the candidatess name purports to be borne. It is suggested on behalf of the appellants that the Returning Officer may reasonably have thought that Rule 29(2) implied that the absence of a certified copy could be treated as if it afforded proof that the candidates name was not on the electoral roll; but no such meaning can be reasonably read into the rule, and it is impossible to hold that the Returning Officer exercised the jurisdiction which was vested in him when he thus rejected the nomination paper without making any real inquiry at all.

14. As the learned District Judge has pointed out, an order of this nature may certainly be challenged u/s 42, Specific Relief Act, because this arbitrary decision of the Returning Officer not only took away the right of the candidate to stand for election, but also deprived the electors of the exercise of their right of franchise in choosing their own representative.

15. The decision of the learned District Judge must accordingly be affirmed and this appeal must be dismissed with costs.

Fazl Ali, J.

15. I agree.