G. N. DAS, J. :- This rule was obtained by the defendants against the decision of Mr. Subodh Chandra Mukherjee, learned Subordinate Judge, 1st Additional Court, Alipur, District 24 Parganas; whereby be decreed the suit; filed by the plaintiff for setting aside the election of ward No. V of Naihati Municipality.

2. The relevant facts are that Basudeo Paul Opposite Party No. 1 filed his nomination paper as a candidate from ward V for the impending election of the Naihati Municipality. The nomination paper was rejected by the Chairman of the Municipality; an appeal to the District Magistrate was dismissed. The election then took place and petitioner No. 1 was declared elected from the general seat in Ward V and Petitioner No. 2 was declared elected from the reserved seat. Toe opposite party No. 1 then brought the present suit being Title Suit No. 33 of 1946 in the Court of the District Judge, Alipur for a declaration that the rejection of his nomination paper by the Election Authorities of the Naihati Municipality is illegal and ultra vires and that the result of the election has been materially affected thereby and that the said election is fit to be set aside.

3. The suit was contested by petitioner No. 1 and opposite party No. 4, the Chairman of the Commissioners of the Naihati Municipality. 4. The suit was heard by the learned Sub-ordinate Judge, 1st Additional Court and was decreed.

5. Against the said decree, the petitioners moved this Court under S. 115, Civil P.C. 1903, V [5] of 1908, [hereinafter called the Code) and obtained the present rule.

6. Mr. Apurbadhan Mukherji learned advocate for the opposite party No. 1 raised a preliminary objection that this Court has no power to revise the decision complained of in view of the provisions of S. 39B [inserted by S. 13, Bengal Municipal (Amendment) Act XI [11] of 1936] and S. 43 Bengal Municipal Act XV [15] B.C. of 1932 Reliance was placed on the decisions in Bon Behary v. Mukhan Lal, ILR (1938) 2 Cal 69 : (42 C.W.N. 262 : AIR (35) 1938 Cal 768) and Radhanath Saha v. Hari Mohan Saha, 42 C.W.N. 617 : (AIR (25) 1938 Cal 465).

7. Mr. Pareshnath Mukherjee, learned advocate appearing for the petitioners conceded that the decisions did lay down the proposition that the powers of this Court to interfere with the decision of the District Judge have been taken away by Ss. 39B and 43 of the Act but contended that even though the original Act of 1932 and the amending Act of 1936 were passed with the previous sanction of the Governor-General under sub-s. (3) of S. 80A, Government if India Act, then in force the sections are ultra vires of the Provincial Legislature on the following grounds : (1) Because the said sections affected the jurisdiction conferred on this Court under S. 115 Civil P.C., 1908 and S. 106, Government of India Act. 1916 and S. 223, Government of India Act, 1915; (2) because the sections affected the jurisdiction of this Court conferred by cl. (13), Letters Patent.

8. It was submitted that the points so raised were not urged in the cases referred to and required our consideration.

9. It was submitted that a substantial question of interpretation of the Government of India Act, 1935 arose in the case we, accordingly, directed a notice to be served on the Advocate-General, Bengal in accordance with the provisions of O. 27A of the Code which was added by Act XXIII [23] of 1942.

10. Mr. Sen, the learned Senior Government Pleader has appeared in pursuance of the notice. We are indebted to him as also to the learned advocates appearing in the case for contributing their help to a somewhat difficult investigation and thus to enable us to resolve the problems falling to be determined in this case.

11. The first ground has been amplified by Mr. Pareshnath Mukherjee in the following manner : (a) The old Courts of Sadder Dewany Adalat and Supreme Court had jurisdiction to revise decisions of Provincial Courts; such jurisdiction was preserved by S. 9, High Courts Act 1861 (24 and