Back
1923 Supreme(Mad) 101
IN THE HIGH COURT OF MARAS
Krishnan
The Secretary Of State For India In
Versus
P. Appa Rao And Anr.
Decided On : 7 March, 1923
Before declaring a rule ultra vires, the court must establish that the rule-making authority had no power to act under the cited provision and no power at all under any law to so act.
Headnote:
Ultra Vires - Rules Framed by Governor-in-Council - The court held that before declaring a rule ultra vires, it must be established that the rule-making authority had no power to act under the cited provision and no power at all under any law to so act. If power can be found elsewhere, the rules will be referred to that power and held not to be ultra vires.
Fact of the Case:
The lower Court treated the rules framed by the Governor-in-Council as ultra vires in relation to the election of Chairman and Vice-Chairman of District Municipalities, based on the ground that they purported to have been made under a specific section of the Act.
Finding of the Court:
The Court set aside the order of the lower Court, holding that there was ample power to frame the rules objected to under a different section of the Act. The District Judge was also found to have jurisdiction to hear election petitions as expressly provided by the rules.
Issues: Validity of rules framed by the Governor-in-Council, Jurisdiction of the District Judge to hear election petitions
Ratio Decidendi: Before declaring a rule ultra vires, the court must establish that the rule-making authority had no power to act under the cited provision and no power at all under any law to so act. If power can be found elsewhere, the rules will be referred to that power and held not to be ultra vires.
Final Decision: The order of the lower Court was set aside, and the Court directed the lower Court to take the petition on to its file and dispose of it according to law. No costs were awarded for the petition.
Krishnan, J.
1. Respondents have not appeared before me in person or by counsel and I have not the advantage of hearing an argument on their side.
2. The judgment of the lower Court treating the rules framed by the Governor-in-Council and published as notification No. 1134 as ultra vires so far as they relate to the election of Chairman and Vice-Chairman of District Municipalities on the ground that they purported to have been made under Section 303(2)(b) of the Act clearly cannot be supported. Before a rule framed by a rule making authority is declared ultra vires the Court must be satisfied not only that it had no power to act under the power under which it purported to act, but also that it had no power at all under any law to so act. If power can be found elsewhere from the section quoted the rules will be referred to that power and held not to be ultra vires. This principle is recognised in Rajam Chetty v. Seshayya I.L.R. 18 M. 236 (F.B.) where the Full Beach of this Court in considering whether a rule framed for the guidance of the Presidency Small Cause Court by this Court was ultra vires or not did not confine themselves to section which was cited in the rule as authorising it but went beyond to consider whether there was any power under any other provision that would justify it and it was only after holding that there was no such power that they declared the rule ultra vires. A similar view was taken in Queen Empress v. Ganga Ram I.L.R. 16 All. 136. In the present acse as the District Judge himself remarks there was ample power to frame the rules objected to under Section 303(2)(c) and it is only an obvious mistake that Clause (c) was not also added. Such an omission does not affect the validity of the rule. See also Halsbury, Vol. 27 p. 146.
3. As to the jurisdiction of the District Judge to hear election petitions, the District Judge is right in holding that he has jurisdiction as the rules expressly give it to him.
4. The order of the lower Court is set aside and that Court is directed to take the petition on to its file and dispose it oft according to law.
5. There will be no costs for this petition.
