Manohar Lall, J.:— 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 the 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.

The petitioner Abdul Razak and the opposite-party Kuldip Narain were the only two candidates for election from Electoral Circle no. IX, 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 the 21st June, 1938. The 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 unchallengable nomination paper was declared elected. The name of Abdul Razak was published in the Bihar Gazette on the 16th August, 1939, as provided by section 9 of the 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 Lachmichand Suchanti v. Ram Pratap Choudhury 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) of the Local Self-Government Act framed the Rules which were published in the Bihar Gazette on the 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 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 under section 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 rides 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 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 under section 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.

It will be noticed that Abdul Razak was declared elected on the 19th April, 1939, and his name was published in the Gazette on the 16th 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 Eules were notified in the Gazette.

On the 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 the 16th January, 1942, held that the rejection of the nomination paper was wrong and under rule 16(1) be 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 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 the 16th January, 1942, declared the election of the returned candidate, Abdul Razak, as void. Against this decision Abdul Razak has moved this Court. The matter came up for hearing before my, learned brother Agarwala who by an order, dated the 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 of the Code of Civil Procedure. 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.

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 Pulborough School Board, In re]. 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, Reid v. Reid, Norman, In re]. I may also refer to the observation of Baron Parke in Moon v. Durden followed in Pitambardass v. Thackoorsidas that enactments in a statute are generally 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 v. Jiban Chandra Chandra].

In the application of the principle that the 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 Costa Rica v. Erlanger and Turnbull v. Forman.

Lord Blackburn's well-known observations in the famous case of Gardner v. Lucas 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. This principle again has been repeatedly recognized and applied [See the well-known and oft-repeated cases of Colonial Sugar Refining Co. v. Irving and Delhi Cloth and General Mills Co. v. Income-Tax Commissioner of Delhi]. Reference may also be made in this connection to the enunciation of this principle by Fazl Ali, J. (now my Lord the Chief Justice) in two Special Bench cases—Sheobaran Singh v. King-Emperor and Banwari Gope v. King-Emperor and the observations of my Lord the Chief Justice and Meredith, J. in the recent Special Bench decision of this Court in Gopal Marwari v. King-Emperor*, to which I was a party.

In the case of Jagdamba Prasad Lalla v. Anadi Nath Roy 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 the 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. (4) 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.

In the Full Bench case of Tika Sao v. Hari Lall where I took a dissentient view from my learned brethren as to whether section 92 of the Transfer of Property Act should be held to have retrospective operation, I pointed out at page 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 Full Bench case of the Bank of Chettinad v. Maung Aye 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.

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 I see Young v. Adams]— 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 Suchanti's case—I am giving the relevant quotation from page 36: “It is, therefore, clearly contemplated both by the 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 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.” Similar observations are to be found in the concurring judgment of Wort, J.

To borrow the language from Jenkins, C.J in Harishankar Nanabhai v. Municipal Corporation of Bombay 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.

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 than existing law open to the defeated candidate to go to the Civil Court before the 8th July, 1939, but in this case he did not and, he was free to take, that course. Not having done so and having a grievance to redress he could, after the 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 that Court must be pursued by him even when the authority contemplated by the legislature was in existence on the date, 29th August, 1939, when lie chose to seek relief.

The matter would, have been entirely different if a civil suit had been actually filed before the 8th July, 1939, because then under the numerous cases which follow the Colonial Sugar Refining Company's case 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 the 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 v. Jiban Chandra Chandra, referred to above.

I am also supported in this view by the observations in the Full Bench decisions of this Court in Sheobaran's case and Banwari's case.

Attention may also be drawn to the Full Bench decision of six Judges of the Allahabad High Court in Fateh Chand v. Muhammad Bakhsh 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”. 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.

Application dismissed.

K.D