The respondents have not appeared before me in person, or by Counsel and I have not the advantage of hearing an argument on their side.
The judgment of the lower Court treating the rules framed by the Governor-in-Council and published as Notification No. 1134 is ultra vires, so far as they relate to the election of Chairman of the District Municipality on the ground that they purported to have been made under Sect. 302 (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 the 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, where the Full Bench of this Court, in considering whether a rule framed for the guidance of the Presidency Small Causes Court by this Court was ultra vires or not, did not confine themselves to the 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 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(2). In the present case, as the District Judge himself remarks, there was ample power to frame the rules objected to under Sect. 303 (2) (c) and it is only an obvious mistake that Cl. (c) was not also added. Such an omission does not affect the validity of the rule. See also Halsbury's Laws of England, Vol. XXVII, p. 146.
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 rule expressly gives it to him.
The order of the Lower Court is set aside and that Court is directed to take the petition on to its file and dispose of it according to law.
There will be no costs for this petition.
C.KOrder set aside.