B.N. Nigam, J. - (1.) Ram Dularoy has filed this petition for a writ of certiorari quashing the order passed by opposite party 5 the Sub-Divisional Officer Maharajganj transferring the case to the Judicial Officer and also quashing the order passed by opposite party No. 2 dated September 11, 1961. I have heard the learned counsel for the parties.
(2.) It appears from ground No. 1 that the transfer from the court of the Sub-Divisional Officer, Maharajganj to the Judicial Officer, opposite party No. 2, was made by the District Magistrate. In writ Petition No. 3106 of 1961 Ram Babu v. The Additional Sub-Divisional Officer Chhota and another, Allahabad, decided on September 7 1962 , it has been held that rule 25 (5) of the Panchayat Raj Rules is valid. In that petition, however, it was not urged that the power of transfer was not included in the power of regulation of the hearing of the election petition. The learned counsel has, therefore, taken that ground before me. It is urged that this power of transfer could not be conferred. The learned counsel has not been able to point out any restriction imposed by any of the provisions of the Act restraining the State Government from framing such a rule. The only point urged before me is that this power might be improperly exercised inasmuch as part of the evidence may have already been recorded when the order of transfer is made. I am unable to accept the contention of the learned counsel. The validity of the power does not depend on the possibility of an abuse or an improper exercise thereof. If the power is valid, then even an improper order will have legal effect unless set aside by a proper court of appeal or revision. In the present case the argument has, no validity because a transfer of a Presiding Officer is not a ground for re-hearing of the whole case under the Code of Civil Procedure which governs the hearing of election petition as far as any Code applies. In Civil cases under Section 24, of the Code of Civil Procedure a case may be transferred by a superior court at any time whether part of the evidence has been recorded by the first court or not. It, therefore, does not appear to me that there is any force in the suggestion of the learned counsel that an order of transfer from an election tribunal operates against either party. I am, therefore, unable to see any force in this contention of the learned counsel.
(3.) It was then urged that it was not proved that the rules had been properly framed or that a suitable opportunity for preferring objections had been given or even that objections received had been properly considered. I am unable to see any force in this contention. In my opinion Section 23(5) of the U.P. General Clauses Act I of 1904 is a complete answer to this contention. It is not denied that the rules purporting to have been made in the exercise of this power have been published as final rules. As such this publication is conclusive proof that the rule has been duly made.;