B.K. Mukherjea, J.
1. This rule is directed against a judgment of Rule 8. Simpson Esq., District Judge of Hooghly dated 2nd February 1943, passed on an election petition presented by opposite party 1 under Section 36, Bengal Municipal Act, to set aside the election of opposite parties 2 and 3 as commissioners of the Hooghly Chinsurah Municipality. The material facts are not in controversy and may be shortly stated as follows: The term of the Hooghly Chinsurah Municipality which consists of 18 commissioners including the Chairman and the Vice-chairman was normally to have expired on 14th October 1942, under Section 56(1), Bengal Municipal Act. The term was however extended under el. (5) of the section by a notification dated 6th November 1941. On 21st March 1942, the Additional District Magistrate of Hooghly in exercise of the powers conferred upon him under Section 24(3), Bengal Municipal Act, read with Rule 2(1) (a) (i) of the election rules framed under the Act fixed Sunday 8th November 1942 as the date for holding general election in all the wards of the Hooghly Chinsurah Municipality. By a subsequent order made on 11th May 1942 the date of election was changed from 8th November to 6th December 1942. The Commissioners thereupon appointed a committee under Section 21(1), Bengal Municipal Act, for the purpose of having the electoral roll prepared. On 28rd August 1942, ten out of the eighteen commissioners of the Municipality including the Chairman and the Vice Chairman resigned. On 31st August 1942, the District Magistrate of Hooghly made an order under Rule 51F (6), Defence of India Bules, superseding the municipality. The order stood as follows:
Whereas it is necessary and expedient to supersede the Hooghly Chinsurah Municipality for ensuring the due maintenance of the vital services of the said Municipality in the event of hostile attack, I the District Magistrate of Hooghly, in exercise of the powers conferred upon me by the Government of Bengal Notification No. 766 P. dated 24th January 1942, do hereby and from this date supersede the Hooghly Chinsurah Municipality under the provision of Rule 51F (6), Defence of India Rules.
During this period of supersession, all the powers and duties which may, by or under any law for the time being in force, be exercised or performed by or on behalf of the Hooghly Chinsurah Municipality shall, be exercised and performed by Babu Prosad Das Mallick, B. L. of Hooghly at present a Commissioner of the Hooghly Chinsurah Municipality.
All property vested in the Hooghly Chinsurah. Municipality shall during the period of supersession vest in the Government of Bengal.
All the members of the Hooghly Chinsurah Municipality forming the present body of Commissioners thereof, shall as from to-day, vacate their offices as such members.
The order shall take effect from 31st August 1942 and shall remain in force for the period during which the Defence of India Bules continue in force,
2. By a late order of the District Magistrate dated 80th September 1942, the period of supersession was limited till 81st March 1943. In spite of the supersession order, Mr. Prosad Das Mullick in whom all the powers and duties of the municipality vested, went on taking the necessary steps for holding the general election. The final electoral roll of the municipality was published on 3rd September 1942, and on 6th December 1942, the election was held. There were three candidates for election as commissioners in ward. No, (3) where there were two seats, and these were (1) Biswa Nath Bose, (2) Raghu Nath Mallick and (8) Narendra Nath Sen. As the result of polling, the last two were returned elected, and Biswa Nath Bose was defeated. On 16th December 1942, opposite party 1 Kartic Chandra Mallik, in his capacity as a voter in ward No. 3 filed the present petition under Section 36, Bengal Municipal Act, before the District Judge of Hooghly, challenging the validity of the election of Raghu Nath Mallik and Narendra Nath Sen. Both these successful candidates were impleaded as principal respondents in the proceeding, and Mr. Prosad Das Mallik, the petitioner before us, was made a pro forma respondent. The allegations of Kartic Chandra in substance were that there were various corrupt practices committed by Narendra Nath Sen, and that the preparation and publication of the electoral roll were irregular and not in conformity with the provisions of Section 21, Bengal Municipal Act. Prosad Das Mallik, it was further alleged, was not authorised by the vesting order to conduct the election, as required by the Bengal Municipal Act, and the relevant rules made thereunder. The prayer of Kartik in the election petition ran as follows:
Your petitioner prays that your Honour may be pleased to set aside the election of Babu Narendra Nath Sen and Babu Raghu Nath Mallick or in the alternative of Babu Narendra Nath Sen and find that corrupt practice having been resorted to by Babu Narendra Nath Sen and his agents he may be disqualified for the purpose of such fresh election as may be held under Section 42, Bengal Municipal Act.
3. After the respondents had filed their answers, the following issues were framed by the learned Judge:
(1) Is the application, under Section 36, Bengal Municipal Act, made to this Court maintainable (2) Is Babu Biswa Nath Basu a necessary party (3) Did the vesting order made by the District Magistrate Hoogly under the Defence of India Rules authorise and empower respondent 3 to publish and conduct the election on 6th December 1942 as provided in the Bengal Municipal Act and the statutory rules framed thereunder (4) Were the acts done by respondent 3 in connexion with the election, held on 6th December 1942 legal and in accordance with the provisions of the Bengal Municipal Act and the statutory rules (5) Were the Electoral Bolls of the Municipality prepared and published in accordance with law (6) Was the election held on 6th December 1942 legally and properly conducted and is it legal (7) Did respondent 1 or his men do any acts amounting to corrupt practices within the meaning of Section 29, Bengal Municipal Act (8) If respondent 1 is guilty of any corrupt practice within the meaning of Section 29 of the Act, should he be disqualified for the purpose of a fresh election?
4. The first two issues were not pressed at the time of trial. As regards the other issues, the learned Judge has only decided issue (6) and his judgment rests entirely upon the decision on that issue. In the opinion of the learned Judge, nobody had any authority to hold the election at a time when the period, of supersession of the municipality under the Defence of India Bules had not expired and no order was made by the appropriate authority for reconstitution of the municipality under Sub-clauses (b) and (c) of Rule 51F (8), Defence of India Rules.
5. It was held therefore that all the proceedings leading up to the election and the election itself were void ab initio and what purported to be an election held on 6th December 1942, was in the eye of law no election at all. In these circumstances it was not necessary to investigate the question relating to corrupt practices and so forth which were the subject-matter of the other issues. As the District Judge observed in his judgment, it was a void-election altogether, and
not an election held with authority and under law but liable to be set aside and avoided because of irregularities and illegalities in procedure.
The result was that the learned Judge declared the election to be void and the application of Kartik Chandra Mallik was allowed in those terms. It is against this order that the present rule has been obtained. Having heard the learned Advocates on both sides, it seems to us that on a short point this rule should be made absolute. We may assume for purposes of this case that the decision of the learned Judge on issue (6) is perfectly sound, and that in the absence of an order by the appropriate authority under Rule 51F (8), Defence of India Rules, it is not possible or legal to hold an, election of the Commissioners after an order superseding the municipality has been passed under Rule 51F (6), but in our opinion, this is not a matter which comes within the scope of the enquiry of the District Judge under Sections 36-89, Bengal Municipal Act, and this is not a ground upon which an election can be set aside under Section 38 of the Act. Section 36, Bengal Municipal Act, creates a special Court for the speedy disposal of election disputes. The powers of this Court have been defined and laid down in several sections of the Act, and it is within the limits thus prescribed that it exercises an exclusive jurisdiction and its decisions are final. Section 36 by itself does not indicate the grounds upon which an election petition would lie, except that the validity of an election could not be challenged on either of the two grounds specified in Clauses (a) and (b) of the proviso attached to the section. Section 37 lays down that on a petition being filed under Section 36 the District Judge or any other Judicial Officer to whom the District Judge might transfer the petition may hold such enquiry as he deems necessary in accordance with the prescribed procedure. The scope of the enquiry is to be gathered from the two sections that follow. Section 38 empowers the Judge to set aside the election of any candidate, provided any of the grounds are made out which are Specified in Clauses (a) to (d) of the section. In cases which do not come under Section 88 the only relief which the petitioner can pray for is a scrutiny of votes recorded in the election as provided in Section 39 of the Act, and under that section the Judge has got to declare that candidate to have been validly elected, who is found to have the greatest number of valid votes in his favour, after scrutiny and computation. Section 39A finally lays down that:
If a Judge after holding an enquiry under Section 37 is satisfied that no ground exists for setting aside the election in the manner provided in Section 38 or modifying it in the manner provided in Section 39, he shall confirm the election.
6. Thus it is quite clear that the enquiry contemplated by Section 37, Bengal Municipal Act, is limited and confined to the matters which are specified in Sections 38 and 39. When therefore a petition is presented for setting aside the election of a particular candidate what the election Court has got to enquire into and find is whether any fact has been established, which would bring the case within the purview of the four clauses of Section 38. The Judge is not competent to set aside the election on any other ground. In the case before us the learned District Judge has pronounced the election to be void ab initio by reason of the fact that the municipality had already been superseded and no order for constituting it was made under the Defence of India Rules. This is certainly not one of the matters which is contemplated by Section 38, Bengal Municipal Act. Mr. Chatterjee made a faint attempt to shew that it might come under Clause (c) of Section 38. We do not think that we can accept this contention as sound, and that is certainly not the view taken by the District Judge. Clause (c) of Section 38 contemplates in our opinion such irregularities in the procedure, as result from non-compliance with the provisions of the Bengal Municipal Act, or the rules framed thereunder, or errors and omissions on the part of the officer charged with carrying out the duties under the Act or the statutory rules, by reason of which the result of the election is materially affected. It does not contemplate a case where all the steps leading up to the election are unauthorised and without jurisdiction and no question arises in such cases as to the result of the election being in any way affected thereby. Our conclusion therefore is that the learned District Judge sitting as an election Court had no authority under Section 38, Bengal Municipal Act, to set aside the election on the ground that he purported to do. As there is no finding, in his judgment, which would bring the case within any of the clauses of Section 38, the judgment has got to be set aside. Dr. Basak argued that the proper remedy of the plaintiff opposite party was not to make an election petition under the Bengal Municipal Act but to file a suit in the ordinary way, if he wanted a declaration that the entire election proceedings were void for want of jurisdiction.
7. We are not called upon to decide, that matter in the present proceeding. It would certainly be open to Kartik Chandra Mallik to file a regular suit if he is so advised. Mr. Chatterjee has argued in the last resort, that even if the ground upon which the learned Judge based his decision could not be raised in a proceeding under Section 36, Bengal Municipal Act, there were specific allegations in his petition which if proved would satisfy the requirements of Clauses (a) and (c) of Section 38, Bengal Municipal Act, and he is entitled to pray for setting aside the election on these grounds. These grounds as have been said above have not been investigated by the learned Judge. Dr. Basak appearing for the petitioner does not object to an enquiry into these allegations. The entire evidence on these points, we are told, is already on the record. In these circumstances we think that the proper order to make would be to direct the District Judge to record his findings on the other issues and dispose of the case in accordance with his findings. The result is that the rule is made absolute. The judgment of the District Judge is set aside, and the case sent back in order that the learned Judge might arrive at his findings on the other issues raised in the case, and dispose of it in accordance with law. No order as to costs in this Court.
8. I agree.