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PulIn Behari Dinda and anr. Vs. Byomkesh Mitra and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 87 and 88 of 1952
Judge
Reported inAIR1953Cal40,56CWN872
ActsBengal Municipal Act, 1932 - Sections 38 and 39; ;Constitution of India - Article 227
AppellantPulIn Behari Dinda and anr.
RespondentByomkesh Mitra and ors.
Appellant AdvocateApurba Charan Mukherjee and ;Saroj Kumar Maitra, Advs.
Respondent AdvocatePurnendu Sekhar Basu, Adv.
Excerpt:
- .....from casting their' votes because the polling booth was not opened at the proper time, that two votes were cast in the names of two dead persons that the vote cast in the name of the manager, burma shell co., was cast by somebody else than the manager and also that the vote cast in this constituency by one anil kumar kundu was invalid as he had already exercised his franchise in another constituency. in deciding the question whether these contraventions in law had materially affected the-election the learned judge thought that it should be proper to add the six votes to the person who was at the bottom of the poll and that the 4 invalid votes should be deducted from the total number of votes secured by each of the successful candidates. it was on such accounting that he came to the.....
Judgment:

K.C. Das Gupta, J.

1. In this case two persons who along with one Pulin Behari Dinda had been declared elected as municipal commissioner in the municipal election in ward no. II in Midnapore, have asked for the Court's interference under Article 227 of the Constitution with the order passed on 26-9-1951 by the Additional Subordinate Judge, Midnapore, in an application under Sections 38, Bengal Municipal Act for setting aside the election. The validity of the election was challenged on a large number of grounds. The learned Subordinate Judge held that there was no substance in most of the objections. He found however that two voters had been prevented from casting their' votes because the polling booth was not opened at the proper time, that two votes were cast in the names of two dead persons that the vote cast in the name of the Manager, Burma Shell Co., was cast by somebody else than the manager and also that the vote cast in this constituency by one Anil Kumar Kundu was invalid as he had already exercised his franchise in another constituency. In deciding the question whether these contraventions in law had materially affected the-election the learned Judge thought that it should be proper to add the six votes to the person who was at the bottom of the poll and that the 4 invalid votes should be deducted from the total number of votes secured by each of the successful candidates. It was on such accounting that he came to the conclusion that the irregularities and illegalities found by him had materially affected the result of the election.

2. It has been contended before us that the learned Judge was wrong in his view that in a municipal election a person could not vote more than once in two different wards but the main ground on which his decision was challenged was that the learned Judge should have himself opened the ballot box and counted the vote to find out in whose constituency in fact the 4 invalid votes had been cast and that it was mathematically wrong for him to deduct the 4 votes several times over from the total votes secured by the different candidates.

3. In my judgment, there is much force in this contention which has been pressed before us by Mr. Mukherj'ee on behalf of tbe petitioner and we might have been inclined to interfere if the petitioner had moved this Court within a reasonable time. Considering the great delay after which the petitioner moved this Court I have come to the conclusion that the Court's extraordinary jurisdiction under Article 227 of the Constitution should not be exercised.

4. The order setting aside the election and directing fresh election to be held was passed by the learned Subordinate Judge on 26-9-1951. This Court was not moved till 6-12-1952. It appears that on 16-11-1951, to implement the order passed by the Subordinate Judge, the District Magistrate issued an order fixing 8-3-1952 for the election and that on 14-12-1951 the commissioners of the municipality fixed the last date for nomination on 30-1-1952. It is difficult to understand why during all this time the petitioner did not think fit to move this Court. The position now is that the election has been held. It is true that the petitioner moved this Court more than 2 months before the date of election but it cannot be overlooked that the great delay made by him in moving this Court was at least in part responsible for the situation that the matter could not be taken up for hearing before the date of election. If he had moved this Court in time there would have been a reasonable chance of the matter being taken up and disposed of before 8-3-1952.

5. While the Court would not hesitate to exercise its extraordinary jurisdiction under Article 227 of the Constitution to cure defects of justice committed by tribunals in the country, the Court has to take into consideration the conduct of the party as well as the consequences which would ensue as a result of such interference. If in this case the parties had moved this Court in time, the consequences which would now result if this Court interferes with the decision of the Subordinate Judge might have been avoided. The fact of delay made by the petitioner in moving this Court is, therefore, in my opinion, a circumstance which this Court is bound to take into consideration in deciding whether it should exercise its extraordinary jurisdiction. As no special circumstances have been established to explain his delay it will be improper to act under Article 227 of the Constitution in such cases of delay. To do so would be to encourage parties to come at any time they liked. .

6. On consideration of these circumstances I have come to the conclusion that this application should be rejected. In the result these Rules are discharged. There will be no order as to costs.

Lahiri, J.

7. I agree.


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