1. The petitioner Nemai Chandra Pal is a rate-payer of the Arambagh Municipality. He is a. voter, as also a candidate for election from Ward No. 1 of the said Municipality at the ensuing election of Commissioners. His nomination has been accepted. The opposite party No. 2 Nanda. Lal Haldar is also a 'candidate for election from Ward No. 1. At the time of the scrutiny of the nomination papers, it is, alleged, that the petitioner took an objection to the validity of the nomination paper of the respondent No. 2 on the ground that he was a person disqualified under Section 22(2) of the Bengal Municipal Act,, 1932, inasmuch as he was guilty of an offence involving moral turpitude carrying with it a sentence of imprisonment for a period of more than six, months, under Section 7(1) of Act 24 of 1946. It is alleged that he asked the Chairman of the Municipality to refer the matter to Government and to find out whether the candidature of the respondent No. 2. was approved by Government or not. It is stated that the Chairman refused to refer the matter to the State Government and accepted the nomination paper of respondent No. 2. It is said that this acceptance is illegal and that the petitioner has no other remedy open to him and he has, therefore, come up to this Court for relief.
2. This Rule was issued on 27-1-1955, calling upon the opposite parties to show cause why a Writ in the nature of Mandamus should not issue directing the opposite party No. 1 to cancel or strike out the nomination paper of respondent No. 2 and/or why a Writ in the nature of Certiorari should not issue quashing the order accepting the nomination paper of the respondent No. 2 complained of in the petition, and/or why such further or other order or orders should not be made as to this Court may seem fit and proper.
3. It appears that the facts relating to the conviction of respondent No, 2 are as follows: One Panchanan Haldar was the owner of a cloth shop at Arambagh. He was a licensed dealer and he was charged with having committed the following offences under Section 7(1) of Act 24 of 1946.
(1) That being a retail dealer of cloth, he did.not issue cash memos to all buyers;
(2) That he did not maintain stock register properly; and '
(3) That he submitted incorrect monthly returns to the Civil Supplies Department.
A copy of the judgment of the learned Magistrate of Arambagh dated 8-3-1951 is annexed to the affidavit of Nandalal Haldar affirmed on 28-2-1955. That shows that it was Panchanan Haldar who was the owner of the cloth shop and that the respondent No. 2 used to write the khatas of the shop,only because Monoranjan Roy, the accredited Ac-comitant, was temporarily not available. The learned Magistrate proceeds to say as follows:
'The other accused is aged about 29 and started writing the khatas of the shop when the employee -- Monoranjan Roy -- was not available. It appears to me that the offence of the accused persons is more due to carelessness and mismanagement than due to criminal intentions.'
''There is no allegation, or evidence that 'the accused persons sold any cloth in black market or smuggled them elsewhere. Then offence consists of non-observance of the rules of the Civil Supplies Department. Thus the offences of the accused persons are more technical than vital or real. .............Accused Nandalal Haldar is sentenced to detention till rising of the Court and to pay a fine of Rs. 50/-(Rupees fifty only), in default, R. I. for one month.'
'It is doubtful if it can be said that any 'offence' has been committed in respect of the cloths of the shop. The real offence seems to have been committed in respect of the stock-register only.'
4. In view of these facts it is not clear to me how the respondent No. 2 was either charged with or convicted of, any of the offences at all. However, I am not concerned with the correctness or otherwise of the decision of the learned Magistrate. The short point is whether upon the facts as stated above, the matter comes within the compass of Section 22(2) of the Bengal Municipal Act, 1932, That provision is as follows:
'If any person is or has been convicted by a Criminal Court of any such offence as in the opinion of the State Government involves moral turpitude and which carries with it a sentence of transportation or imprisonment for a period of more than six months such person shall not, unless the offence of which he was convicted has been pardoned, be eligible for election or appointment for five years from the date of expiration of the sentence:
Provided that, on application made by a person disqualified under this sub-section, the State Government may remove the disqualification by an order made in this behalf.',
5. Mr. Banerjee has argued that upon the facts found by the learned Magistrate, there cannot 'be said to have been any conviction upon any offence involving moral turpitude. The learned Magistrate was careful to say that the offence was more due to carelessness or mismanagement than due to any criminal intention. But the matter rests on a more wider basis than this. Under the provision of Section 22(2), not only there must be a conviction for an offence involving moral turpitude which carries with it a sentence of transportation or imprisonment for a period of more than six months, but it is the State Government which must be of the opinion that such an offence involves moral turpitude. It is the subjective opinion of the State Government that matters, and unless the State Government has expressed such an opinion, it cannot be said that a person has committed an offence which comes under the category referred to in Section 22(2). Mr. Mitter on behalf of the petitioner confessed that he is unable to prove that the offence for which the respondent No. 2 has been convicted was an offence in respect of which the State Government has expressed an opinion that it involves moral turpitude. It is, therefore, immaterial for me to consider whether this Court or any other person might come to the opinion that the particular offence involves moral turpitude. It is for the State Government to signify its intention as to whether a particular offence which carries with it the prescribed punishment, involves moral turpitude-or not. Since this Section is on the Statute, I am surprised to hear that the State Government has not so far expressed any opinion as to which offences involve moral turpitude, because, in the absence of such an opinion being expressed, the Rule is almost a dead-letter. Be that as it may, the petitioner has been unable to make out any case for bringing the matter under the provision of Section 22(2) of the said Act. Apart from this, it must be remembered that the question as to whether the petitioner at all raised this objection at the scrutiny is disputed and I cannot decide it on the conflicting affidavits. , But assuming that such an objection was raised, it is quite clear that the officer making the scrutiny had no jurisdiction to reject the nomination paper and to declare the candidate as disqualified, or to make any reference to the State Government. That is neither his duty, nor is he entitled to do so. It has been laid down in Rogers on Elections Vol. II, 20th Edition, page 63, as follows:
'The returning officer is to decide on any objection to the nomination paper, and his decision, if against the objection, is final; but if in favour of it, is subject to reversal on a petition questioning the election or return.'
'The only duty of the returning officer in such a case is to decide objections to the nomination paper itself. He has no jurisdiction to determine such a question as the qualification of a candidate, which can only be determined by an election petition. When he has once investigated the objections to any nomination paper and upheld its validity, then the candidate is validly nominated, though he be disqualified, and may be unseated on petition. See (John Pritchard v. Mayor, & c. of Bangor, (1888) 13 AC 241 (A)).'
Similar observations appear in Rogers on Municipal Elections, Vol. III, 21st Edition, page 75, where it is stated as follows:
' 'As soon as may be after the time for delivery of nomination papers has expired, the returning officer or the mayor, as the case may be, must examine the nomination papers, and decide whether the candidates have been validly nominated.'
'The only office of the mayor in such case is to decide objections to the nomination paper itself; and, it is submitted, only objections appearing on its face: He has no jurisdiction to determine such a question as the qualification of a candidate, which can only be determined by an election petition: (1888) 13 AC 241 (A). See also Harford v. Lynskey, (1899) 1 QB 852 (B).
In a decision of a Division Bench of this Court Ahmed Hossain v. Aswini Kumar Paul, 57 Cal WN 421: (AIR 1933 Cal 542) (C), it has been held that the Chairman as Returning Officer under R. 17, Bengal Municipal Rules, 1932, has no power .of scrutinising the nomination paper of a candidate for election with a view to see whether he has the necessary qualifications for election under Section 22, Bengal Municipal Act, 1932. He can determine any formal objection arising on the face of the nomination paper. Reliance was placed on the leading case of Pritchard v. Mayor etc. of Bangor (A) (Supra), as also on the case of Hobbs v. Morey, (1904) 1 KB 74 (D).
6. If the Returning Officer was not qualified I to deal with any objection except as appeared on the face of the nomination paper, it would be absurd to expect him to make a reference to the State Government with a view to disqualify one of the intending candidates who at the moment when the nomination paper was being scrutinised, did not appear to be disqualified. As I have stated above, it is not part of his duty, nor was he entitled to do so.
7. The result is that the points taken and urged before me have failed and the application must be dismissed. The Rule is discharged. Interim orders, if any, arc vacated.
8. Mr. Ranerjee says that in this case the allegations made in the petition are reckless and that thepetitioner ought to he made to pay the costs. It isstated in the petition that the respondent No. 2 wasconvicted of an offence for possessing Dhutis etc.,without a license. It appears from the judgment ofthe learned Magistrate that this was not so. Mr. Mitterhowever has pointed out that his client was misled bythe case register maintained by the Magistrate, inwhich it is stated that the crime as reported to policewas for 'possession of dhutis, sharis, shirtings andother cloths without a license'. He further points outthat his client could not get the certified copy of thejudgment, inasmuch as the prescribed period has expired and no such copies are available now, althoughthe accused might have in his possession a copy. Ithink the petitioner might have been a little morecareful and at least should have accepted the positionand altered his stand in his affidavit-in-reply. This ishowever a very peculiar provision of law in whichthe objective existence of moral turpitude is not material, but it should be moral turpitude in the opinion ofthe State Government, and the State Governmentdoes not seem to have expressed any opinion uponthe subject. Under the circumstances, people mightreasonably get confused as to the legal position. Inview of all these facts, I make no order as to costs.
9. Let the certified copy of the case register produced in Court to-day by Mr. Mitter's client be keptin the record and marked as an exhibit.