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Radha Nath Saha Vs. Hari Mohan Saha and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal465
AppellantRadha Nath Saha
RespondentHari Mohan Saha and anr.
Cases ReferredBon Behari Mukherji v. Makhanlal Mukherji
Excerpt:
- .....j.1. this civil revision case has arisen under the following circumstances. the petitioner and the opposite party were candidates for election as commissioner from ward no. 7 of the madaripur municipality. the opposite party was enrolled as a voter in the electoral roll of ward no. 1. the petitioner states that he secured the highest number of votes and he was duly declared elected but the opposite party filed an application before the district judge contesting the election. the district judge by his order dated 8th june 1937 declared the election of the petitioner to be invalid and the opposite party to be duly elected commissioner of the madaripur municipality from ward no. 7. against that order the petitioner has obtained this rule.2. it is contended that the district judge acted.....
Judgment:

S.K. Ghose, J.

1. This civil revision case has arisen under the following circumstances. The petitioner and the opposite party were candidates for election as Commissioner from Ward No. 7 of the Madaripur Municipality. The opposite party was enrolled as a voter in the electoral roll of Ward No. 1. The petitioner states that he secured the highest number of votes and he was duly declared elected but the opposite party filed an application before the District Judge contesting the election. The District Judge by his order dated 8th June 1937 declared the election of the petitioner to be invalid and the opposite party to be duly elected Commissioner of the Madaripur Municipality from Ward No. 7. Against that order the petitioner has obtained this rule.

2. It is contended that the District Judge acted without jurisdiction in deciding the application of the opposite party under Section 39, Bengal Municipal Act 1932 and that the opposite party had no locus standi to make the application under Section 36 of the said Act. The interference of this Court is sought for under Section 115, Civil P.C. The question is whether that section applies in view of the provisions laid down in Section 39-B and Section 43, Bengal Municipal Act. Under Section 39-B the decision of the Judge in proceedings to set aside an election is final. Under Section 43 there is a bar to interference by any Court in election matters. There can be no doubt that the order complained against arose out of proceedings under Sections 36 to 40 of the Act although it is contended that the opposite party has no locus standi to make the application. It may also be conceded that, so far as the present question is concerned, the District Judge was a Civil Court subordinate to the High Court. I have been referred to certain decisions, namely the cases in Benode Behari v. Girindra Nath : AIR1934Cal536 and Nara Narayan Mondal v. Aghore Chandra Ganguli (1935) 39 CWN 971. But it is noteworthy that Section 39-B was enacted subsequent to these decisions. I have also been confronted with my decision in the case of Khudiram Kundu v. Surendra Mohan : AIR1934Cal666 which however was based on a provision of different nature under Section 93, Bengal Village Self-Government Act. The Bengal Municipal Act of 1932 was enacted after the previous sanction of the Governor-General had been obtained under Sub-section (3), Section 80-A Government of India Act and it is not contended here that the Local Act is ultra vires of the Provincial Legislature. In so far as it limits the powers conferred on this Court by the Civil Procedure Code, it is consistent with Section 4, Civil P.C. The terms of Section 39-B and Section 43 are clear. The matter was considered in Bon Behari Mukherji v. Makhanlal Mukherji (1937) 42 CWN 282 in which it was held that an order made under Section 38 (d) of the Act is final and cannot be revised by the High Court. I am unable to say that the principle upon which interference is sought for in the present case is different. It must be held that the High Court has no power to revise the order complained against under Section 115, Civil P.C. The rule must therefore stand discharged. There will be no order as to costs.

Nasim Ali, J.

3. I agree.


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