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Ashutosh Banerjee Vs. Debjyoti Burman and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Suit No. 33 of 1952
Judge
Reported inAIR1953Cal227,56CWN819
ActsCalcutta Municipal Act, 1923 - Sections 27, 30, 46 and 47(1); ;Calcutta Municipal Rules - Rules 3(1), 12, 13, 13(1), 14, 14(2) and 15
AppellantAshutosh Banerjee
RespondentDebjyoti Burman and ors.
Appellant AdvocateK.K. Basu and ;A.C. Ganguli, Advs.
Respondent AdvocateP.C. Mallik, Adv.
DispositionPetition dismissed
Cases ReferredNoor Md. v. Md. Suleihman
Excerpt:
- orderp.b. mukharji, j.1. this is an election petition under the calcutta municipal act, 1923 (bengal act 3 of 1923 as amended by the calcutta municipal act, 1950).2. the petitioner is ashutosh banerjee, a defeated candidate at the last municipal election of councillors of the corporation of calcutta whose result was published in the calcutta gazette on 1-4-1952. he was a voter at the first general election of the corporation, his name being recorded as no. 703 in part 'a' of the electoral roll of constituency no. 64. there were four other candidates of which the first respondent deb jyoti burman has been elected as the councillor of the corporation from the constituency. the third and the fourth respondents after nomination withdrew from the contest. the nomination paper of the second.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an election petition under the Calcutta Municipal Act, 1923 (Bengal Act 3 of 1923 as amended by the Calcutta Municipal Act, 1950).

2. The petitioner is Ashutosh Banerjee, a defeated candidate at the last Municipal Election of Councillors of the Corporation of Calcutta whose result was published in the Calcutta Gazette on 1-4-1952. He was a Voter at the First General Election of the Corporation, his name being recorded as No. 703 in Part 'A' of the Electoral Roll of Constituency No. 64. There were four other candidates of which the first respondent Deb Jyoti Burman has been elected as the Councillor of the Corporation from the Constituency. The third and the fourth respondents after nomination withdrew from the contest. The nomination paper of the second respondent was rejected. The contest at the Polls was, therefore, between the petitioner and the first respondent.

3. The sole ground on which the petitioner wants to set aside the election of respondent Deb Jyoti Burman is that the Returning Officer's acceptance of the nomination paper of Burman was improper and illegal.

4. A preliminary point of objection has been raised by the counsel for the respondent that this election petition is not maintainable on that ground. I propose to deal with the preliminary point first before discussing the merits of the controversy.

5. The preliminary point of objection is based on Section 48, Calcutta Municipal Act, 1923. It is argued that as the improper rejection of a nomination paper is expressly made a gound for election petition the Statute has impliedly excluded improper acceptance of nomination paper as a ground for challenging and disputing the validity of the election.

6. The answer to this preliminary point depends on the construction of Sections 46 and 47, Calcutta Municipal Act. It is true that Section 46 of the Act expressly mentions improper rejection of a nomination as a ground for disputing the validity of election. But that section also contains the words 'any other cause'. It is not unreasonable to construe the words 'any other cause' to cover the case of an improper acceptance of a nomination. A possible argument is that the words 'any other cause' should be construed 'ejusdem generis' in the sense that these words should include only such grounds as are of the same nature as indicated by the preceding categories. In other words if improper rejection of the nomination paper is expressly mentioned then by the doctrine of 'ejusdem generis' the words 'any other cause' should not be applied to include the contrary case of an improper acceptance of a nomination.

In my view improper rejection of a nomination paper and an improper acceptance of a nomination paper belong to the same category of act which can come under the doctrine of ejusdem generis & although they represent 2 contrary cases they belong to the same genus of notions. 'Ejusdem generis' rule in any event should be applied with caution so as not to unnecessarily restrict its meaning. A somewhat similar point arose for determination in the case -- 'A. B. Mitchell v. J. C. Dutt', 32 Cal WN 264, where the dispute was with regard to a nomination which had become void for failure to make the requisite nomination deposit under Section 27(3) of the Act and that void nomination was put forward as a ground for disputing the validity of election. Gregory J. after noticing the Privy, Council decision in --'Attorney General of Ontario v. Mercer', (1883) 8 AC 767 and English Court of Appeal decision in -- 'Smelting Co. of Australia v. Commr. of Inland Revenue', (1897) 1 QB 175 at p. 181 came to the same conclusion as I have done on the interpretation of the words 'any other cause'. In fact at p. 267 the learned Judge observed: 'In my opinion it will be pushing the principle of the rule of 'ejusdem generis 'too far not to do so' i.e. not to include the case of improper acceptance of a nomination,'

In the case of -- 'Noor Md. v. Md. Suleihman', reported in ILR (1947) 1 Cal 339 the Court of Appeal has made certain observations on the same point. Mitter J. at pp. 355 and 356 of that Report notices the words 'any other cause' in Section 46 of the Act and also notices the words 'irregularity of a nomination paper' in Section 47(1)(c) and expresses the view

'it would be, in my opinion, legitimate to say that those general words (relating to non-compliance with the provisions of the Act or the Rules or mistake of form used in Section 47(1)(c) ) have reference to 'any other cause' mentioned in Section 46, with the result that Section 47 does not deal either with what I have enumerated as (a) (candidate allowed to stand for election not having necessary qualification) or (c) (improper rejection of a nomination), the intention of the legislature being that in these two cases, as in the case of corrupt practices falling within Part I Schedule 2, no proof to the effect that the result of the election has been materially affected would be required to set aside the election'.

Sharpe J. at p. 364 expresses the view

'it seems therefore hardly permissible to suppose that the omission of the words 'improper rejection of a nomination' from Section 47 (1) (c) was accidental or that the legislature maintained that this specific ground should be included in the general provision of non-compliance with the provisions of the Act or the Rules or any mistake in the use of form. I agree, therefore, with the conclusion reached by my learned brother that the legislature did not intend to include the improper rejection of a nomination in Section 47 (1) (c) and consequently that the improper rejection of a nomination paper on account of non-compliance with some mandatory rule will alone justify the setting aside of the election'.

This decision of the Court of Appeal, however, was with regard to an improper rejection of a nomination paper and not as I have on the election petition the case of an improper acceptance of a nomination. It is unnecessary for me to pursue the line of the reasoning laid down by the Court of Appeal.

I consider that the substantial reason to hold in this case that the improper acceptance of a nomination paper is a ground for disputing the validity of an election can be supported by the language of Section 47 (1)(c) when it uses the expression 'the result of an election has been materially affected by any irregularity in respect of the nomination paper'. In this case there can be no doubt that if the allegation made in the election petition is true and sound the result of election has been materially affected for the simple reason that the petitioner and the first respondent Deb Jyoti Burman were the only two candidates and if respondent Burman's nomination should have been rejected then the petitioner would have been elected uncontested.

I am, therefore, of the opinion that apart from the doctrine of 'ejusdem generis' being extended to cover the case of an improper acceptance of a nomination paper within the meaning of those words 'any other cause' in Section 46 of the Act, the election of the returned candidate could be declared to be void if there is any 'irregularity in respect of a nomination paper' materially affecting the result of the election. In my judgment improper acceptance of a nomination paper is an irregularity in respect of nomination paper' within the meaning of Section 47(1)(c) of the Act and when such improper acceptance of nomination paper materially affects the result of the election it is also a ground for avoiding the election of the returned candidate. I, therefore, overrule the preliminary point of objection raised against this petition.

7. I proceed now to discuss the merits of the controversy.

8. The facts on which the main controversy in this petition is raised should be briefly stated before I formulate the point.

9. The scrutiny of the nomination papers of the respective candidates for election for this Constituency took place on 27-2-1952. Respondent Burman had filed two nomination papers. On 27-2-1952 the Returning Officer rejected one of Burman's nomination papers which was proposed by Nanigopal Chatterjee. But on the same day he accepted his other nomination paper proposed by Anil B. Pal. The circumstances in which the Returning officer accepted this nomination paper require to be carefully stated because those circumstances are said to invalidate such acceptance.

10. In the margin of this nomination paper appears the following note of the Returning officer.'None present to receive the symbol. Candidateor election agent or proposer or seconder notpresent today (11-50 A.M.).

Rejected. S.M. Bhowmik.27-2-52. CandidateCandidate and election agent turned up at 1-15 P.M. I, therefore, reopen the case. It is accepted.

S. M. Bhowmik.

27-2-52.'

What happened was that the Returning Officer endorsed his Certificate of Scrutiny assigning the symbol Building to the respondent Burman and then discovered that no one was present on behalf of Burman to receive the symbol. Thereupon he made the note on the margin of the nomination paper saying that no one was present to receive the symbol. And on that ground purported to reject the nomination paper at 11-50 a.m. When the candidate and his agent turned up later on at 1-15 p.m., he reopened the case and accepted the nomination paper.

11. Now the argument on behalf of the petitioner is that the Returning Officer haying once rejected, rightly or wrongly this nomination paper, became 'functus officio' and he had, therefore, no jurisdiction to recall or reopen the first order of rejection. The subsequent acceptance of the nomination paper by the Returning Officer is, therefore, contended to be improper, void and illegal.

12. Nomination of a candidate is a stage and a necessary and integral part of the process of election. It is governed by Section 27, Calcutta Municipal Act, 1923 (as amended by the Act of 1950). That section itself does not, however, provide for the scrutiny of nominations by the Returning Officer. Such scrutiny is provided for under the Rules framed under Section 30 of the Act 'For conduct of elections.'

13. An analysis of these relevant Rules is necessary to appreciate the nature of scrutiny and determine the points raised on the petition.

14. Under Rule 3(1) (a) and (b) the State Government shall appoint by Notification in the official gazette for each constituency a date not less than one month before the date fixed for the General Election by which the nominations of candidates shall be made and a further date not later than the seventh day after the first date mentioned for scrutiny of nominations. Under R. 9 the Returning Officer shall on receiving a nomination paper inform the person delivering the same, of the date, hour and place for scrutiny of nominations. Next comes the stage the actual scrutiny of the nominations and here the relevant Rules require to be set out in full.

15. Rule 12 provides: --

'On the date appointed by the State Government under Clause (b) of Sub-rule (1) of Rule 3 for the scrutiny of nominations, the candidates, their election agents, every proposer and every seconder of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the Adiministrative Officer may appoint, and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time.'

15A. On a proper construction of Rule 12 it is clear that 'on the date appointed' for scrutiny of nominations, the ' candidates, their election agents, every proposer and every seconder of each candidate 'may' attend at such time and place. The use of the word 'may' indicates that it is not obligatory on those persons to attend. If they do not, attend their nomination papers cannot be rejected merely on the ground of their non-attendance. In fact this rule provides that they can attend if they so choose, but they cannot be compelled to attend. The principle behind this enabling provision is obvious. It is this. The validity of the nomination paper of any candidate is a matter in which all the candidates are interested and, therefore, the Rule provides that they may attend and in fact raise objections to the nomination of any particular candidate. The rule, however, directs that the Returning Officer shall afford those persons mentioned in this Rule all reasonable facilities for examination of the nomination papers of all candidates.

16. It is not contended, nor even alleged by the petitioner in this case that he was given no facilities for examining the nomination papers of respondent Burman. That is not his case. What is stated is that this second nomination paper when subsequently accepted by the Returning Officer was done in the absence of the petitioner and in derogation of the Returning Officer's previous order of rejection. The oral evidence of the petitioner is that at the time of the acceptance of this nomination paper at 1-15 p.m. he was not present although it is not even alleged in the petition. There is, however, no rule which requires that the Returning Officer must accept the nomination paper of a candidate in the presence of other candidates.

17. Next comes Rule 13(1) which proceeds to provide:--

'13(1). The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or of his own motion, after such summary inquiry, if any, as he thinks necessary, refuse any nomination on any one or more of the following grounds, namely: --

(i) that the candidate is ineligible for election in accordance with the provisions of the Act, or

(ii) that the name of the proposer or the seconder is not registered on the electoral roll of the constituency, for which the candidate is nominated, or

(iii) that the proposer or the seconder has subscribed another nomination paper which has already been received by the returning officer, or

(iv) that there has been a failure to comply with any of the provisions of the Act or of the rules relating to the nomination of candidates, or the provisions of the Act relating to the deposit to be made by a candidate under subsection (3) of Section 27 of the Act, or

(v) that the candidate or the proposer or the seconder is not identical with the person whose electoral number is given in the nomination paper as the number of such candidate, proposer or seconder, as the case may be, or

(vi) that the signature of the candidate or the proposer or the seconder is not genuine.'

18. The irresistible conclusion from this Rule may be stated in a few brief propositions. The Returning Officer shall examine the nomination papers. That is a duty cast upon him. His second duty is to 'decide' the objections which may be made to any nomination'. In this case it is admitted that the petitioner made no objection whatever to the nomination paper of the first Respondent Burman at any stage. This Rule does not say that objection should be made in the presence of the candidate objected to although ordinarily and usually it might so happen. His third function is an enabling power to 'refuse' any nomination on the specified grounds. None of the grounds specified in Clauses (i), (ii), (iii), (iv), (v) and (vi) in Rule 13(1) exists in this case. The Returning Officer is limited to these grounds, for his refusing any nomination. He cannot refuse any nomination on any other ground. He cannot refuse a nomination only on the ground that the candidate was not present to receive symbol or only on the ground of his absence. In purporting to reject the nomination of respondent Burman in the first instance because no one was present to receive his symbol and because of the absence of him and of his proposer or seconder or election agent, the Returning Officer was attempting to exercise a jurisdiction with which he was not vested at all. Such purported action, therefore, was entirely without jurisdiction and so null and void.

19. It is necessary at this stage to refer to Rule 14 (1). That Rule provides: '14(10). The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same, and if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection'. It is clear that this rule imposes a duty on the Returning Officer to endorse on each nomination paper his decision accepting or rejecting same. In case where he rejects a nomination paper he shall record in writing a brief statement of his reasons for such rejection. The decision of rejection must always be supported by his written record of reasons for the rejections. The decision and the reasons together form part of the rejection order. The reasons of the Returning Officer in this case as I have set out, are no reasons at all in law within the grounds specified in Rule 13 (1). Therefore he cannot be deemed to have rejected this nomination paper at all. It has the same effect in law if the Returning Officer had scribbled out some unintelligible hieroglyphics on the nomination paper.

20. The analysis of the alleged first order of rejection reveals other infirmities which go to the root of the very jurisdiction of the Returning Officer. He says 'No one present to receive symbols'. That means then he must have signed the Certificate of Scrutiny assigning the symbol, in this case a Building, to the respondent Eurman. Now assignment of symbol to a candidate can only take place 'on completion of the scrutiny of nominations'. This will be clear from the following provision in Rule 15 which is in these terms:

'15. On completion of the scrutiny of nominations, the returning officer shall forthwith examine symbols selected by the candidates and if such symbols are found to conflict with each other, shall allocate the symbols in conformity as far as possible with the wishes of the candidates and if necessary by lot, and his decision in this respect shall be final. Each candidate or his election agent shall at the same time be informed of the symbol assigned to such candidate and shall be given a specimen thereof. He shall then prepare a list of valid nominations indicating therein the symbol assigned to each candidate and shall cause the said list to be affixed in some conspicuous place in his office'.

21. The allocation of symbols can, therefore, take place only after the 'completion of the scrutiny'. If he has already rejected the nomination paper, then how can he allocate symbol and complain that there is none to receive the symbol? The conclusion is that the Returning Officer far from rejecting the nomination paper had in fact accepted it in the very first instance. 'The Certificate of the Scrutiny' which the Returning Officer has signed on this nomination paper is in these terms:

'Certificate of Scrutiny'

'I have scrutinised the eligibility of the candidate, the proposer and the seconder and find that they are respectively qualified to stand for election, to propose and to second the nomination.

The symbol assigned to the candidate is Building.

Sd/- Surendra Mohan Bhowmik.

Returning Officer.

27.2.52.'

22. Its effect is clear. It says not only that he has scrutinised the eligibility of the candidate, his proposer and seconder but also that he finds they are respectively qualified to stand for election, to propose and to second the nomination. By signing this Certificate and by assigning the symbol in favour of respondent Burman, the Returning Officer accepted his nomination paper. The marginal note thereafter that as no one was present to receive the symbol it was rejected is as at best an ambiguous performance of duty. Reading the Certificate of Scrutiny and the first marginal note together I can only come to the conclusion that it amounts to acceptance of nomination paper of respondent Burman in the first instance. In my opinion when the Returning Officer signed the Certificate of Scrutiny which itself is endorsed in print on the nomination paper he endorses his decision accepting the nomination paper within Rule 14 (1).

23. I hold that in this case, there was in fact no rejection at all of the nomination paper in the first instance. That being so his subsequent marginal note could not or did not alter the fact of prime acceptance evidenced by the printed endorsement of the Certificate of Scrutiny signed by him on the nomination paper. I hold also that in case when the endorsement of the Returning Officer makes it ambiguous as to whether he rejects or accepts the nomination paper, the Court will incline in favour of construing such ambiguous order to be one of acceptance rather than one of rejection. In this view of the fact, the argument on behalf of the petitioner that the Returning Officer having once, rightly or wrongly, made an order becomes 'functus officio' and cannot reopen or recall his previous order goes against him. Because the first order of the Returning Officer in this case on the Certificate of Scrutiny must be read as one of acceptance.

24. In these circumstances and for these reasons I hold that the Returning Officer's acceptance of this nomination paper of respondent Burman was valid and lawful.

25. The point whether the Returning Officer becomes 'functus officio, the moment he passes an order for acceptance or rejection in respect of a nomination paper can only arise incidentally if it be said that the first marginal note was an unequivocal order of rejection even when read with the Certificate of Scrutiny. I propose to answer the point even if it be incidental.

26. I am unable to accept the contention that the Returning Officer becomes 'functus officio' the moment he endorses an order, whether of rejection or of acceptance. Many duties are cast upon the Returning Officer in respect of nomination papers. Under Rule 14 (2) he has the whole day appointed under Clause (b) of Sub-rule (1) of Rule 3 for completing the scrutiny. I am, therefore, of the opinion that he can exercise his right of scrutiny throughout the whole day and he is never divested of this power during that day. Having that right during the day, he can, in my view, exercise the power of scrutiny and make or recall an order as long as that is done during the day appointed for scrutiny. It is then said that it may be when he makes an order of rejection first his rival candidate would leave the place of scrutiny with the knowledge that the contesting candidate has been rejected. Then if the Returning Officer recalls the order and accepts such nomination paper which he had previously rejected, then the rival candidate may be absent at the time of such subsequent acceptance and will not be in a posi-'tion to object to such nomination. It is further contended that such a right in the Returning Officer throughout the day would mean continued presence of persons interested in a nomination throughout the whole day appointed for scrutiny even though it has once been rejected in the earlier part of the day.

27. This argument sounds more plausible than sound. It proceeds on the two broad planks, one of convenience and the other of probable prejudice to a rival candidate.

28. Question of convenience cannot alter the construction of Statutes or statutory rules if they are clear in their import. Rules 3 (1) (b), 12 and 14 (2) refer to the 'date appointed' and I do not see how the date can be cut down to a particular hour in the date when these Rules are so clear. The only argument that can be possible to throw any doubt on such construction is Form I prescribed under Rule 3(2) and the provision in Rule 9 which enjoins that the Returning Officer shall inform the hour for scrutiny. But even that argument is unavailing. Form I in para (iii) only says 'Nomination papers' will be taken up ior scrutiny at a particular hour. The Form and Rule 9 only indicate that from a particular hour and not before the scrutiny will start. That is only indicative of the 'terminus a quo' and not 'terminus ad quern.' It cannot obviously mean that the scrutiny of a particular nomination paper on pain of invalidity must be started and finished at the instant hour specified in the notice. 'That will make nonsense of the Rule in practice. It may be that scrutiny of a particular nomination paper will start much later after finishing the scrutiny of other nomination papers on the same date. This does not mean that in spite of the hour indicated the Returning Officer has not the whole date to complete the scrutiny under Rule 14(2) and Rules 12 and 13.

29. The next question is to consider if such a construction of the Rules means any prejudice to the rival candidate. I see none. A rival candidate can object to any nomination under Rule 13(1). Here is a case where there was no objection by the petitioner to the nomination paper of respondent Burman. Here the Returning Officer did not purport to reject even in the first instance assuming his first marginal note to be an order of rejection) by 'deciding' any 'objection'. Returning Officer acted 'on his own motion' under Rule 13(2). Even if there were objections by rival candidates and the returning officer decided such objections by refusing the nomination paper, then in that case also there cannot be any prejudice because the Returning Officer while revising the order of rejection as long as this further scrutiny is done during the 'date appointed' for scrutiny, will have before him a brief record of written reasons for such rejection.

It must be emphasised in this context that all what is required under Rule 13(1) is that before he rejects he must make only a 'summary enquiry' and that as 'he thinks necessary'. As long as that requirement is satisfied I do not see why he cannot revise a former order in the same date while his power of scrutiny lasts and as long as he makes the subsequent revised order if it be of rejection, after such summary enquiry as he thinks necessary. The same reasoning applies in case of a previously accepted nominated paper, the Returning Officer can revise it in the same date, but before he rejects it in revision he must make the 'summary enquiry' as 'he thinks necessary' which at least on the principle of natural justice would require notice to the candidate concerned before his previously accepted nomination is rejected.

30. The answer to this election petition, therefore, is: --

(1) Reading the Certificate of Scrutiny and the first marginal note of the Returning Officer at 11-50 A.M. and construing them together, there was in fact no rejection of the nomination paper of respondent Burman at all at any stage.

(2) At best the first marginal note of the Returning Officer at 11-50 A.M. read with his certificate of scrutiny makes it an ambiguous order of the Returning officer. In case where Returning Officer's order is ambiguous the Court will lean on the side of an interpretation that tends to favour the acceptance of the nomination and construe such ambiguous order as one of acceptance. On this principle also I hold there is no rejection of respondent Burman's nomination paper at any stage.

(3) Even if the first marginal note of the Returning Officer at 11-50 A.M. is regarded as an order of rejection of the nomination, then such a rejection not being on any of the specified grounds in Rule 13, was an action without any jurisdiction at all and, therefore, completely null and void. This is not a case in that event of an erroneous order but an order without jurisdiction. The Returning Officer, therefore, must be considered to have passed no order at all as per the first marginal note and was, therefore, free to pass the order of acceptance at 1-15 P.M. on the same nomination paper which I hold on this ground also to be valid and lawful.

(4) In any event, on an interpretation of Rule 3(1)(b) Rule 12 and finally Rule 14(2) the Returning Officer has the whole of 'the appointed date' for completing the scrutiny and he cannot be regarded at any part of that date as being divested of that power and becoming 'functus officio' as long as the date so appointed lasts, simply because he has finished scrutiny of a particular nomination paper. I will, therefore, hold that his subsequent order of acceptance, even apart from the first three grounds I have just mentioned was on that ground also valid and justified.

31. I, therefore, dismiss this election petition with costs.

32. The papers sent by the Corporation ofCalcutta to this Court in connection with thiselection petition under the Rule issued hereinwill be returned to the Corporation.


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