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Priyanath Ghosal Vs. Tarak Nath Datta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal727,173Ind.Cas.275
AppellantPriyanath Ghosal
RespondentTarak Nath Datta
Cases ReferredNasaruddin Mandal v. Anath Nath
Excerpt:
- .....on the ground that he is not a resident of the said union as contemplated by section 7(2), village self-government act, 1919. both the courts below have found that the defendant's election as a member and president of the union board was illegal inasmuch as he was not qualified to be a member of the union board. according to section 7, clause 2 of the act, one of the qualifications of a voter or a member of the union board is that he must be a resident within the union and the explanation states that a person shall be deemed to be a resident within the union within the meaning of sub-section 2 if he ordinarily resides within its limits. both the courts below have found that inasmuch as the defendant did not ordinarily reside within the limits of the union, he is not qualified as a voter......
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for setting aside an election of the defendant-appellant as the president of the Hariharpur Union Board on the ground that he is not a resident of the said Union as contemplated by Section 7(2), Village Self-Government Act, 1919. Both the Courts below have found that the defendant's election as a member and president of the Union Board was illegal inasmuch as he was not qualified to be a member of the Union Board. According to Section 7, Clause 2 of the Act, one of the qualifications of a voter or a member of the Union Board is that he must be a resident within the Union and the explanation states that a person shall be deemed to be a resident within the Union within the meaning of Sub-section 2 if he ordinarily resides within its limits. Both the Courts below have found that inasmuch as the defendant did not ordinarily reside within the limits of the Union, he is not qualified as a voter. This is a finding of fact with which this Court is not entitled to interfere.

2. But in this appeal it is contended that a Civil Court has no jurisdiction to decide the question as to the qualifications of a voter inasmuch as under the rules which were framed under Section 101, sub.s. 2 the Local Government has made rules determining who shall decide disputes regarding such election. Under Rule 9 of the Rules of the Village Self-Government Act

the circle officer shall ascertain whether all the candidates are duly qualified under Sub-section 2 of Section 7 of the Act and his decision on the point shall be final.

3. This is a Rule framed under Section 101, Sub-section 2, Village Self-Government Act, and according to this rule the circle officer shall be the final authority for deciding as to whether the candidates are duly qualified under Sub-section 2 of Section 7 of the Act. It appears to me that since the circle officer's decision is final, the Civil Court has no jurisdiction to interfere with his decision as to whether any of the candidates is duly qualified under Sub-section 2 of Section 7, Village Self-Government Act. The trial Court has found that the Civil Court had jurisdiction in this matter because the circle officer acted without jurisdiction. But it is not clear how he can be said to have acted without jurisdiction. He had jurisdiction to decide whether the voter was duly qualified. He may have come to a wrong decision on this point, but certainly he appears to have had jurisdiction to decide the matter and under Rule 9 of the rules his decision on this point is final.

4. This finding as to jurisdiction appears to be supported by the case in Mehendra Rahman Mia v. Kanti Chandra Basu AIR 1985 Cal 10 which refers to an analogous case coming under the Local Self-Government Act. The view taken in this case is also supported by another case decided under the Local Self-Government Act, namely the case in Kasiruddin Taluqdar v. Mafizuddin Ahmed : AIR1936Cal295 . The case referred to by the other side, namely the case in Nasaruddin Mandal v. Anath Nath AIR 1926 Cal 279 has no bearing on this case inasmuch as that case refers to Section 51, Bengal Village Self-Government Act, which is quite differently worded from the rules on which the present case must be decided.

5. The next point raised in the appeal is that the plaintiff was not competent to maintain the suit because he was not a voter. It was however admitted in the trial Court that the plaintiff was a voter so that it cannot be contended at this stage that he is not a voter.

6. The last point urged is with regard to waiver and acquiescence. The election took place 2 years ago and I am told that after six months there will be a re-election. It appears that under the amended Act the defendant will certainly be qualified for election; in these circumstances it is doubtful whether the Courts below were justified in passing the order they did when no action had been taken for 2 years. In any case, on the ground that the Civil Court had no jurisdiction in this matter, this appeal must be allowed and the decrees of the Courts below must be set aside. The appellant will get his costs in this Court as well as in the Courts below.


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