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Dwijabar Das Vs. Haripada Biswas - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1934Cal770,152Ind.Cas.112
AppellantDwijabar Das
RespondentHaripada Biswas
Excerpt:
- .....that haripada had the requisite qualifications of a voter and that he was a resident within the union. dwijabar, plaintiff 2, is the appellant before us, plaintiff 1, krishnagopal, not having joined in the appeal.2. the controversy before us centred round the questions whether haripada was a qualified voter or not and whether he was a resident within the union of barrackpur. it appears that haripada's name was entered in the voters' list and it appears also that he has been assessed with the union rate of rs. 2 per year.3. it was contended that, as he was neither the owner nor the occupier of a building within the union, he was not legally assessable and that the assessment made on him was therefore illegal and that, accordingly, he was not qualified as a voter. this contention may be.....
Judgment:

Mallik, J.

1. This appeal arises out of a suit for setting aside an election of the defendant as the Chairman of the Barrackpur Union Board within the district of Khulna. The suit was instituted by two persons, Krishnagopal Das and Dwijabar Das, and the grounds, on which the election of the defendant, Haripada, was sought to be set aside, were, among others, that Haripada had not had the requisite qualifications of a voter according to the provisions of Section 7, Bengal Village Self-Government Act, 1919 and that he was nob a resident of the Union as contemplated by Section 7, sub-section (2) of that Act. The Court of first instance found both these points against the defendant and decreed the plaintiffs' suit. On appeal, this decision was reversed by the Court of appeal below, and the learned Subordinate Judge, who heard the appeal, dismissed the suit holding that Haripada had the requisite qualifications of a voter and that he was a resident within the Union. Dwijabar, Plaintiff 2, is the appellant before us, plaintiff 1, Krishnagopal, not having joined in the appeal.

2. The controversy before us centred round the questions whether Haripada was a qualified voter or not and whether he was a resident within the Union of Barrackpur. It appears that Haripada's name was entered in the voters' list and it appears also that he has been assessed with the Union rate of Rs. 2 per year.

3. It was contended that, as he was neither the owner nor the occupier of a building within the Union, he was not legally assessable and that the assessment made on him was therefore illegal and that, accordingly, he was not qualified as a voter. This contention may be technically correct, but, in my opinion, not so in substance. 'What happened, on this point, was this. Haripada's father was an old retired pensioner, who left all bis family affairs in the charge of his only son, Haripada. Haripada was, as it were, the karta of a joint undivided Hindu family, consisting of himself and his father and the assessment shown on Haripada was really an assessment on the family. The record shows that Haripada's father duly nominated his son to manage the family affairs. In these circumstances the first ground on which the election of the defendant was attacked was not, in my judgment, of any real substance.

4. But the same cannot be said of the other ground, namely that the defendant Haripada was not a resident within the Union. It appears that Haripada was in Government service being attached to the office of the Deputy Accountant General, Posts and Telegraph, Calcutta and it appears also that he lives in Calcutta and goes to Barrackpur only on Sundays and gazetted holidays. The question is whether in these circumstances, he can be said to be a 'resident' within the Union. I am of opinion that he cannot. A person, to be such a resident, must, according to the explanation to sub-section (2), Section 7, Bengal Village Self-Government Act, 'ordinarily reside' within its limits. A man who lives six days out of seven in the week beyond the limits of the Union and lives within the Union only on Sundays and gazetted holidays cannot be said to be ordinarily residing within the Union. 'Ordinary residence' connotes either permanent or usual abode; or in other words an abode where the person lives the greater part, if not most of his time. The learned Subordinate Judge was of the opinion that, by the occasional visits of the defendant to Barrackpur village, he was in a position to take a prominent effective part in the administration of the Union Board and that this was sufficient to give him the status of an ordinary resident within the meaning of the Explanation to sub-section (2), Section 7. The learned Subordinate Judge was perhaps thinking that the Legislature had made 'ordinary residence' within the Union a necessary qualification for a member, simply for the reason that a person, who would be ordinarily residing within the Union, would be able to take a practical and effective part in the administration of the Union Board and, as the defendant by his occasional visits could take such effective part, his occasional visits would give him the status of an ordinary resident. The simple answer to this is that if the defendant would be ordinarily residing within the limits of the Union, the part which he could take in the administration of the Union Board would have been still more effective. I am clearly of opinion that, in the circumstances of the case, the defendant Haripada, cannot be said to be a person ordinarily residing within the limits of the Union and, that being so, he was not en-titled to be a member of that Union and, not being entitled to be a member, his election as president of the Board was illegal and ultra vires.

5. As a last resort, a point was taken on behalf of the respondent that the appeal was incompetent, inasmuch as the plaintiff Krishnagopal who was a member of the Board, bad not joined in the appeal and Dwijabar, the sole appellant before us, was himself not a voter, but only a rate-payer. Apart from the question, whether a rate-payer can or cannot apply to have the election set aside, we have got sufficient materials before us to show that Dwijabar was a voter. Plaintiff 1, Krishnagopal, deposed that Dwijabar was a registered voter and his statement does not appear to have been challenged in the man's cross-examination.

6. The voters' list and the assessment list were called for and they were placed before us. In the voters' list, there was the name of Dwijabar entered. The name however was penned through and the correction purported to have been made by the Circle Officer. The signature of the officer that is to be found does not appear to be like the admitted signature of the officer. The assessment list also shows the name of Dwijabar and against his name there was a figure '4 annas'-the amount that was to be paid in a quarter and that would make the assessee a voter. The figure '4 annas' has clearly been changed to 3 annas and, in order to have the total of the page intact, three other palpable changes have been made, by which two entries each of 5 annas have been changed to 5 annas 3 pies and another 6 annas to 6 annas 6 pies. These changes are palpable and are apparently unauthorised and subsequently made. I have no hesitation therefore to hold that Dwijabar was assessed at 4 annas a quarter and he is therefore a voter. The result is that the appeal is allowed. The decree of the lower appellate Court is set aside and that of the Court of first instance, setting aside the election of Haripada, restored. The appellant will have his costs from the respondents throughout. Let the assessment list and the voters' list be sent down in a sealed cover with the record and let a copy of the judgment be sent to the District Magistrate.

Jack, J.

7. I agree.


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