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Ashutosh Chakravarty Vs. Md. Yad Hossain - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 767 of 1949
Judge
Reported inAIR1950Cal430
ActsBengal Village Self-Government (Amendment) Act, 1947 - Section 9; ;Bengal Village Self-Government Act, 1919 - Section 101; ;Bengal Village Self-Government Rules - Rules 30 to 32
AppellantAshutosh Chakravarty
RespondentMd. Yad Hossain
Appellant AdvocateBholanath Roy and ;Sushil Kumar Banerjee, Advs.
Respondent Advocate Sen Gupta and ;Jani Alam, Advs.
DispositionAppeal allowed
Excerpt:
- .....grievance is that the meeting at which the defendant was elected was presided over by a circle officer and not, as he contends should have been the case, by some member of the board who was not a candidate for election, i understand the question is almost academical now because the term of the board has expired. the plaintiff who was the previous president obtained an injunction against the defendant and the result is that he has been acting all along as the president because according to the rules he continues until a new president is elected. however, the parties insist on fighting the matter out and i proceed to give my decision. 2. briefly, the effect of the amending act of 1947 was to remove all nominated members from union board and to provide that the truncated board,.....
Judgment:

Roxburgh, J.

1. The defendant is the appellant. He was elected President of the Moregran Union Board under the provisions of Section 9 of Act X [10] of 1947 which amended the Bengal Village Self-Government Act, 1919. The plaintiff's grievance is that the meeting at which the defendant was elected was presided over by a Circle Officer and not, as he contends should have been the case, by some member of the Board who was not a candidate for election, I understand the question is almost academical now because the term of the Board has expired. The plaintiff who was the previous President obtained an injunction against the defendant and the result is that he has been acting all along as the President because according to the rules he continues until a new President is elected. However, the parties insist on fighting the matter out and I proceed to give my decision.

2. Briefly, the effect of the amending Act of 1947 was to remove all nominated members from Union Board and to provide that the truncated Board, as left, would be deemed to be the Board as from the original date of electicn and that they should meet and elect a new President. Unfortunately, Section 9(b) of the Act which provides for the holding of a meeting to elect the President is silent on the question as to who was to preside.

3. The Rules framed under the Act provide two procedures for two different cases, the substantial difference between the two being that under one the Circle Officer is to preside and under the other, a member of the Board who is not a candidate for election as President is to preside. The Circle Officer is to preside under the provisions of Rule 31 when a new election is held and after the names of the elected candidates have been published. It is to be noted that the President of the previous Board is to continue as President until the new President is elected by the new Board. In other words, although there is an existing President, he is not to preside at meetings for election of the new President. The Circle Officer is to preside. The other procedure is to provide for the case where there is no President where there is a vacancy by the death, removal etc., of a President. There the salient fact is that there is no President at all for the Board, the Vice-President acting for him. In those circumstances, Rule 37 provides that Rules 30-32 shall be followed substantially but the person to preside at the meeting for election of the new President is to be a member of the Board who is not a candidate for election. In both procedures, the meeting for the election is convened by the Circle Officer.

4. Then we have Section 9 of the new Act. In Clause (b) it copies to a large extent the wording of the rules, in particular, Rule 37. The meeting for election of the President is to be convened by the Circle Officer, the President is to be convened by the Circle Officer, the President of the original Board is to remain President until a new President is elected. Nothing whatever is said as to who is to preside at the meeting for election of the new President. The battle between the two sides is as to what is the correct view. The correct view in the first place is that the Legislature should have specifically stated who was to preside. The circumstances do not tally strictly with either of the situations provided for in the rules and referred to above. Strictly treating, there is not a newly elected Board though there is a sort of reconstituted Board with the nominated members removed, a re-constructed Board to fleet the new President, but there is an existing President. In that sense, the situation has considerable affinity with the circumstances provided for in Rules 80-82 for a new election which provide for the Circle Officer to preside at the meeting for election of the new President.

5. On the other side, it is urged that it is really a case for vacancy in presidentship and therefore the provisions of Section 37 would apply. But there is to my mind, difficulty in that Section 37 clearly contemplates a state where there is no existing President. Ordinarily, the President will preside at all meetings of the Board but where the question of election of a new President is concerned, some special provision is to be expected. It seems to me that on the law and the rules as they stand, it is very difficult to say that any irregularity was committed, no matter which system was followed. There is a definite ambiguity in the provisions of the Act. Having regard to the provisions of Section 170 of the Act, it seems to me that the Court had no power whatever to interfere with the election that had taken place. In fact, it will be tragic if Courts do interfere in this almost casual way with such elections.

6. The result is that I allow the appeal. The judgment and decree of the lower appellate Court are set aside and those of the Court of first instance are restored. The appellant in this Court will have his costs throughout.

7. Leave to appeal under Clause 15 of the Letters Patent has been asked for and is refused.


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