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Gopesh Chandra Aditya Vs. Benode Lal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1936Cal424,165Ind.Cas.606
AppellantGopesh Chandra Aditya
RespondentBenode Lal Das and ors.
Cases ReferredMerks v. Eackson
Excerpt:
- .....filled up in a prescribed form and in a prescribed manner to the chairman, 15 days before the date of election. this rule is a rule which defines one of the qualifications of a candidate. it is that he must be duly nominated by certain persons in a certain way and before certain time: see suhrawardy, j., in ratish chandra munshi v. amulya charan ghattak 1931 cal 36 at p. 90. the meaning of the proviso which is attached to the section which defines the qualifications of candidates is that the civil court's jurisdiction to adjudicate at least upon questions of qualifications of candidates shall not be taken to be affected either by anything contained in the act or the rules framed by the local government under section 296 of the act. section 9, 'civil p. c., entitled a person to.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of defendant 3 in a suit for a declaration, by the plaintiff that his nomination paper has been illegally rejected and for a further declaration that defendants 2 to 4 have not been elected as members of the Municipal Board of Sylhet.

2. The plaintiff stood as a candidate for election from Ward No. 11 of the Sylhet Municipality, as also defendants 2 to 4. The 18th April 1934 was fixed for the election. The plaintiff filed two nomination papers: one on 28th March and one on 29th March 1934. These nomination papers are admittedly not in order. On 3rd April 1934 he, however, sent a nomination paper, otherwise in order, to the Election Magistrate. As under the rules framed by the Local Government under the Assam Municipal Act, nomination papers have to be sent to the Chairman of the Municipality and not to the Magistrate, the latter sent the said nomination paper to the Municipal Office, and it is admitted that it reached the Chairman of the Municipality on 5th April 1934. The Municipal Office was closed from 30th March to 4th April. Defendants 2 to 4 had filed valid nomination papers before 30th March 1934. An objection was preferred to the validity of the nomination paper of the plaintiff. The Magistrate heard the objection under Rule 14, and held that it was not a good nomination. There being three seats, defendants 2 to 4 were declared elected after the rejection of the plaintiff's nomination paper.

3. The plaintiff filed this suit praying for the declaration set out above. In the suit the Municipal Board of Sylhet is made defendant 1, and the other defendants are the persons declared elected from Ward No. 2. The defence filed by all the defendants are on the same lines. The question on the merits is whether the plaintiff's nomination paper had been rightly rejected by the Magistrate. Two further questions have also been raised before me namely: (1) that the appeal before me is incompetent; and (2) that the civil Court has no jurisdiction to entertain a suit of this description. Both the Courts below have held that the civil Court has jurisdiction to entertain the suit, and that the plaintiff's nomination paper had been illegally rejected by the Election Magistrate. The plaintiff got a declaration that the election of defendants 2 to 4 was not valid. The judgment of the lower appellate Court was pronounced on 28th June 1934. As two Courts had held the election to be invalid the Local Government, under the Assam Municipal Act, has appointed, on 9th July 1934, some persons to be members of the Municipal Board to fill up the vacancies caused by the Courts below holding that defendants 2 to 4 have not been validly elected. One of the persons so appointed is defendant 3 who had alone filed, on 30th August 1934, the appeal to this Court.

4. The said defendant has accepted the appointment, and it is said that he is taking part in the proceedings of the Municipal Board. A preliminary objection has been taken to the competency of the appeal. It has been put on two grounds namely: (a) that the Municipal Board not being made a party to this appeal it is incompetent; and (b) that defendant 3 having accepted the appointment made by the Local Government, the appointment having proceeded on the footing that the decree made by the lower appellate Court is a good decree, cannot prefer or proceed with the appeal. I do not think that there is any substance in any of these objections. Regarding the first one defendant 3 had the undoubted right to prefer an appeal and proceed on with it. The Municipal Board, was a co-defendant. The defence of defendant 3, and of the Municipal Board was the same and the decree passed against all the defendants has proceeded upon a common ground. Defendant 3 has accordingly, by himself, the right to prefer the appeal and to proceed on with it. Regarding the second ground of the preliminary objection the position stands thus: Section 21-A, Assam Municipal Act runs thus:

If the persons entitled to elect a member or members to a Board at any election under this Act fail, within the prescribed time, duly to elect the member or the full number of members required, the Local Government, may, notwithstanding anything contained in S.10 or Section 14, appoint a member or members to make up the deficiency.

5. Section 10 which is relevant to this case, provides that at least four-fifths of the total number of members of a Municipal Board shall be elected members. It may be conceded therefore that when the Local Government exercised the powers under Section 21-A, it accepted the correctness of the decree made by the learned Subordinate Judge on 28th June 1934. The question therefore is whether defendant 3 by accepting the position of an appointed commissioner had debarred himself from appealing from that decree. In my judgment he has not debarred himself. The right of appeal given to a person by statute should not ordinarily be taken away, unless the appellant brings himself definitely within those class of cases in which it has been laid down that by his conduct he had lost the right of appeal. The principle of these cases ought not in my judgment to be extended. The right of appeal is the creature of statute, and is a very valuable right. The Courts should in my judgment be jealous in guarding that right, and ought not to curtail it. My reading of the case law on the subject is that the right of appeal is lost if (a) the decree or the order of the lower Court imposes a term or condition on the opposite party and which is for the benefit of the appellant, and (b) if the appellant accepts the benefit of the term or condition so imposed on the opposite party. That is to say, in order that a preliminary objection may succeed, the first condition is that the decree or order must be in essence a conditional decree or order conferring a benefit on the appellant. If the decree or order is not a conditional order, the principle by which an appeal is held to be barred has no application. There is no principle that a plaintiff who has got a part decree loses his right of appeal in respect of the part of his claim disallowed either by receiving payment from the judgment-debtor or by executing the decree he has obtained.

6. In such a case the decree made confers on him a benefit and by getting the decretal amount either amicably or by execution he obtains the benefit under the decree, but inasmnch as the decree so obtained is not dependent upon any term or condition connected with the dismissal of the part of his claim, he does not lose the right of appeal by realising the decretal amount, or by accepting payment from the judgment-debtor. In any event there can be no scope for a preliminary objection unless there is a benefit conferred on the appellant by the decree itself. The principle and its precise scope which I have indicated above is borne out by the decision of Sir George Rankin, C. J., in Hurry Bux Deora v. Johurmull Bhatoria 1929 Cal 796, where not only the earlier decisions of this Court on the subject, Manilal v. Harendralal Roy (1910) 12 C L J 556 and Bankim Chandra Bose v. Marium Begum 1917 Cal 546, but the English authorities are subjected to a critical analysis and close review. In the case before me no benefit has been conferred jon defendant 3 by the decree of the Subordinate Judge, and I cannot persuade myself to the position that defendant 3 has lost his right of appeal simply because the Local Government thought that the decree made by the Subordinate Judge was a correct decree, and on that footing appointed defendant 3 as a member of the Municipal Board. I accordingly overrule the preliminary objection. On the merits two points have to be considered: (1) Whether the suit lies. (2) Whether the nomination paper of the plaintiff, which reached the Chairman of the Municipality on 5th April 1934, had been rightly rejected by the Magistrate.

7. For the purpose of deciding these points it is necessary to notice and examine some of the sections of the Assam Municipal Act 1 of 1923, and the rules framed by the Local Government under Section 296 of the said Act, as also the provisions of Section 9, Civil P. C., Section 42, Specific Relief Act, and Section 14, Eastern Bengal and Assam General Clauses Act 1 of 1909. Section 12, Municipal Act, defines the persons who are entitled to vote. They must possess certain qualifications and their names must appear on the Voters' Register. Section 13 defines the circumstances which would make a person eligible for election as member of the Municipal Board. They must be persons entitled to vote at an election and must not be under the disabilities mentioned in the section. Some of these disabilities may be removed by the Local Government. The section ends with a provision in these terms: 'Provided further that nothing contained in this section nor in any rules made under the authority of this Act shall be deemed to affect the jurisdiction of civil Courts.' Section 296 empowers the Local Government to make rules for the purpose of carrying out the provisions of the Act. Sub-section (2) of the said section provides that such rules may 'determine the mode and time of election of members, the qualifications and disqualifications and registration of voters and candidates'. Rule 16 of the Election Rules framed by the Local Government authorises the Magistrate to fix the date of an election. Such date must be notified in the Assam Gazette. Rules 13, 14 and 15 are important. I will quote these rules at some length. Rule 13 runs thus:

Every person who is a candidate for election shall send his name to the Chairman in writing in form B with necessary particulars filled up in ColSection 2, 3, 4 and 5 by a date not less than fifteen days before the date fixed for election supported by the signatures in ColSection 6 and 7 of two electors in each ward in which he proposes to stand, or of the section of the Municipal voters he proposes to represent, who propose, and second his nomination.

8. The Chairman is then to prepare the preliminary list of all candidates and forward a copy thereof to the Magistrate. Rule 14 requires the Magistrate then to publish a notification fixing a date for hearing objections to candidates, such a date to be not less than three and not more than five days later than the date of the notification. The rule then states that 'the Magistrate shall hear and decide all objections to candidates and his decision shall be final.' Rule 15 requires the Chairman to publish the final list of candidates at the Municipal Office after receipt of the Magistrate's orders made under Rule 14. Rule 32 provides for election petitions to the Magistrate. He is invested with judicial powers, and is authorised either to confirm the election or set it aside and direct a fresh election to be held. Apart from the proviso to Section 13, Municipal Act, and the provisions of Section 9, Civil P. C., and Section 42, Specific Relief Act, the position is clear in respect of the jurisdiction of the civil Court to entertain a suit of the nature I have before me. In the case of Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 C B N S 336 at p. 337, Willes, J., states the principle in these words:

There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at Common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is where the statute gives the right to sue merely but provides for no particular form of remedy, there, the party can only proceed by Common law action. But there is a third class, viz. where a liability not existing at Common law is created by statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

9. There may possibly be a fourth class of cases as has been held by the Full Bench of the Patna High Court in Lachmi Chand Sochanti v. Ram Protap 1934 Pat 670. It is where a right or liability has been created by statute, but the legislature had left to another authority the appointment of a tribunal to try such liability but the tribunal so contemplated by the legislature has never been brought into existence. In such a case the subject has the right to proceed in the ordinary civil Courts, unless and until the duty of appointing a special tribunal is carried. Sir Lawrence Jenkins states the third proposition of Willes, J., in Bhai Sanker v. The Municipal Corporation Bombay (1907) 31 Bom 604 in a slightly different form. He says thus:

But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine these questions is exclusive.

10. To the same effect are the observations of Sir Ashutosh Mookerjee in Bhandi Singh v. Ramdhin Roy (1905) 2 C L J 359 which was a case coming within the first class of cases mentioned by Willes, J. In the case before me, applying these principles there would have been one answer, if there had been no proviso to Section 13. Municipalities are the creatures of statute, the right to vote and to stand as canditates flow from the statute. These rights are not, to use the expression of Willes, J., Common Law rights. The statute empowers the Local Government to set up tribunals to decide election disputes and such tribunals have been set up by the Rules by the Local Government. On the principles formulated above the jurisdiction of these tribunals would be exclusive and a party who wants to challenge an election would not have the right to commence an action in the civil Court. This would have been the result, as I have said, if there had been no proviso to Section 13, saving the jurisdiction of civil Courts. The question therefore is: Does the said proviso render inapplicable the principles I have formulated?

11. In my opinion it does. To quote the words of Sir Lawrence Jenkins, the legislature has expressly provided that the civil Courts would also have jurisdiction. Section 13, although couched in negative terms, in essence defines the qualifications of candidates. Section 296 (2) empowers the Local Government to make rules to determine the qualifications and disqualifications of candidates and for registration of candidates. He must be a person qualified to vote and not otherwise disqualified. Rule 13 requires a candidate to send in his nomination paper filled up in a prescribed form and in a prescribed manner to the Chairman, 15 days before the date of election. This rule is a rule which defines one of the qualifications of a candidate. It is that he must be duly nominated by certain persons in a certain way and before certain time: See Suhrawardy, J., in Ratish Chandra Munshi v. Amulya Charan Ghattak 1931 Cal 36 at p. 90. The meaning of the proviso which is attached to the section which defines the qualifications of candidates is that the civil Court's jurisdiction to adjudicate at least upon questions of qualifications of candidates shall not be taken to be affected either by anything contained in the Act or the rules framed by the Local Government under Section 296 of the Act. Section 9, 'Civil P. C., entitled a person to institute a suit of a civil nature in a civil Court unless the jurisdiction of the civil Court is either expressly or impliedly barred.

12. A suit for a declaration that a person was duly nominated as a candidate and that the election of his rivals is not valid is a suit of a civil nature. Such a declaration falls within Section 42, Specific Relief Act: Nishi Kanta Chaudhury v. Gopeswara Chatterjee 1926 Cal 1070. If there had been no express saving of the jurisdiction of civil Courts, the jurisdiction of civil Courts to entertain a suit which is for impugning an election would have been impliedly barred on the principle that the special tribunals set up have exclusive jurisdiction on the principles I have already noted. The fact that by Rule 32, election tribunals have been set up and provisions for election petitions made does not, in my judgment, having regard to the proviso to Section 13, modify in any way the cases decided under the provisions of the Bengal Municipal Act of 1882 which are in the same terms as the proviso to Section 13, Assam Municipal Act. It was held in these cases that civil Courts had jurisdiction to entertain suits concerning elections: Sabhapat Singh v. Abdul Gaffur (1897) 24 Cal 107, Nishi Kanta Chaudhury v. Gopeswara Chatterjee 1926 Cal 1070, and Ratish Chandra Munshi v. Amulya Charan Ghattak 1931 Cal 36. The observations of Suhrawardy, J., at p. 92 in the last mentioned case, implying that the jurisdiction of the civil Court would have been ousted if the legislature provided for election tribunals and for election petitions, are obiter, which are not binding on me. I hold that so long as the proviso in question (proviso to Section 13) is retained in the statute the jurisdiction of civil Courts is not ousted although by the rules special tribunals have been set up before which election petitions would lie. It may be that on the principle of election of remedies a party, who has approached the special tribunal and has been unsuccessful, would be prevented from re-agitating the same matter by a suit filed in a civil Court. For this proposition there is support from a considerable body of weighty authorities, amongst which may be noticed the observations of Willes, J., which I have quoted above, and the decision in Bhandi Singh v. Ramdhin Roy (1905) 2 C L J 359. I accordingly hold that the suit is maintainable in a civil Court.

13. Regarding the last point I am of opinion that the Courts below have gone wrong. Rule 13 provides that a candidate shall send to the Chairman his nomination paper 'by a date not less than fifteen days before the date fixed for election.' This rule is mandatory. In the first place the candidate must send his nomination paper to the Chairman. If he sends his nomination paper to anybody else, as in the present case to the Magistrate, he does not comply with the rule. I do not think that the fact that the Magistrate sends back the nomination paper to the Chairman would satisfy requirements of the rule. The Magistrate, when he received the nomination paper, was not bound to be prompt or to send or redirect it to the Chairman. He did so in the present case, no doubt; but that was only an act of courtesy. Rules of a pari materia have been construed very strictly. For instance where the rule required nomination papers to be delivered to the town clerk 'by the candidate himself, or his proposer or seconder,' it was held that there was no valid nomination of a candidate when the nomination paper was delivered to the town clerk by an agent of the candidate: Merks v. Eackson (1876) 1 C P D 683. But in the case before me there is a more formidable objection to the validity of plaintiff's nomination. The nomination paper reached the Chairman on 5th April; the date of the election was the 18th April; and hence there was not an interval of clear fifteen days between the date of the submission of the nomination paper and the date of election. The time mentioned therein is an essence of the thing. If there be not clear fifteen days' interval the nomination is not valid. This position is not challenged, but what is stated is that by reason of the provisions of Section 14, Eastern Bengal and Assam General Clauses Act, it must be taken that between the 5th and 18th April there was an interval of clear fifteen days. This contention has found favour with both the Courts below. I have already stated that the Municipal Office was closed from the 30th March to the 4th April and the Chairman got the plaintiff's nomination paper on the 5th April when the Municipal Office re-opened. Section 14 of the Act runs thus:

Where by any Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act of 1908 applies.

14. The saving is made because there is no analogous provision in the Limitation Act, Section 4. This section does not in terms fix the period within which the nomination paper is to be filed or to fix the last date of presenting the nomination paper. The nomination paper is not to be filed in the Municipal Office but sent to the Chairman. No doubt the last date of presenting the nomination paper can be determined by a process of calculation, by a process of subtraction. But unless the last date for putting in the nomination paper is fixed, or the period for filing it is prescribed by an authority which has the power to fix the date or prescribe the period, the section has no application. This section has no application when an act is required to be done in such a way as to leave a clear margin of a definite and stated period of time between the date of the act and the fixed date. I hold accordingly that Section 14, General Clauses Act, has no application to the case before me and it cannot be invoked for shortening the interval of fifteen days mentioned in Rule 13. I hold accordingly that the plaintiff's nomination paper was not illegally rejected by the Magistrate, and there being only three candidates validly nominated, and only three seats in Ward No. 2, the order declaring defendants 2 to 4 as duly elected was a right order. The appeal is accordingly allowed with costs, and the plaintiff's suit dismissed with costs throughout. Leave to appeal under the Letters Patent asked for is granted.

L. P. A. No. 12 of 1935.

Judgment.

15. This appeal must be dismissed for the reason that no ground has been made out, for interference with the decision of our learned brother, R.C. Mitter, J., against which it is directed. The questions arising for consideration in this appeal have been exhaustively dealt with by the learned Judge; and we do not consider it necessary to add anything to his judgment which was criticised before us at very great length, in support of the appeal. The appeal is dismissed with costs.


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