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Ahmed HossaIn Vs. Aswini Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 245 of 1953
Judge
Reported inAIR1953Cal542,57CWN421
ActsBengal Municipalities Election Rules, 1932 - Rules 17, 17(1), 17(2) and 20; ;Bengal Municipal Act, 1932 - Section 22, 22(1) and 38; ;Bengal Municipal (Amendment) Act, 1951
AppellantAhmed Hossain
RespondentAswini Kumar and ors.
Appellant AdvocateNoni Coomar Chakravartty, Adv.
Respondent AdvocateAnil Kumar Sinha and ;Somendra Ch. Basu, Advs. for Nos. 1 and 2
Cases ReferredS. M. Solaiman v. Noor Mahomrnad
Excerpt:
- guha, j. 1. this is an application under article 227 of the constitution of india and section 115, civil p. c. by sheikh ahmed hossain who was a candidate for election to the garden reach municipality at its fourth general election. in order to appreciate the various points urged before us, it is necessary to set forth in some detail the relevant facts. 2. three seats were allotted for ward no. 3 of the garden reach municipality and the present petitioner was one of the candidates. his name was finally published in the final electoral roll of male voters of the same ward. the date of final publication of the electoral roll was 16-12-1951. 9-2-1952 was fixed by the chairman of the municipality as the last date for submission of nomination papers and the chairman held scrutiny qf the.....
Judgment:

Guha, J.

1. This is an application under Article 227 of the Constitution of India and Section 115, Civil P. C. by Sheikh Ahmed Hossain who was a candidate for election to the Garden Reach Municipality at its fourth general election. In order to appreciate the various points urged before us, it is necessary to set forth in some detail the relevant facts.

2. Three seats were allotted for Ward No. 3 of the Garden Reach Municipality and the present petitioner was one of the candidates. His name was finally published in the final Electoral Roll of Male Voters of the same Ward. The date of final publication of the Electoral Roll was 16-12-1951. 9-2-1952 was fixed by the Chairman of the Municipality as the last date for submission of nomination papers and the Chairman held scrutiny qf the nomination papers on 18-2-1952, and found the nomination papers of the present petitioner along with those of eleven other candidates to be valid as complying with all the requirements of Rule 17(2), Bengal Municipal Election Rules 1932 (hereinafter described as Rules of 1932),

3. Opposite Party No. 1 Aswini Kumar Paul who was another candidate preferred an appeal before the Magistrate at Alipore under Rule 20 of the said Rules against the present petitioner and others contending 'inter alia' that the petitioner was not eligible for election as a commissioner under the provisions of law as laid down in Section 22, Bengal Municipal Act, 1932, as amended by Section 5, West Bengal Act 28 of, 1951. (The amended Act will be described hereafter as the Act of 1932).

4. By an order, dated 29-2-1952, the Magistrate held that the present petitioner along with eight other candidates were disqualified under Section 22 (1) (g) of the Act of 1932 for being elected as commissioners and directed under Rule 20 the omission of the petitioner's name as well as the names of eight other candidates from the list of registered candidates for Ward No. 3. As a result of the Magistrate's order, only three nomination papers, namely, those of opposite parties Nos. 1, 2 and 3, were found to be valid for the three seats of Ward No. 3 and in the circumstances those three opposite parties were declared as duly elected as commissioners under Rule 22 of the 1932 Rules.

5. Thereupon the present petitioner filed an election petition under Section 36 of the Act of 1932 before the District Judge of Alipore praying for setting aside the entire election contending 'inter alia' that the petitioner did not suffer from any disqualification; that the rejection of his nomination paper was illegal and improper; that the result of the election owing to such improper rejection materially affected the result of election of Ward No, 3; that opposite party No. 2 was a defaulter in payment of rates and taxes for more than three months and as such disqualified under Section 22 (g) and that the election of the entire Ward No. 3 should be set aside. The case was transferred to Mr. A. N. Lahiri, Subordinate Judge, Alipore and ultimately it was dismissed by him. The findings of the learned Subordinate Judge may be summarised as follows:

'Under Rule 17 of the 1932 Rules the Chairman has the power to go into the question of the eligibility of a candidate under Section 22 of the 1932 Act and the District Magistrate's powers under Rule 20 being co-extensive with those of the Chairman, the Magistrate also has similar powers as the Chairman to decide the question of eligibility under Section 22. The material date in this connection is the last date (9-2-1952) for the submission of nomination, papers and not the date of scrutiny (18-2-52), as contended for on behalf of the plaintiff petitioner. The Magistrate was right in rejecting the nomination of the plaintiff as he was in arrears on the nomination date. Opposite Party No. 2 Md. Taher Ali Molla was not disqualified under Section 22 (1) (g) though he had paid the taxes only two days before the date of scrutiny, as he was not personally in arrears in respect of the license fee. The other successful candidates namely opposite parties Nos. 1 and 3 are not disqualified at all under Section 22. (This finding is not challenged before us). In the circumstances the result of the election in Ward No. 3 was not materially affected within the meaning of Section 38 of the Act of 1932.'

6. The first point that has been urged by Mr. Chakravartty on behalf of the petitioner is that the learned Judge is wrong in holding that the Chairman or the Magistrate has jurisdiction to go into the question of the petitioner's disqualification and reject his nomination paper on that ground. In the opinion of the learned Judge the Chairman cannot act properly as the Returning Officer under Rule 17 of the 1932 Rules unless he can reject nomination papers on the ground of ineligibility under Section 22 of the 1932 Act. His opinion further is that the powers of the Magistrate as appellate authority under Rule 20 of the 1932 Rules are co-extensive with those of the Chairman as Returning Officer with the result that the Magistrate can also, go into the question of disqualification under Section 22 and reject the nomination of a candidate on that ground, as has been done in the present case. Mr. Chakravartty's contention is that the learned Judge is right in holding that the powers of a Magistrate under Rule 20 are co-extensive with those of a Chairman under Rule 17, but he strongly contests the other proposition of the learned Judge. The main reasons put forward by Mr. Chakravartty in support of his contention that neither the Chairman under Rule 17, nor the Magistrate under Rule 20, can go into the question of disqualification of a candidate under Section 22 are briefly as follows:

(i) Rule 17, Sub-rule (3) and (4) (a) speak of the scrutiny of the 'nomination paper' of a candidate as distinguished from the scrutiny of the nomination of a candidate, thereby implying that all that the Chairman has got to satisfy himself about at the stage of the scrutiny is to see whether the nomination 'paper' is 'in form', i.e. whether it satisfied the requirements of Sub-rules (1) and (2) of the same rule and if he goes beyond those limits, i.e. if he arrogates to himself the power to go into the question of disqualification under Section 22, his action is without jurisdiction and as such void. The powers of the Magistrate under Rule 20 are also, according to Mr. Chakravartty, no larger than those of the Chairman under Rule 17,

(ii) The above view is in harmony not only with English decisions on electoral law but it also receives support from the contrasting provisions made in various Indian Statutes regarding parliamentary and Municipal elections.

(iii) The eligibility of a candidate on account of a disqualification under Section 22 of the 1932 Act can be challenged only by Section 25A (inserted in 1936) or by an election petition under Section 36 and by reason of these specific provisions the question of disqualification under Section 22 cannot be canvassed under any other provision, or agitated before any other tribunal (e.g. Chairman or Magistrate).

7. On behalf of opposite parties 1 and 2, Mr. Sinha contends briefly that both the Chairman under Rule 17 and the Magistrate under Rule 20 are competent to decide the eligibility of a candidate under Section 22 and that in any case the powers of the Magistrate under Rule 20 are not co-extensive with but are wider than those of the Chairman under Rule 17. His contention further is that in any case the Magistrate has, in view of the provisions of Rule 20, got the necessary power of deciding the eligibility of a candidate under Section 22 and if it be held to be correct that his powers as appellate authority are co-extensive with those of the Chairman, as contended for by Mr. Chakravartty, the Chairman must also be deemed to have the power to go into the question of disqualification under Section 22 when holding the scrutiny under Rule 17 (4) (a).

Mr. Sinha has drawn our attention specifically to the phrase 'the scrutiny of 'nominations'' which occur in Sub-rule 4(b) of Rule 17 and has contended therefrom that this phrase shows that the Chairman (or for the matter of that, his appellate authority, the Magistrate) is competent to go into the question of eligibility under Section 22. As regards this particular contention of Mr. Sinha, it may be pointed out at this' stage that Sub-rule 4(b) was introduced for the first time in January, 1952, whereas the other provisions in Rule 17 were there from before and it will not, therefore, be proper to construe the main provisions in Rule 17 regarding the 'scrutiny1 of 'nomination paper' in the light of the stray phrase-- 'scrutiny of nominations'. On the contrary, it will be in consonance with the principles of construction of statutes if we hold that the phrase-- 'scrutiny of nominations' -- occurring in Sub-rule 4 (b) has the same meaning as the phrase 'scrutiny of nomination papers' referred to in Sub-rules 3 and 4(a).

8. It remains now to examine the rival contentions in greater detail. The question is by no means free from difficulty. Similar problems have arisen in England and I may examine first how they have been solved there.

9. Rule 17 (4) (a) of 1932 Rules lays down that the Chairman shall scrutinise all nomination papers and shall register as candidates all those whose nomination papers are found to be valid. This is similar to Rule 9 of Schedule 3 to the Municipal Corporation Act, 1882 (45 and 46 Vict. c. 50) which runs as follows:

'The mayor shall attend at the town hall...... for delivery of nomination papers and shall decide on the validity of every objection made in writing to a nomination paper.'

10. In -- 'Pritchand v. Bangor Corporation', (1888) 13 A C 241 (A), which was decided by the House of Lords, it was held that the returning officer or mayor was to satisfy himself only of the validity of the nomination 'paper* and not of the validity of the 'nomination' as distinguished from the nomination paper, e.g. he could not go into the question of the qualification of the candidate for election. In that case Lord Watson observed (at page 252 of the report): -

'I do not think that the legislature has empowered him (i.e. the Mayor as returning officer) to deal with or intended that he should deal with every kind of objection which might be raised to a nomination paper. Schedule 3 to the Act of 1882 which contains the rules rather points to his disposing of formal objections arising upon the face of the nomination paper, and making inquiry as to whether the nominators have their names on the burgess roll and whether the paper is in statutory shape.'

The observations of Lord Herschell in this important case may also be quoted-

'Now those provisions i. e. the provisions of Schedule 3 to the Act appear to me to indicate that it could not have been intended that the mayor should entertain such a question as the qualification of a candidate, because it is impossible to suppose that the legislature provided that a question of that sort should, on, it may be, very imperfect information and without legal assistance, be finally and conclusively decided by the mayor.' (In this connection the case of --'Hobbs v. Morey', (1904) 1 KB 74 (B) may also be seen).

The rigour of the decision in the -- 'Bangor case' (A) was, however, toned town to some extent by the subsequent decision in the case of -- 'Harford v. Linskey', (1899) 1 QB 852 (C) where the following observations were made by Wright J. in delivering the judgment of the Court-- 'We do not understand it to be laid down in the -- 'Bangor Case' (A) that a nomination paper cannot ever be rejected except for informality in the form or presentation of it. If the nomination paper is, on the face of it, a mere abuse of the right of nomination or an obvious unreality as, for instance, if it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected.' In England statutory effect has now been given to the decision in the 'Bangor case' (A) (See in this connection (i) the Law relating to Local Elections in England and Wales, Edn. 3, by Dowson and Wightwick at page 49, (ii) Rogers on Elections, Vol. III, Edn 21, at page 75, and (iii) Parker's Election Agent & Returning Officer, Edn. 5, at p. 140).

11. In our opinion, so far as elections under the Bengal Municipal Act, 1932 are concerned, the powers of the Chairman, regarding determination of the eligibility of a candidate under Section 22, while holding the scrutiny are no higher than the corresponding powers of the mayor as laid down in the 'Bangor Case' (A). In other words, the Chairman acting under Rule 17 cannot decide a question of qualification. He can determine any 'formal' objection arising on the face of the nomination paper. On this view the learned Subordinate Judge was not right in holding that the 'Chairman' while holding the scrutiny could go into the question of disqualification under Section 22 of the 1932 Act.

12. The above view receives indirect support on analysis of the corresponding provisions made in various other Indian Statutes regarding election to some of which Mr. Chakravartty drew our attention. Reference may in this connection be made 'inter alia' to the provisions contained in Rule 6 of Bengal Legislative Assembly Electoral (Conduct of Elections) Rules, 1936, and the relevant certificate of scrutiny, Section 36, Representation of the People (Amendment) Act, 1950 (Central Act 73 of 1950), Rule 13 of the Rules for the conduct of Elections framed under the Calcutta Municipal Act, 1923 and the relevant certificate of Scrutiny, Rule 14, Calcutta Corporation (Conduct of Election of Councillors) Rules, 1952, framed under the Calcutta Municipal Act, 1951, Rule 4(2) of Part II--Conduct of Elections--of Bengal Act 3 of 1885 (Bengal Local Self-Government Act of 1885) and Rule 9 of the Election Rules under the Bengal Village Self-Government Act, 1919. The provisions referred to above indicate that the respective Returning Officers have been given specific power to refuse any nomination on the ground 'inter alia' that the candidate is ineligible for election for want of necessary qualification and where such power has been specifically given the Returning Officer concerned is clearly entitled to reject the nomination of a candidate on the ground that he has not the necessary qualification for election. It is noticeable, however, that neither under Rule 17 of the Election Rules under the Bengal Municipal Act, 1932, nor under the corresponding rule--being Rule 15--under the previous Act, i.e. Bengal Municipal Act 1884 was any power specifically given to the Returning Officer viz. the Chairman to reject the nomination of a candidate on the ground that he has not the requisite qualifications. This marked difference in the power of the Returning Officer under the Bengal Municipal Act, 1885 or 1932 as contrasted with the powers specifically conferred on Returning Officers under other Statutes relating to election would seem to indicate that the difference was intentional: in other words, whatever might be the reason the legislature did not intend that the Chairman as Returning Officer under Rule 17 of the 1932 Rules (or under Rule 15- of 1885 Rules) should enjoy the power of scrutinising the nomination paper of a candidate with a view to see whether he had the necessary qualifications for election.

13. The next point for consideration is whether the Magistrate who by virtue of Rule 20 of the 1032 Rules is the appellate authority from the Chairman's decision also suffers from the same limitation as the Chairman. As has been mentioned before, Mr. Chakravartty relies strongly upon the view of the learned Subordinate Judge that the Magistrate's powers are co-extensive with those of the Chairman. Mr. Chakravartty contends that as the Magistrate is only an appellate authority his powers cannot be larger than those of the Chairman. This point again is not quite free from doubt or difficulty. On a careful consideration of the language of Rule 20, we have reached, however, to the conclusion that the Magistrate's powers under Rule 20 are wider than those of the Chairman under Rule 17. Rule 20 says 'inter alia' that if any person who has filed a nomination paper disputes the right of any other candidate to be on such list, he may appeal to the Magistrate and the Magistrate shall make such order as to the omission or insertion of the name as 'appears to him to be just'. This rule is couched in very wide terms. The language of the rule is enough to show that what the Magistrate is called upon to do is not a mere mechanical act (cf. -- 'Bibhuti Bhusan v. Dwarika Nath', AIR 1943 Cal 574 (D). In the various statutes to which reference has been made before there is no corresponding provision. If the rule be read in its widest amplitude, it is clear that if it appears to him to be just, the Magistrate can reject the nomination of a candidate on the ground that he is disqualified under Section 22 of the Act (of 1932). We do not see any compelling reason why a narrow construction should be put upon the rule and the Magistrate's powers be restricted to those of the Chairman under Rule 17. It is true that Rule 20 of the 1932 Act uses the word 'appeal' instead of the word 'apply' as in Rule 15 of the 1885 Act. That does not, in our opinion, make much difference and undue importance should not, in our view, be attached to the word 'appeal'. In the context in which it appears in Rule 20, the word 'appeal' does not, in our opinion, have the same technical meaning and connotation that attach to that word ordinarily. If the legislature had intended that the Magistrate's powers should be co-extensive with those of the Chairman one would expect Rule 20 to be couched in an entirely different way.

In support of his argument that Rule 20 should be construed narrowly, Mr. Chakravorty has pointed out that the Magistrate has been given a very short period to dispose of objections urged before him. This is no doubt true and an election has to be got through within a comparatively short time. At the same time it has to be borne in mind that all that Rule 20 requires of the Magistrate is that he should dispose of all the disputes as he thinks just within the prescribed time limit. His decision is no doubt final (Sub-rule 3 of Rule 20), but the aggrieved candidate can question it later on after the election is over (Section 36 of the 1932 Act). Mr. Chakravorty has also laid stress on the well recognised principle that when a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of, and contended on the basis of that principle that Section 25A and Section 38 of the Act of 1932 having specifically laid down that the question of eligibility of a candidate under Section 22 is liable to be challenged under the procedure mentioned in those sections, the same cannot be gone into by a different tribunal as well viz. by the Magistrate under Rule 20. In this connection Mr. Chakravorty has drawn our attention to the following observations of Sir Lawrence Jenkins in the case of -- 'Bhai Sankar v. Municipal Corporation of Bombay', 31 Bom 604 (E)-

'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 those questions is exclusive.'

The contention is not without some force but there is nothing in Rule 20 debarring the Magistrate to go into the question of eligibility. Rule 20 deals with 'pre-election' challenge to the eligibility of a candidate, while Sections 25A and 36 deal with post-election challenge to eligibility. Read in that light there is nothing contradictory in Rule 20 on the one hand, and Sections 25A and 36 on the other: the one is complementary to the other. Looking at the matter from a different standpoint there is nothing wrong if we construe Rule 20 as conferring power on an impartial and competent public functionary like the District Magistrate to see that the process of election is not reduced to a mockery by allowing, say, a lunatic, a person under 21, an undischarged insolvent or a municipal officer, to cause harassment, expense and trouble to all concerned including not only the candidates but also the electorate. A narrow construction of Rule 20 will reduce the District Magistrate to the position of a helpless on-looker of what may be no better than a farce. A pre-poll brake on the pranks of an over enthusiastic but misguided candidate is by no means undesirable on principle. There is no compelling reason why Rule 20 should be construed in that narrow way. We hold, therefore, that the District Magistrate's powers are not co-extensive with those of the Chairman and that the former has, while the latter has not, the power of scrutinising the eligibility of a candidate under Section 22. Provided that the formalities laid down in Rule 17, Sub-rules (1) and (2) have been observed, the District Magistrate has, in our opinion, the power to insert in the list of candidates the name of a candidate who has been wrongly omitted from such list. He has also similar powers of omission of the name of a candidate who is not eligible for election by reason of Section 22.

14. In this connection Mr. Chakravorty drew our attention to the observations of Costello J. in the case of -- 'Rathis Chandra v. Amulya Charan', AIR 1931 Cal 36 (F), but we find nothing there which can be said to be against our view as set forth above. On the contrary the observations in question seem, to lend support to our view of the matter.

15. Overruling, therefore, the contention ofMr. Chakravorty we hold that it was within thecompetence of the Magistrate to reject thenomination paper of the present petitioner, even'though it had been accepted by the Chairman.

16. Mr. Chakravorty has next contended that even assuming that the Magistrate was competent to go into the question of disqualification of a candidate he (i.e. the Magistrate) was wrong in holding that the petitioner was in arrears at the material time for more than three months in payment of municipal taxes as required under the amended Section 22, Bengal Municipal Act, 1932. It has been found that the petitioner was in arrears for more than three months on 9-2-1952 which was the last date for submission of nomination papers. He paid up the arrears, however, on February 16, 1952 so that on 18-2-1952 when scrutiny was held by the Chairman he was no longer in arrears. Mr. Chakravorty contends that the relevant date is the date of scrutiny and not the date of nomination, as wrongly held by the learned Subordinate Judge We cannot agree. Section 22 of the 1932 Act lays down the test of eligibility for election: Sub-section (1) uses the phrase--'shall not be eligible for election'. Election is a continuous process, consisting of several stages and embracing many steps of which nomination is one, as pointed out in the case of -- 'N. P. Pannuswami v. Returning Officer, Namakkal', : [1952]1SCR218 (G). 'Nomination is the foundation of a candidate's right to go to the polls: it is an integral part of the election'. If a person is disqualified on the date of nomination, he cannot shake off his pre-existing disqualification by acquiring a new right between the date of nomination and the date of scrutiny. If any authority for this proposition is necessary, it is to be found in the case of -- 'Satyendra Kumar v. Chairman of Municipal Commissioners, Dacca', AIR 1931 Cal 288 (H) where this point was conceded apparently on the basis of -- 'Harford v. Lynskey', (1899) 1 Q B 852 (I). In the latter case it was held definitely that the date of the nomination and not the date of the actual polling was the material date and we have no doubt that this is so in the case of elections held under the Bengal Municipal Act as well. We hold, therefore, that the petitioner's nomination paper was rightly rejected by the Magistrate acting under Rule 20. Had we come to the conclusion that the petitioner's nomination paper had been improperly rejected, we would have no hesitation in holding that the result of the election had been materially affected thereby and in setting aside the entire election in Ward 3 on that ground. Reference may in this connection be made to the case of -- 'Ram Chandra v. Sachihdra Kumar', : AIR1953Cal184 (J) where it was puuued out that when a person's nomination paper is rejected the effect is that the voters are precluded from exercising their right to return the person at the election. The case of -- 'S. M. Solaiman v. Noor Mahomrnad', AIR 1944 Cal 395 at p. 399 (K) may also be referred to: in that case also the same principle was stressed.

17. Mr. Chakravorty next contends that in any event opposite party No. 2 Md. Taher Ali Molla's nomination paper should also have been rejected by the Magistrate as he was in arrears on the nomination date. It has been found that Md. Taher Ali Molla is owner of the Gardeit Reach Printing Press which is situated within the Garden Reach Municipality. It has also been found that the license fee in respect of that Press was in arrear for more than three months on the last date for submission of nomination paper i.e. on 9-2-1952 and as in the case of the petitioner, the arrears were paid) up on 16-2-1952 i.e. two days before the scrutiny. 'Prima facie', therefore, Mahammad Taher Ali Molla also suffers from the same disability as the petitioner. The learned Subordinate Judge has held, however, that it cannot be said that he was personally in arrears in respect of the license fees though he was the owner of the Press which was shown as the assessee in the books of the Municipality. Mr. Chakravorty has assailed vigorously the correctness of this finding of the learned Judge and, in our opinion, Mr. Chakravorty is right. Section 182 of the 1932 Act lays down that every person who exercises in the municipality either by himself or by an agent or representative any of the professions, trades or callings specified in Schedule 4 shall take out a half yearly license and pay a certain tax. Section 182 clearly applies to Mahammad Taher Ali Moila by virtue of his ownership of the Press. It has been found that on the material date i.e. 9-2-1952 (the last date for submission of nomination) he was in arrears for more than three months in payment of the tax which he was liable to pay. He was thus clearly within the mischief of Clause (g) of amended Section 22 (1) and it matters little that the name of the Press of which he was the proprietor and not his name was recorded in the books of the Municipality as the assessee. Mr. Sinha pointed out to us on behalf of Taher Ali Molla that his name was in the electoral roll by reason of his educational qualifications. That may be so but so far as the point now in issue is concerned that does not make any material difference. He may be qualified as a voter but that is not enough. In order to be eligible for election he must not also be in arrears for more than three months in payment of any tax and we have seen that on the material date he was in such arrears. Dissenting, therefore, from the finding of the learned Subordinate Judge we hold that there was improper acceptance of his nomination by the Magistrate.

18. The next point that falls for decision is whether the result of the election has been materially affected by the improper acceptance of his nomination, so that it has to be set aside under Section 38 of the 1932 Act. That the election has to be set aside in so far as Md. Taher All Molla is concerned is clear enough, but the really important point is whether the entire election in that three-member constituency should be set aside on the ground of his disqualification alone. It is not the case of the petitioner now that opposite party No. 1 Aswini Kumar Pal, and opposite party No. 3, Vejoy Bahadur Singh, who were declared elected unopposed with Md. Taher Ali Molla on the rejection by the Magistrate of the nomination of other candidates suffered from any disqualification.

19. Relying on the case of -- : AIR1931Cal36 Mr. Chakravartty contended that there was no option in the present case but to set aside the election of Aswini Pal and Vejoy Bahadur Singh as well even though they did not suffer from any disqualification under Section 22. There are observations no doubt in the judgment of Suhrawardy, J. in the above case which go in favour of Mr. Chakravartty's contention. As summarised in the head-note, that case lays down the proposition that when the election of one or two or more candidates jointly elected from a constituency is set aside, the whole election from that constituency must be set aside. That case was decided, however, in 1930 under the old Bengal Municipal Act of 1884 whereas the present Bengal Municipal Act of 1932, came into force on 1-12-1932. In the old Act (1884) there was no provision corresponding to Section 38 and the allied sections of the present Act, nor was there any provision corresponding to Section 25A of the present Act. The above provisions of the present Act seems to have brought about a radical alteration in the position and it is doubtful if the observations of Suhrawardy J. can be held to apply to a case governed by the present Act, especially to a case like the present one where no poll was held and three candidates were returned unopposed in a three-member constituency, unlike -- 'Rathis Munshi's case' (F) where a poll was held in a two-member constituency for which four candidates went to the poll. As there was no necessity for a poll in the present case, the question of fairness to the constituency and the other candidates, if the election of Md. Taher Ali Molla alone is set aside, hardly arises. Nor in the present case are we pressed by any speculation as to how votes would have been divided among the respective candidates in case the Magistrate had rejected Mr. Taher Ali Molla's nomination as he should have done, as in that case there would have been only two validly nominated candidates for three seats. The considerations that weighed with the learned Judges in -- 'Rathis Munshi's case' (F) are thus absent in the present case and on the facts of the present case where, as pointed out before, there was no poll there being only three candidates passed by the Magistrate under Rule 20 for three seats, neither the spirit nor the letter of the law requires that two inoffensive candidates should be penalised for the fault of a third candidate who was wanting in the necessary qualifications. As we read Section 38 (d) of the present Act, it is open to us to set aside the election of the delinquent candidate only without interfering with the result of the election in so far as the other successful candidates are concerned.

20. In the result, therefore, the election of opposite party No. 2 Md. Taher Ali Molla alone is set aside and the Rule is made absolute to that extent only.

21. In view of the circumstances, the parties are directed to bear their own share of the costs throughout.

Lahiri, J.

22. I agree.


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