1. This is an appeal from the decision of the 1st Subordinate Judge of Howrah affirming the decision of the Munsif, 2nd Court, Howrah. The plaintiff in this case was a candidate for election as Commissioner of the Howrah Municipality. The defendants are the Chairman of the Municipal Commissioners of Howrah, the Vice-Chairman and the Presiding Officer appointed to hold the Municipal General Election which was to take place shortly after the suit was instituted. The plaintiff asked for declaration of his right to be present at the place and time when and where the votes of the voters would be recorded and also that the defendants or any of them have no right to prevent the plaintiff from being present at that place. He further asked that the defendants be restrained from prohibiting the plaintiff to be present at that place.
2. The Municipal Act applicable in Howrah is Act III of 1834, B.C.S. 15 of that Act gives the Local Government power to lay down rules not inconsistent with the provisions of the Act, amongst other matters in respect of the mode of election. Such rules are published in Notification No. 4345-M, dated the 21st November, 1896. Also instructions to the Presiding Officer have been drawn up, and this case really turns on the legality of E. 14 of those instructions which is to the following, effect:
After getting his ticket, the voter will enter the second enclosure where candidates or their agents shall not be permitted to enter this enclosure except to get their own votes recorded.
3. In order to understand the point it is necessary to state the provisions made for the recording of votes. The polling station is divided into three separate enclosures. There is the first general enclosure in which the voters are to be assembled. There is then the further enclosure which is entered through gates, and there are Municipal employees sitting at separate tables where tickets with serial numbers of the voters are given to the voters as they apply for them. Under the rules it is the duty of any one objecting on the ground of false personation to do so when the voter applies for his ticket in the enclosure. After the voter has obtained his ticket he enters into the third enclosure and there his vote is recorded by one of the members of the Committee who sit at separate tables.
4. The whole question is whether the candidate is entitled to be present in that part of polling station where votes are actually recorded. Both the lower Courts have decided this point in the plaintiff's favour. The first Court based its decision on the ruling in the English case of Clementson v. Mason (1875) 10 C.P. 209 . As the learned Subordinate Judge has rightly pointed out the decision of this English case has no application to the facts of the present case. That decision was based on the construction of certain sections of the Ballot Act which is not in force in this country. The learned Subordinate Judge, however, supported the decree on the ground that every person interested like the candidate has a natural right to be present where votes are recorded under the ordinary law. With this we are unable to agree. We cannot agree that thoughts of candidates or electors which are rights expressly given by statute carry with them any rights under natural law not given by statutory law. In order to succeed in this case it is necessary for the plaintiff to show that he has the statutory right to be present at the place where votes are recorded or that the rule forbidding his presence in that particular place is inconsistent with the. provisions of the Bengal Municipal Act, III of 1884, B.G. The learned vakil for the respondent has been unable to satisfy us on either of these points. The candidate as such has a right to be present to take objection where there has been wrongful personation. Also as an elector he has the right to enter the enclosure where votes are recorded in order that his vote may be recorded. But we can find nothing in the Act which suggests that the candidate has the right of himself supervising the recording of the votes. The recording of the votes is supervised by the Presiding Officer and the committee, and there is no reason why the candidates themselves or their agents should 'necessarily be present to see that the votes are properly recorded. As regards the right of the candidate to object in case of wrongful personation, that is fully provided by the rules which have been drawn up as regards the issue of tickets in the second of the enclosures to which the candidate and his agent are not only allowed, but specially invited to be present.
5. We therefore hold that the plaintiff has failed in establishing his case and the suit must fail on that ground.
6. It was also contended that Section 42 of the Specific Relief Act is a bar to this suit. But we hold that as the plaintiff asked for further relief in the form of an injunction that section is no bar.
7. The result is that the appeal is decreed with costs in all Courts.