Skip to content


NesaraddIn Mandal Vs. Anath Nath Choudhury - Court Judgment

LegalCrystal Citation
SubjectElection;Civil
CourtKolkata
Decided On
Judge
Reported in(1925)ILR52Cal943
AppellantNesaraddIn Mandal
RespondentAnath Nath Choudhury
Excerpt:
election - bengal village self--government act (v of 1919), section 51, jurisdiction of civil courts if barred under--rules framed under section 101(2)(e), rule 8--seven days' notice required under rule 8, if necessary in case of a meeting for electing a new president after a general election. - .....brought a suit to have the election of one nesaraddin mandal as president of the bhandarbati union board declared void. the facts of this case are as follows and are not disputed.2. the period of office of the members of this union having come to an end, a fresh election and nomination of members took place, and the names of the members elected and nominated were notified in the calcutta gazette on march 5, 1924. in accordance with rule 32 of the rules issued under the government notification no. 630 t.---l. s.-g. of october 13, 1919, the magistrate of hooghly on march 11, passed an order on the subdivisional officer to proceed with the election of a new president. under rule 36 of these rules the members had to elect the new president within one month of the order and on march 17,.....
Judgment:

Duval, J.

1. In this matter the plaintiff-respondent brought a suit to have the election of one Nesaraddin Mandal as President of the Bhandarbati Union Board declared void. The facts of this case are as follows and are not disputed.

2. The period of office of the members of this union having come to an end, a fresh election and nomination of members took place, and the names of the members elected and nominated were notified in the Calcutta Gazette on March 5, 1924. In accordance with rule 32 of the rules issued under the Government notification No. 630 T.---L. S.-G. of October 13, 1919, the Magistrate of Hooghly on March 11, passed an order on the Subdivisional Officer to proceed with the election of a new President. Under Rule 36 of these rules the members had to elect the new President within one month of the order and on March 17, 1924 the Subdivisional Officer posted notices on the new members to the old President for service on them, fixing March 26, as the day on which the members of the union should elect a President under his Presidentship. The plaintiff, the old President, received these notices on March 19, and he served them on the members on March 20 and 21. On March 26, the meeting was held under the Presidentship of the Subdivisional Officer. Eight out of nine members attended the meeting. The one member who did not attend has also put in an affidavit saying that he was unable to attend for personal reasons and that if he could have attended he would have voted for the defendant. At the election held by the members, five voted for the defendant and three for the plaintiff. No one alleged at the meeting that it was not duly summoned. Thereafter, the plaintiff brought the present suit, his main contention being that defendant No, 1 was not duly elected because seven days' clear notice had not been given of the meeting for the election. Before he did so, he appealed to the Commissioner who overruled his objection. The case came up before the learned Munsif who found against the plaintiff and dismissed the suit, holding that the election of defendant No. 1 was duly made. In Appeal, the learned Officiating District Judge of Hooghly has found that as there was not clear seven days' notice before the meeting was held the election is invalid and must be set aside. He has, therefore, issued a permanent injunction restraining the defendant No. 1 from sitting as a President of the Union Board and from taking over office from the old President. Against this order the present appeal is preferred.

3. In appeal, the following points are raised: firstly, that the Civil Court has no jurisdiction to entertain the suit; secondly, that there is no rule prescribing any period of notice to members of the Union Board for a meeting to elect a new President; thirdly, if rule 8 of the rules issued under notification No. 4267 L. S.-G. of January 5, 1920, which requires that at least seven days' notice of all meetings of a Union Board shall be given to every member, applies to this meeting also, that the rule is not mandatory but merely directory, and the non-observance of it would not by itself make the election void; fourthly, if this rule applies, anyhow the plaintiff cannot raise it as he attended the meeting, raised no objection at the time that the meeting was not duly called, but offered, himself as a candidate for election. He, therefore, cannot afterwards turn round and say that the whole proceeding is void; fifthly, the Civil Court should not set aside the election as any irregularity which occurred did not affect the result.

4. Now as to the first point, the argument is put before us that in view of Section 51 of the Bengal Village Self-Government Act, 1919, no civil suit would lie in such a matter as this. That section reads thus:---'It shall be the duty of all Commissioners, District Magistrates, Subdivisional. Magistrates, etc., to see that the proceedings of Union Boards are in conformity with law and with the rules in force thereunder. The Commissioner may, by order in writing, annul any proceeding which he considers not to be in conformity with law and with the said rules, and may do all things necessary to secure such conformity.' It is urged on behalf of the appellant that in view of this section the Civil Court has no jurisdiction to entertain a civil suit of this nature, and reference was made to certain reported cases in support of this contention. Those cases, however, only go so far as to establish that where the Legislature has set up a special tribunal for the purpose of deciding certain matters, such matters shall be heard by that tribunal and by that tribunal alone. As I read Section 51 I cannot believe that it was the intention of the Legislature to set up the Divisional Commissioner as the persons finally to decide questions of franchise to the annulment of the ordinary Civil Court's right to decide such questions; and I must hold that this section is not broad enough, anymore than Section 120 of the corresponding Local Self-Government Act, 1885, has been held to be, to debar Civil Courts from, exercising their ordinary powers in this connection to try all suits under its general power under Section 9, Civil Procedure Code, which says: The Courts shall have jurisdiction (subject to the provisions contained in the Code) to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. A suit in which the right to property or to an office is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.' In this view I must hold that the Civil Court has full power to entertain the suit.

5. The next question is whether the election is bad because seven clear days' notice (which admittedly was not given) is necessary under the Rules for a meeting of the members for the election of a President. Now the Rules of October 13, 1919, to which I have referred, lay down the procedure for the election of a President in two contingencies, firstly, the election of a President at the formation of a new board, which is contained in Rules 32 to 36, the election taking place by virtue of the provisions of Section 8 of the Act, and secondly, an election owing to a casual vacancy which might arise under Section 17 of the Act, by death, removal or resignation of a President during the duration of a Board, the procedure for the latter being set out in Rule 40 of the Rules. In the latter case the rule is perfectly clear. The new election has to be made at a meeting of the Union Board within a certain period, and it is clear that it can only be made at a meeting of the Union Board. The election of a President of the new Board after a new election of the members stands on a different footing. The election has to be made at a meeting of the members presided over by the Circle Officer or other officer (in the present case the Subdivisional Officer). 1 The presiding officer asks each member to record his vote in writing and each of the members voting hands to him a signed voting paper containing the name of the person for whom he votes, and the Presiding officer then declares the candidate for whom there is the largest number of votes to be the President of the Board; or if there is an equality of votes the presiding officer gives a casting vote. The section of the Act which refers to the election of the President of the Union Board is Section 8 which reads thus: 'Every Union Board shall be presided over by a President who shall be elected by the members of the Union Board from among their own members.' Under Section 101(2) (a) the Local Government has power to make rules generally regulating all elections under the Act. It would appear, therefore, at first sight that this meeting for the election of a President is different from, an ordinary meeting of the Union Board, the regulations of which meetings are prescribed under rule, made under Section 101(2) (c). The meeting is not convened, by the old President or by any member. It is convened Jay a Government officer. It is presided over by a Government officer. The Government officer has a casting vote, and the voting takes place, not in the ordinary way by show of hands, but by each member individually recording his vote on apiece of paper and handing it over .to the President. Section 8, too, of the Act does not refer to the President being elected by the Union Board but by the members of the Union Board, and it is only by virtue of rules which the Government has made under its power to make them under Section 101(2) (a) that the election is one in which all the members meet in one place and record their votes in writing in the presence of the Circle Officer or other Government officer. These rules for the election of the Presidents of Union Boards were issued in October 1919. Further, rules were issued in January 1920 but these were issued under Section 101(2), (e) as 'Rules regulating the conduct of meetings of Union Boards and the method of forming a quorum.' It is urged for the respondent that as rule 8 of these rules require seven clear days' notice to be given, and as seven clear days' notice was not given and as this is a meeting of the Union Board, the whole election is ultra vires.

6. Now the first question is---Can these rules which apply to meetings of Union Boards also apply to meetings of members of Onion Boards called together under statutory rules made under another rule-making power for the purpose of electing a President? An examination of these rules shows that the meetings of Union Boards differ largely from the rules made in the previous notification for the election of a first President of a new Board, but are by no means inconsistent with the rule as to the election of a President in a casual vacancy. Thus, these rules, lay down that meetings shall be held at the office of the Union Board or at such other place as the President determines. Meetings shall be either ordinary or special. Seven days' notice must be given to each member of the Union Board. At special meetings the quorum shall be formed by at least one-half of the number of members. The President or, in his absence, the Vice-President shall preside at every meeting; provided that the provisions of the rule shall not apply to a meeting convened for electing a President or a Vice-President. There is a subsequent rule to the effect that if a meeting fails for want of a quorum, the members shall be informed of the date of an adjourned meeting by a fresh notice and then rule 8 requiring full seven days' notice will not apply.

7. Now the main question on the second point urged in this appeal is---do these rules at all apply to a meeting convened by the Government officer for the election of a new President after a general election? It is seen that under Rule 10 the election of a President in the case of a casual vacancy must be made at a meeting of the Board, but it does not follow that a meeting for the election of a new President to be elected under Section 8 of the Act rendered with the rules passed under Section 101(5) (a) of the Act, presided over by and summoned by one who is not a member of the Board, is a meeting to which the rules under Section 101(5) (e) has any application. In my opinion, the rules framed under Clause (e), Sub-Section (2) of Section 101 cannot apply to such a meeting. As I have pointed out, there is a very considerable difference between the nature of meetings of members summoned under Section 8 and the rules made therefor and a meeting of the Board summoned under rules framed by Clause (e) of Sub-Section (2) of Section 101, Bengal Village Self-Government Act. The difference between the nature of these meetings is clear as I have already set out, and it appears to me, therefore, that we cannot import the ordinary rules for ordinary and special meetings of a Union Board into the procedure for the election of a new President after a new election.

8. No doubt, stress was laid on the provisos to Rules 11 and 12 in the latter rules which say that the provisions of Rules 11 and 12 do not apply to a meeting convened for the election of a President or Vice-President. But as I have pointed out, casual vacancies are to be filled up at ordinary meetings, and the proviso is necessary in order to provide that Rules 11 and 12 do not apply to meetings held under Rule 40 of the election of a new President in a casual vacancy and for no other purpose.

9. It does not follow that because of this proviso (rendered necessary by the wording of the rules promulgated under the earlier rules for the procedure for election in casual vacancies at meetings of the Union Board) finds a place therein that these rules have any application at all to the meetings held under the Presidentship of a Government officer for the election of a new President after a general election; nor indeed can they, for the nature of the two classes of meetings is clearly fundamentally different. A meeting of the Union Board held by virtue of the rules framed under Clause (e) is at the office or such place as the President may appoint. At a meeting after a new election, the President does not appoint the place of meeting for the members who meet to elect a new President; the method of voting at ordinary meetings is entirely different from meetings of the members to elect a President. In the latter case the President has a casting vote only. In ordinary meetings the President as a member has a vote and also his casting vote. The method of election is different. In an election under Section 8 the Government official has a casting vote. In an election under Section 17 the presiding officer as a member of the Board has his vote and also a casting vote. The conclusion, therefore, I can only come to is that as a matter of fact Rule 8 and other rules relating to meetings under Clause (e) do not govern meetings of the members of the Union Board convened by a Government officer for the purpose of electing a President after a general election.

10. As I hold this, the farther questions as to whether rule 8 is mandatory, whether the plaintiff is debarred by his conduct from contesting this election and whether the Civil Court should set aside the election on such irregularity as a defect of notice alone need not be determined in this litigation.

11. Holding then that there is no time provided by any rules as to the period of notice to be given to the new members to meet and proceed to an election, the only question remaining (there is no other question of irregularity raised before us in the appeal, the other questions having been given up) is whether reasonable notice was given to the members of the Board to meet under the Presidentship of the Subdivisional Officer to elect their new President. Now as to this, we have the fact that eight out of nine, members attended to elect the President, and the remaining one explained why he could not attend the meeting. No one objected at the time of the meeting as to the insufficiency of the notice. A clear majority wished the defendant to be the President; the absence of the ninth member could not have affected the result. A suggestion that a few days' extra time for lobbying or log rolling would be to the advantage of the old President was mentioned, but naturally, and honourably, not pressed by the learned vakil of this Court appearing for the respondent. In this view I hold that the election was validly held with sufficient notice and in conformity with the rules that apply, and that the plaintiff, therefore, cannot succeed. We, therefore, allow this appeal, set aside the decree of the learned Officiating District Judge and restore that of the learned Munsif, dismissing the suit with costs of all the Courts.

12. Let the record be sent down as early as possible.

Suhrawardy, J.

13. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //