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Satyendra Kumar Das and anr. Vs. Chairman of the Municipal Commissioners of Dacca and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1931Cal288
AppellantSatyendra Kumar Das and anr.
RespondentChairman of the Municipal Commissioners of Dacca and ors.
Cases ReferredRathis Chandra v. Amulya Charan
Excerpt:
- costello, j.1. in this case the plaintiffs satyendra kumar das and sachi nandan das are seeking a declaration that they are qualified to be elected under the bengal municipal election rules of 1927 as commissioners of the municipal council of dacca and that they are not disqualified under section 57, bengal municipal act, that is to say, act 3 of 1881:. the facts as alleged by the plaintiffs are these. they say that they were persons of independent means and properties, that they were recorded as independent voters in the register of voters of ward 1 of the dacca municipality, and that neither of them had anything to do with the business of their fathers rebati mohan das (father of plaintiff l) and hrishi kesh das (father of plaintiff 2). the fathers of the plaintiffs owned the joint firm.....
Judgment:

Costello, J.

1. In this case the plaintiffs Satyendra Kumar Das and Sachi Nandan Das are seeking a declaration that they are qualified to be elected under the Bengal Municipal Election Rules of 1927 as commissioners of the Municipal Council of Dacca and that they are not disqualified under Section 57, Bengal Municipal Act, that is to say, Act 3 of 1881:. The facts as alleged by the plaintiffs are these. They say that they were persons of independent means and properties, that they were recorded as independent voters in the register of voters of Ward 1 of the Dacca Municipality, and that neither of them had anything to do with the business of their fathers Rebati Mohan Das (father of plaintiff l) and Hrishi Kesh Das (father of plaintiff 2). The fathers of the plaintiffs owned the joint firm Krishna Mohan Rebati Mohan Das at Faridabad Dacca which was a firm dealing in bricks and other materials of a like kind. The plaintiff's case was that this firm had supplied pugged jhama that is to say, road material to the Dacca Municipality in September 1927 at the special request of defendant 1, Chairman of the Municipality. The plaintiffs contended that the order for these materials had been given because bricks could not then be had in the town of Dacca. They further said that no bricks were supplied after September 1927 and that the bills for the price of bricks were duly passed by defendant 1 as Chairman of the Municipality; but on account of some financial difficulty payment of those bills had not been made in full; but instalments had been made by the Chairman from time to time and ultimately there was a sum of Rs. 2,000 remaining due to the firm of Krishna Mohan Rebati Mohan Das from the Municipality of Dacca. In the light of these facts the plaintiffs contended that the contract between their fathers' firm and the Municipality had come to an end after the goods had been supplied.

2. The term of office of the Commissioners of the Dacca Municipality covering a period of three years (1925 to 1928) having expired the next general election was notified to take place on 19th July 1928; and thereupon the two plaintiffs who were commissioners, that is to say members, of the then existing Municipal Board, offered themselves as candidates for reelection in Ward No. 1, and their respective nomination papers were duly tendered and were submitted to defendant 1 as Chairman on 19th and 20th June 1923 respectively. Upon that defendants 2 and 3 put forward objections to the nomination of the plaintiffs to defendant 1 as Chairman of the Municipality. Defendant 1 dealt with those objections and declared that the nomination papers were in order and were good and valid. Thereupon defendant 2 preferred an objection to the nomination of plaintiff 1, Satyendra Kumar Das before the District Magistrate and defendants 3 and 4 put forward similar objection to the nomination of plaintiffs 2 and 1 on the ground amongst others that the plaintiffs were disqualified for nomination under Section 57, Bengal Municipal Act inasmuch as that they had an interest in the firm above referred to, namely the firm of Krishna Mohan Rebati Mohan Das carried on by the plaintiffs' fathers which firm had dealings with the Municipality during the time the plaintiffs held office as Commissioners of the Municipality. These objections were heard by the District Magistrate under the power conferred upon him by Rule 16, Bengal Municipal Election Rules and the District Magistrate decided the matter in favour of the contention put forward on behalf of the defendants and gave a decision on 30th June 1928. Thereupon the plaintiffs being aggrieved by his order launched this proceeding claiming as I have said, a declaration that they were not disqualified under Section 57, Bengal Municipal Act as the defendants had contended before the District Magistrate. They instituted a suit in the Court of the Munsif, 5th Court, Dacca, challenging the order of the District Magistrate as ultra vires and illegal. We do not consider it necessary for the purpose of this case to decide one way or other whether it was competent to the plaintiffs to bring these proceedings. We will* assume for the purpose of this case that as the law stands at present it was competent for the plaintiff's to bring the suit and therein to challenge the decision arrived at by the District Magistrate in the circumstances I have narrated. At the same time however I desire to say once again upon this point that I have grave doubts whether when in 1891 the proviso was added to Section 15, Bengal Municipal Act (3 of 1881 B.C.) whereby it was laid down:

that nothing contained in the section nor in any rules made under the authority of this Act shall be deemed to affect the jurisdiction of the civil Courts.

3. It was ever intended by the legislature that matters which had already been dealt with by the District Magistrate under power conferred upon him by Rule 16, Bengal Municipal Election Rules, should be subject to revision by ordinary suits in the civil Court or that the decision of the District Magistrate on points of this kind should be otherwise final as expressed in the rule in question. I have already on a previous occasion : AIR1931Cal36 , made some observation upon this matter and I desire to emphasize once more the inconvenience which is caused by suits of this kind; for it is really the case that small questions with regard to Municipal elections can be canvassed and agitated in Courts from that of the Munsif of the District to that of the District Judge, then up to this Court. The procedure is extremely cumbrous and the result of it is that it may happen that a ward of the Municipality may be disenfranchised for a period which may extend in some cases to the whole term of office of the municipal body. My own view of the matter is that that some means ought to be provided for a speedy matter of this kind whereby it can be settled more expeditiously. The District Magistrate might for certain purposes at any rate be vested with powers equivalent to Special Election tribunals. We hope that the proper authorities will take this matter into consideration with a view to ascertaining whether it is not desirable to have the law so altered, if necessary, so as to provide a unambiguous terms for the establishment of special tribunals in order to ensure expeditious and final determination of all disputed; matters in connexion with municipal elections. Having said that as I have already indicated we propose to deal with the case upon the footing that the suit as framed was in order. We have therefore to determine whether the plaintiffs were entitled to succeed in the suit which they brought.

4. I have pointed out that at the time-when the plaintiffs were nominated candidates there was still outstanding, in respect of the contract undertaken by their fathers a sum of Rs. 2,000. That sum was in fact paid before the actual date of the election, that is to say, 19th July 1928. It is conceded on behalf of the appellants that the matter is to be determined in the light of the circumstances and the position as they existed at the date of the nomination and not at the date of the election and indeed so far as this point is concerned the matter was definitely settled in the case of Harford v. Luis Key [1899] 1 Q.B. 852. We have therefore to determine whether or not on 19th and 20th June 1928, when the nomination papers were handed in, these two candidates were disqualified by reason of the provisions of Section 57 of the Act of 1881. The learned Munsif who tried the case found as a fact that the plaintiff's allegation that they had. no interest in their fathers' business was not correct. He said that the owners of the firm were Rebati Mohan Das and Hrishi Kesh Das. Plaintiff 1 is the son of Rebati Mohan Das and plaintiff 2 is the son Hrishi Kesh Das and both of them lived with their respective fathers jointly. In these circumstances it is too much to say that they were not interested in the firm either directly or indirectly. He then went on to say that the most important question that arises in this connexion is whether the contract for the supply of road materials was complete and the disqualification had ceased before the dates on which the nomination papers were submitted; and ultimately he held that the nomination papers of the plaintiffs were good and valid and that the plaintiffs did not suffer from any disqualifications under Section 57 and gave judgment in favour of the plaintiffs. The learned District Judge who heard the case on appeal pointed out that the learned Munsif held the respondents, that is to say the plaintiffs, were interested directly or indirectly in the contract and this finding was not challenged before him. But the learned District Judge disagreed with the learned Munsif in his conclusion that as the firm had performed their share of the contract the disqualification had ceased before the nomination. He pointed out that the learned Munsif had relied on an English case, Cox v. Truscoll [1907] 92 L.T. 650 in which it was held that where a contractor has wholly performed his part of the contract and nothing remains to be done under it the disqualification comes to an end. The learned District Judge said however that having considered that decision he came to the conclusion that he could not reconcile it with the provision of Section 57; and he observed:

To say that a contractor who has performed his part of the contract, but has still to receive payment from the other party for the goods supplied, has no longer any interest in the contract, is much more than stretch of the language. And he added that if in such circumstances a contractor were to go into the box, and state that he had no interest in the contract, it seems to me that he would lay himself open to a prosecution for perjury.

5. The learned Judge accordingly held that the plaintiff-respondents did have an interest in the contract at the time of the nomination and accordingly he reversed the decision of the Court of first instance. The real, and indeed the only, point which calls for our consideration in this appeal is whether or not in the circumstances the view taken by the learned District Judge is correct; and we have to decide whether, merely because the outstanding feature of the contract was the question of payment, that exculpates the plaintiffs and relieves-them from all responsibility for the-bargain which had been made by their fathers with the Municipal body. Having regard to the findings of the Courts below that these plaintiffs were in fact interested in the business carried on by their fathers, we start with the assumption that to all intents and purposes any contract made by the firm of Rebati Mohan Hrishi Kesh would be a contract made by the plaintiffs, or at any rate a contract to which they were privy. Undoubtedly, as I have already said, there was a contract between the firm in question and the Municipal body. It is important to observe the precise language of Section 57, Bengal Municipal Act 1884. That section provides:

No commissioner or member of a ward committee shall have, directly or indirectly, any share or interest in any contract of any kind whatsoever to which the commissioners are a party or such hold any office of profit under them and, if any commissioner shall have such share or interest, or shall hold such office, he shall thereby become disqualified to continue in office as commissioner and shall be liable to a fine not exceeding five hundred rupees.

6. The section contains a proviso which-is as follows:

Provided that a commissioner shall not be so disqualified by reason only of his having a. share or interest in: (a) a contract entered into between the commissioners and any incorporated or registered company of which such commissioner is a member or shareholder; or (b) any lease, sale or purchase of land or any agreement for the same; or (c) any agreement for-the loan of money, or any security for the payment of money only or (d) any newspaper in which any advertisement relating to the affairs. of the Municipality is inserted.

7. It further provides that no such commissioner shall act as commissioner or member of a ward committee, or take part in any proceedings relating to any matter in which he is interested. Rule 14, Bengal Municipal Election Rules of 1927, which is one of the rules relating to the qualification of a candidate provides as follows:

Any person qualified to vote under these rules and not disqualified under Section 57 of the Act,' that is to say the Act 3 of 1884 B. C. ' shall be qualified to be elected a commissioner.

8. This is tantamount to saying that any person who is disqualified under Section 57, Act 3 of 1884 is not qualified to be elected a commissioner. It was by virtue of that rule that the real defendants in the suit, that is to say, the defendants other than defendant 1, who is the Chairman of the Municipality, took the objection to which I have already referred, and which objection was, as I have already said, upheld by the District Magistrate upon appeal to him under Rule 16. Section 57, Act 3 of 1884, is analogous and corresponds to Section 12 of the English Act-the Municipal Corporation Act of 1882 which provides in Sub-section (1), Section 12, as follows:

A person shall be disqualified for being elected if and while he-

then follows certain provisions which are not material for our present purpose-

(c) has directly or indirectly, by himself or 'his partner, any share or interest in any contract with by or on behalf of the Council.

9. This is followed by sections which are in substance the section which contains the proviso to Section 57 of the Act of 1881. It needs scarcely to be said that the object of the section, both in the English Act and in the Indian Act, is to provide for the purity of public life and to prevent corruption or anything which produces a situation in which the private interests of a councillor or a commissioner conflicts with or is likely to conflict with or run counter to his duty as a public man. The object of these sections was well expressed, if I may say so, by Lindley, L. J. in Nutton v. Wilson [1889] 22 Q.B.D. 744 at 748 where it is said with reference to the words used in the Public Health Act of 1875:

To interpret words of this kind which have no very definite meaning, and which perhaps were purposely employed for that very reason, we must look at the object to be attained. The 'object obviously was to prevent the conflict between interest and duty that might otherwise inevitably arise.

10. Although Lindley, L. J., made that observation with reference to the provisions of the Public Health Act, it is fully applicable with just as much force to the provisions of V. 57 of the Act with which we are now concerned. Although that is the purpose and object of provisions of this kind I think however it is right that the Courts should bear in mind that they are penal provisions and therefore ought not to be extended beyond their legitimate limit; but at the same time if there is any doubt the Courts should be careful to see that the ('intention of the legislature enacting the section is duly observed. In some of, the older cases the Judges in England with regard to matters of this kind have been disposed to hold that the smallest variation of the provision is sufficient to disqualify a guilty person though in other cases the suggestion was thrown out that the maxim de minimis non curat lex might apply. I think the former view is preferable. In Nell v. Longbottom [1894] 1 Q.B.D. 767. Cave, J., said at p. 770, referring to the councillor who after his election had supplied a member of the fire brigade on behalf of the council with four pence-worth of oil:

The first answer made to this was that the contract was a very small one. That however is a matter into which we cannot enter as the legislature has not entrusted us with any dispensing power and probably considered the maxim obsta principiis should apply to cases of this class.

11. A very small breach of the statute was held to inflict upon the persons concerned disqualification. In this connexion I refer also to the observation laid down in Bex v. Rowlands [1906] 2 K.B. 292 at p. 295 where it is said:

The fact that the amount in question is small is immaterial. It is quite clear that if he (that is to say the person who was said to be disqualified) accepted any commission for collecting rent for the Board he would be disqualified for being a guardian.

12. So far as I am concerned I most respectfully adopt the observation of the learned Judges to which I have referred and I give it as my own opinion that in matetrs of this kind the Court ought to be disposed to view with great disfavour any infraction whatever or any breach of the provisions of the disqualifying section. In the present case it was contended by the learned Advocate-General that the plaintiffs were not disqualified from being candidates at the election of 1928 because the contract in which undoubtedly they had been interested had come to an end and therefore so far as they were concerned, they or their fathers had done all that they were required to do under the contract and that nothing remained, and that they and their fathers would be deemed to have obtained all the price of the materials supplied; and in support of this contention the learned Advocate General quoted to us various passages from books on the law of Contract and also to a good many authorities which perhaps at first sight would seem to go in support of the view he urgel on behalf of the plaintiffs-appellants in this case. We were referred in particular to the cases of Wooley v. Kay [1856] 1 H. & N. 307, where at p. 1221 Alderson, B., said:

Here the defendant had entered into the contract before he acted as a commissioner, and all that remained for him to do was to sign a piece of paper and receive his money.

13. We were also referred to the case of Le Tenvre v. Joseph Lankester 3 El. & Bl. 530 and to the case of Lewis v. Carr [1876] 1 Ex. D. 484. But the case on which the argument for the appellants was mainly founded was that of Cox v. Truscott. In that case, in the course of the argument, reference was made to the cases of Lewis v. Carr [1876] 1 Ex. D. 484 and Royse v. Birley [1869] 4 C.P. 296. Lord Darling in the course of his judgment in that case referring to Section 12, Municipal Corporation Act, 1882, said:

Section 12 does not say that he shall be disqualified altogether. It provides : 'A person shall be disqualified for being elected and for being a councillor if and while he has interest direct or indirect in any contract by or on behalf of council.' He is only disqualified, if he has an interest in the contract while he has such interest. He gets rid of his disqualification when he gets rid of the contract; and the contract is got rid of if the contract is performed, that is if there is no more to be done at the time of the acts. How did he act It is said here that ho acted by vote.

14. The question in that case was whether or not a member of the Municipal Council was disqualified because he had voted as a member of the council at a time when he was alleged to have an interest in the contract with the Corporation concerned. On the strength of that case we are invited to come to the conclusion in the present case that the plaintiffs were not disqualified because, at the time of the nomination, they themselves had no interest in the contract made by their fathers because that contract had been performed and there was nothing else to be done but the receiving of payment. The learned Advocate-General took a further point that irrespective of the main object of Section 57, the plaintiffs avoided any disqualification by virtue of Clause (c) of the proviso to the section; and he urged that as upon a date antecedent to the date of nomination, not only had certain payments been made, but the contractors' bills had been finally passed by the Chairman of the Municipality and therefore-, the original contract had been discharged and in its place the contractors had received passed bills which were regarded as security for the money owing; and therefore to use the precise language of Sub-section (3), any security for the payment; of money.

15. In support of that argument he referred us to the definition of the term in Stroud's Judicial Dictionary. Before dealing with this contention, it is I think necessary to emphasize what, precisely the position of the plaintiffs had been as regards the Dacca Municipal Council. Admittedly they were members of the council which was in existence at. or immediately prior to the election of 1928 and consequently the were members of the Municipal body at the time when the contract between that body and the fathers of the plaintiff's was entered into.. It is clear also that they were members of the Municipal body during the time when their fathers were carrying out their obligations under the contract by supplying road materials which had been ordered; and as far as I can see, having, regard to the procedure obtaining in regard to the coming into being of a new Municipal Council, they were actual members of the Municipal body when they put in their nomination papers for re-election. It follows therefore that the existence of the contract or, if I may use-the expression, the life of the contract, falls into three parts. There is first of all the making of the contract, secondly, the performance of the contract, and lastly, the discharge of the contract. It follows therefore that, as I have said, these plaintiffs undoubtedly were disqualified from sitting as members of the council during the first two at any rate of these divisions into which I have divided the contract, viz. as members of the body at the time of the contract and as members of the body at the time when it was carried out by their fathers; and in these circumstances it seems a little difficult to accept the contention of the learned Advocate-General that the plaintiffs had ceased to have any interest in, the contract at the point when nothing else remained to be done but the form to receive payment for the bricks supplied. We do not consider in the circumstances of this case at any rate that the passed bills constituted merely as security for the payment of money in the sense in which that expression is used in Clause (c) upon the point as to whether that is any disqualification when everything has been done under the contract except the making of payment. In considering the case of Cox v. Truscott, which was cited, it must be borne in mind that in the earlier case of Ford v. Newth [1901] 1 K.B. 683, Darling, J., said this at p. 692:

There is one other point which I ought to mention, Mr. Newth had supplied some oil before 19th October, and on 24th October he had not been paid for this oil. There was therefore an existing debt from the council to him, and it is contended that this in itself constituted a contract which disqualified the respondent from being elected. This point was argued, but it is not necessary to decide it now. When it arises for decision it will be worthy of careful consideration, but if we wore to express our opinion on it now anything that we might say would be merely obiter dictum; I therefore express no opinion on that question. That case was decided in 1901. There the point, whether the fact that a councillor was indebted to a member of its body as a contractor is sufficient to disqualify that member was left open.

16. Then in 1905 it is obvious from the observation of Darling, J., in Cox v. Truscott that he had some difficulty 'in arriving at the decision at which he ultimately arrived and that he had still some doubt that the mere existence of a debt arising out of a contract otherwise performed was itself sufficient to disqualify a man. The learned Judge began his judgment by saying:

This case is a prculiar one and it raises questions, to my mind, of very considerable difficulty, questions as to which I do not profess that my opinion is absolutely clear.

17. Then lastly a year later came the other case which I have already mentioned viz., Bex v. Rowlands and the same learned Judge seem to have come to a definite opinion

that it cannot have been intended that the termination of the contract should get rid of the disqualification.

18. It seems obvious from the first two lines of the judgment of the learned Judge that there was some doubt upon the point with which we are now concerned. As the learned Advocate-General put before us various passages from text-books relating to the law of contract and Mr. Ghose on behalf of the respondents referred to a book on the Law of Contracts by Sir William Anson, I may refer to the statement made by that distinguished writer in Ch. 13 : 'Discharge of Contract by Performance.' Where he says:

We must distinguish performance which discharges one of two parties from his liabilities under a contract, and performance which discharges the obligation in its entirety.

19. We have come to the conclusion that we cannot accept the cases which were cited on behalf of the appellants as giving a correct interpretation of the law as it ought to be applied at any rate to the circumstances of this case. I have already pointed out that it is clear on the facts and upon the findings of the Court below that the plaintiffs, to use the words of the section which we are considering, had directly or indirectly a share or interest in the contract to which the commissioners were a party, undoubtedly up to the time when only the question of payment was outstanding. On behalf of the respondents we have been referred to the case of O'Carrol v. Hastings [1905] 2 Ir.R. 590 which was cited before the learned Munsif who tried this matter at the first instance and apparently rejected by him on the ground that it was an Irish case and not an English case. The learned District Judge does not seem to have considered that case; but on the other hand by a process of reasoning with which I am not prepared to agree rejected the decision in the case as not being one which ought to be followed. We have come to the conclusion that the right view of the law is as laid down in the Irish case which is no less of an authority in this matter than any English case would be or would not be. It is not a decision which we are bound to follow; but on the other hand we take the view, as we do, that the arguments, reasonings and the ratio decidendi in the case ought to be followed and we think that we should accept it as a guide to the right view of the law having regard to the facts and that the decision in the case was based on the judgments of very eminent Judges including the Lord Chief Justice and was given after all the Judges had not only considered the matter carefully and given one set of judgments but after they had been referred to further authorities and given reconsidered judgments in the matter and after they had considered several authorities on which the appellants have relied in the present case. There is one other case which I ought 'to mention and which at first sight did seem to be an authority of soma weight in favour of the contention of the appellants. I refer to the case of Roijse v. Birley.

20. But that case has really no bearing on the matter with which we are concerned because the words of the statute under which the proceedings were there brought are entirely wanting in the language of Section 57, Bengal Municipal Act and in Section 12, English Municipal Corporation Act of 1882. It is important to observe what the facts were in the Irish case I have referred to. On 7th November 1904 H obtained a contract from an urban district council for printing to be done in connexion with the forthcoming election of members of the council. The election took place on 16th January 1905 and II was elected a member. At the date of his election the defendant had completed the contract on his part with the exception of the printing of the notice of the result of the election but had not received payment of the contract price. On 18th January II printed the notice of the result of the election, thus completing the contract on his part. On 23rd January H attended a meeting of the Council and acted in the proceedings. Before leaving he was paid the amount of his contract. Upon these facts it was held that II acted as

a member of the council when disqualified and was liable to the penalty imposed by Article 12. The words of that clause so far as they are applicable to this case are: A person shall be disqualified for being elected or chosen or being a member of the council if ho is concerned by himself or his partner in any bargain or contract entered into with the council.

21. The operative words of that disqualifying clause are is concerned in any bargain or contract.' I am of opinion that there is very little distinction between the words concerned in' and the words used in. Section 57 'have an interest directly or indirectly.' And indeed it appears from a passage in the first judgment of Andrews, J., that he tells very much the same thing because referring to the respondent the learned Judge said:

Even however if ho had completed the contract on his part at the time of the election but had not received payment for it, I would be of opinion, although this question was left undecided in Ford v. Newth that he would have been still concerned in the printing Contract. He would undoubtedly while unpaid, have been interested and materially interested in that contract and therefore in my opinion concerned in it.

22. Now on this assumption that the variation in the language as between the section with which we are now concerned and the clause under consideration in the case of O'Carrol v. Hastings is not material, we think that the case we have to consider is wholly covered by the decision in this case. The learned Lord Chief Justice in his first judgment' said:

The respondent at the time when he acted as councillor, clearly was concerned in the con-tract in question, inasmuch as he had not then reaped the fruit of it: he had not been paid the amount due under it. As I observed during the argument of the case, he could have brought; an action on the contract to enforce payment;' and it would be a strange proposition that a person was not concerned in a contract in respect of which he could bring an action to en-force payment of what was due to him under it. The respondent had not realized the fruits of his contract and it appears to me, that at the date in question he was still concerned in the contract.

23. I have already referred to the first judgment of Andrews, J. I now refer to his observation which appears at p. 596, where he said:

It may be asked, could a council by wrongfully refusing payment disqualify a person from candidature The object of the legislature is to preclude all question. Whether a contract has been duly performed or not is a matter of fact. Suppose a builder completes his contract, but the council disputed this and refused payment. Would not the builder be concerned in the contract, even though it turned out afterwards that he was in the right So long as the money is unpaid, there is a possibility of dispute. If the existence of an unpaid claim under a contract does not disqualify, the contractor could, as a member, exert his influence with his colleagues to secure payment or to set defence to his action withdrawn and possibly he could even vote on the question. The enactment is a statutory one and should be applied to every case fairly within its scope.

24. I respectfully adopt the observation of the learned Judge as being applicable to this and other cases of the kind. When the learned Judges delivered the judgments I have quoted the attention of the learned Judges was not drawn to the cases of Royse v. Birley and the unreported case of Connally v. Fitzgerald. Thereupon the case was put on board for further argument and the learned Judges each gave a second judgment on further argument. The learned Chief Justice said at p. 599:

I adhere to every word I said. At the time he acted, that is to say before he was paid, the contract he had made with the council still existed, it was not merged, abandoned rescinded, extinguished or satisfied; and if any demur was made as to payment before payment was actually made, he could have sued upon the contract specially; or if he sued for work done at the request of the defendants the contract would have been a part of his necessary proof.

25. Further on he said:

It is farfetched, indeed, to contend that a man is not concerned in the contract or security by which he can enforce payment. The Council was concerned in the contract because it determined their obligation; and the defendant was concerned because it showed what the obligation was, and his right to enforce that obligation. Before payment is actually made, if a question arise as to the right of payment is it to be said that the person who claimed to be entitled to the money could vote with reference to it-as to whether it was to be paid or not-or whether an action brought to enforce payment should be defended

26. We should refer in this connexion to the case of Cox v. Truscott with regard to which the learned Chief Justice made an observation to the following effect:

The decision of Darling, J in Cox v. Trusoott to which we were referred, arises on a different statute and certainly is not, as reported, a satisfactory one. I cannot help thinking that the true character of the judgment in Royse v. Birley has been more than once overlooked.

27. Referring also to the case of Cox v. Truscott, Andrews, J. said:

If the recent ease of Cox v. Truscott before Mr. Justice Darling, as reported, is in conflict with my opinion, I would respectfully take leave to differ from it; but I do not look upon any of these cases as an authority against my opinion.

28. That is also the view I take with regard to the circumstances of the case and as reported in Cox v. Truscott and I most respectfully wish to differ from him.

29. There is one other point to which I should refer and it is this: The learned Advocate-General, as I have already said, contended that the contract was a contract for the supply of road materials and it terminated and in its place the plaintiffs' fathers as contractors had documents, that is to say the passed bills which were in the nature of a security for money owing and that therefore the case of Cox v. Trusoott has no application because there was no contract in existence at the date of nomination in which by a stretch of imagination the plaintiffs could be said to have any interest directly or indirectly. Upon that I think the argument put forward by Mr. Ghose on behalf of the respondents has considerable force. Although the contractors, might have got their bills passed, and. although the only outstanding in connexion with the contract was the question of payment, by no means it follows that there was no question on which controversy or dispute could have arisen as between the contractors and the council. It is possible, as Mr. Ghose suggested that, when the contractors had presented their bills for payment the councillors might have taken a different attitude in making the payment; and the contractors might have to bring a suit on it against the councillors. They were sufficiently interested in that suit as to suggest that whatever rights the council might have-against the plaintiffs had become obsolete by lapse of time. It is obvious that although the contractors had received these bills, it is not beyond the bounds of possibility that some matter in connexion with these bills could come before the Council of which he two plaintiffs were already members. We think that in these circumstances it cannot be said that the plaintiffs had no interest as they undoubtedly had at; the time of making the contract, at the time of carrying out the contract and they also had an interest in it at the time when the bills were finally passed. Looking at the matter from this point of view, we think that it cannot be said that the position as between the contractors and the Council was merely that of creditors and debtors and that all obligation under the original contract had disappeared. That being so we are of opinion that the position of the plaintiffs brought them within the ambit of the provisions of Section 57, Bengal Municipal Act, and therefore they were disqualified from being candidates at the election of 1928 as was found by the' learned District Magistrate and the District Judge. It follows that we come to the conclusion that the decision of the learned District Judge is right and this appeal is dismissed with costs to each of the two sets of respondents.

Suhrawardy, J.

30. I agree. My learned brother has learnedly discussed the English law on the point and I entirely agree with the observations made by him. I will however try to construe Section 57, Bengal Municipal Act, as it stands. There can be no doubt that Section 57 has been copied from Section 12 of the English Municipal Corporation Act of 1882 with some variations. To my mind these variations are of importance and have been made with some object in view. In Section 12 of the English Act the relevant words are:

A person shall be disqualified for being elected if and while ho has directly or indirectly, by himself or his partner, any share or interest in any contract with, by or on behalf of the council.

31. Section 57 has practically reproduced those words with the addition of the words 'of any kind whatsoever' and instead of 'any contract with, by or on behalf of the council' it has 'any contract to which the commissioners are a party.' It may fairly be presumed that the legislature at the time of enacting the Bengal Municipal Act of 1884 was aware of the decisions of the English Courts and the interpretation put by them on Section 12, Municipal Corporation Act, and similar statutes dealing with disqualification of members; and in order to counter the effect of those decisions the legislature introduced the words 'of any kind whatsoever' in order to make the provisions of Section 57 more stringent than the corresponding section in the English Act. Then with regard to the words 'any contract to winch the commissioners are a party,' it seems to my mind that the alteration in the language was made to make the expression more comprehensive than the words in the English statute -'any contract with, by or on behalf of the council.' The words in the English statute may be interpreted as indicating the existence of a bilateral contract, but the words of Section 57 may be construed as moaning the existence of a contract to which the commissioners are a party irrespective of the fact that the other party has or has not performed his part of the contract. In my judgment, in June 1928 when plaintiffs submitted their nomination, the commissioners were a party to the contract. I need hardly say that on the English authorities a contract is not fully discharged by one of the parties having discharged his obligation thereunder: Anson's Law of Contract, Ch. 13. The aim or object of similar enactments is to avoid conflict between duty and interest; and this policy of the law should be strictly kept in view in construing statutes of this character. The object aimed at by Section 57, Bengal Manicipal Act, is to prevent-persons sitting as commissioners deriving benefit from contracts which the commissioners have to control or may be called upon to examine. Now, in-the present case, it is said that the bills submitted by the plaintiffs' firm were accepted by the Chairman; but it was possible for the commissioners or any of them to raise questions as to the defective performance of the contract by the plaintiffs' firm. In such a case, if the plaintiffs were commissioners of: the Municipal Council there would be a clear conflict between duty and in terest.

32. The learned Advocate-General has as a last resort argued that the case of his clients comes within CI. (c), Section 57' Bengal Municipal Act. I do not wish to say more on this point than that that clause does not contemplate cases like the present, but includes cases where a person is interested in any agreement for the loan of money or any security for the payment of money only to or by the Municipality. It cannot be said that payment of money by the Municipality for work done for it is an agreement for the loan of money, ignoring the other part of the contract which the contractor had to perform. The very argument that this case falls under the proviso to the section assumes that the interest which the plaintiffs had. in the contract is an interest contemplated by Section 57, for the proviso to that section merely enumerates the exceptions to the general rule laid down in the body of the section.

33. As regards plaintiffs' interest in the contract it was found by the Munsif that they were members of the joint family carrying on the business. This finding was not challenged before the District Judge and must now be accepted. Even if they were not concerned in it, the contract being with their fathers they were indirectly interested in it 'in any kind whatsoever '

34. As to the maintainability of the suit in the civil Court I have expressed in some detail my view on this point in Rathis Chandra v. Amulya Charan : AIR1931Cal36 . I however strongly endorse the view expressed by my learned brother that a tribunal should be set up for expeditious disposal of election cases and the parties should not be allowed to agitate these matters through three Courts. The result of this case sufficiently shows the desirability of such a tribunal. This case was instituted in 1928 and in spite of all the efforts by all, including this Court, to expedite the hearing, it has taken two years to dispose of it finally. In the meantime the election of Municipal Commissioners of Dacca has been held up for this period. I agree with my learned brother that this appeal should be dismissed with Costs to each of the two sets of respondents who have appeared, viz., defendant-respondent 1 and defendants-respondents 2 and 3.


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