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Birendra Lal Chaudhury Vs. Nagendra Nath Mukerjee and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.573
AppellantBirendra Lal Chaudhury
RespondentNagendra Nath Mukerjee and anr.
Cases ReferredAmir Hassan Khan v. Sheo Baksh Singh
Excerpt:
.....not alleged to be wrongly placed--whether can be guided in understanding sense. -..........the third part is also a separate qualification like the other two. it has been contended that the learned judge was not entitled to consider that there was a comma after the word 'holding' and before the clause 'and carrying on any trade or profession'. no doubt there is an old rule that punctuation is not a part of the statute, but where it is not contended that the punctuation is wrongly placed, there is no reason why the punctuation should not be taken as a good guide for the purpose for which it is there, namely, to understand the sense of the passage. moreover, if the punctuation is objected to, the whole of it must be discarded; otherwise, as in the present case, if the comma in question be ignored and at the same time the previous comma be kept, the sense would be something quite.....
Judgment:
ORDER

S.K. Ghose, J.

1. This Rule is directed against an order dismissing a petition for setting aside an election. The facts relevant to the Rule may be stated as follows;

2. The Government of Bengal fixed March 10, 1931, as the date for holding the first genera election under the Bengal Municipal Act of 1932 in Ward No. 2 of the Hoognly Uminsura Municipality. There were four candidates for two seats, of whom one was Babu Sachindra Lal Chaudhury since deceased, the brother of the petitioner Birendra Lal Chaudhury, It appears that after the polling had gone on for some time on March 10, it was discontinued and the election was not held on that date. By a subsequent order the Local Government fixed another date, namely, April 15, 1934 for holding the said election and directed that the proceedings should commence from the stage where the election had failed on the previous occasion. On April 6, 1934, Babu Sachindra Lal Chaudhury died. The grievance of the petitioner is that in spite of this event the Chairman of the Municipality did not countermand the notice of the poll and invite fresh nominations, but that he merely cancelled the name of the deceased candidate from the list of the candidates printed on the voting papers and allowed the election to be held on the fixed date, with the result that the opposite parties were declared elected. The petitioner filed the petition under Section 36 of the Bengal Municipal Act before the District Judge of Hooghly questioning the validity of the election on various grounds. The matter was heard by the learned Subordinate Judge Mr. Dinesh Chandra Sen who by his order dated July 28, 1934, dismissed the petition. Against that order the petitioner has obtained this Rule.

3. One of the grounds urged is that the learned Subordinate Judge misconstrued Section 23, Sub-section (2), Clause (iii) of the Bengal Municipal Act in that he held that the occupier of a holding is not required to carry on a trade or profession for the period of 12 months immediately preceding the election within the limits of the Municipality. It is contended that the learned Subordinate Judge should have held that the necessary qualification is that a person must have been carrying on some trade or profession for not less than 12 months. In my judgment this objection is hit by the rule laid down in the case of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6, and it does not call for revision by this Court under Section 115 of the Code of Civil Procedure. The petitioner, however, has obtained this Rule and I have allowed the matter to be argued on the merits.

4. Clause (iii) in question, as it reads, is obviously divided into three parts (1) residence for a period of 12 months immediately preceding the election or (2) occupation of a holding for such period, and (3) carrying on any trade or profession. The first two parts are disjunctive. The conjunctive 'and' of the third part applies to both the previous parts. But nevertheless the third part is also a separate qualification like the other two. It has been contended that the learned Judge was not entitled to consider that there was a comma after the word 'holding' and before the clause 'and carrying on any trade or profession'. No doubt there is an old rule that punctuation is not a part of the statute, but where it is not contended that the punctuation is wrongly placed, there is no reason why the punctuation should not be taken as a good guide for the purpose for which it is there, namely, to understand the sense of the passage. Moreover, if the punctuation is objected to, the whole of it must be discarded; otherwise, as in the present case, if the comma in question be ignored and at the same time the previous comma be kept, the sense would be something quite different. Having regard to the fact that the words 'for the said period immediately preceding such election' do not occur in the last clause under consideration, I think the learned Judge was right in holding that this clause is not governed by that condition. I am confirmed in this view by the language of the section as it stood -before the amendment. The amendment makes, a difference, for it is now made clear that the provision for carrying on trade Or profession is not governed by the condition as to the minimum period of 12 months;

5. Another objection is that in passing an order directing the petitioner to supply particulars demanded by opposite party No. 1 the Court below exercised a jurisdiction, not vested in it by law. It appears that one of the grounds on which the objection was based was that the opposite party No. 1 committed corrupt practices within the provisions of Section 29 of the Act, the particulars of the corrupt practice as stated in the petition being to the effect that the opposite parties hired conveyances for bringing the voters to the polling station and that votes had been purchased by them. In answer to this the opposite parties made an application praying for an order directing the petitioner to supply the following particulars connection with the allegations of corrupt practices, namely, (i) the names of the person or persons whose conveyances had been hired, (ii) the names of the person or persons who paid the hire and purchased votes and (iii) the names of the voters carried in those conveyances and whose votes were purchased, with times and places where the alleged occurrences took place. In reply the petitioner filed an application refusing to disclose the particulars on the ground that that would be disclosing evidence. Thereupon the learned Subordinate Judge on failure of the petitioner to supply the details wanted, did not allow the petitioner to adduce evidence in support of the allegations of corrupt practices. It is contended that the petitioner was quite within his rights in refusing to supply the particulars asked for, as under Order VI, Rule 2 of the Code of Civil Procedure the pleading shall not disclose the evidence by which the acts stated are to be proved. Now the procedure to be followed by a Judge in an enquiry into an election petition is to be guided by certain rules framed by the Local Government under the Act. Under Rule 5 it is no doubt laid down that every election petition shall be enquired into, as nearly as may be, in accordance with the procedure applicable under the Cede of Civil Procedure to the trial of the suits. But this has to be read along with the other provisions in the rules and the relevant provision is Rule 2 which lays down that an election petition shall contain a statement in concise form of the material facts on which the petitioner relies and the particulars of any corrupt practice which he alleges. Sub-rule (3) of Rule 2 lays down that on failure the Judge shall return the petition for such amendment as maybe necessary. Therefore this is a special provision which has to be complied with. In the present case what was wanted by the opposite party was not a list of the witnesses who were going to prove the allegations of corrupt practices, but what was wanted was only a statement of certain particulars without which the allegations were of a vague character. It is contended that the proper procedure for the Judge was to return the plaint for amendment. But this is not what the petitioner asked for. On the contrary he definitely refused to disclose the particulars and the Court was therefore constrained to disallow the petitioner from giving evidence on this point. Therefore there is no substance in this ground.

6. The third ground urged is that, since one candidate had died before the poll but after nomination, the Returning Officer should have countermanded the notice of poll and should not have allowed the election to be held by simply cancelling the name of the deceased candidate. The learned Judge has pointed out that neither in any specific section of the Act, nor under the rules, is any provision made for a Returning Officer to report to Government in case of the death of a candidate and withhold the poll. The Judge's reference to Section 25 of the Act is perhaps not very helpful. But Section 26 does provide that on failure of election the Commissioner would be appointed by the Government and such contingency might arise where all the candidates at a particular election should fail to appear for some reason or other. When once the list has been made final, if one out of several candidates should fail, it cannot be said that the Act or the rules contemplate that the entire election is to be held up and that nominations should be called afresh. In the present case the Local Government have definitely fixed April 15, as the date for the election to begin from the stage where the previous election had failed and the election had not become impossible by reason of the death of one out of the four (4) candidates. I agree with the learned Judge in thinking that it was not necessary in the circumstances to call for fresh nominations. There is, therefore, no substance in this point also.

7. The Rule must, therefore, stand discharged with costs, hearing-fee being assessed at one gold mohur.


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