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Hrisikesh Bhattacharjee and anr. Vs. Brojendra Mohan Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Nos. 189 and 190 of 1953
Judge
Reported inAIR1953Cal731,58CWN262
ActsBengal Village Self-Government Act, 1919 - Sections 101 and 17C; ;Bengal Village Self-Government Rules, 1919 - Rules 11 and 12; ;Constitution of India - Article 227
AppellantHrisikesh Bhattacharjee and anr.
RespondentBrojendra Mohan Bhattacharjee and ors.
Appellant AdvocatePurushottam Chatterjee and ;Rabindra Narayan Chakravartty, Advs.
Respondent AdvocateManindra Nath Ghose and ;Anil Kumar Sett, Advs.
Cases ReferredSabitri Motor Service Ltd. v. Asansol Bus Association
Excerpt:
- .....the elections, namely, september 9 and 10, 1951, as required under the strict terms of the said rule, the elections in question were invalid and in that view of the matter, he set aside the elections of the petitioners. 3. the petitioners then moved the learned commissioner, burdwan division, against these orders of the learned additional district magistrate. the resulting cases were, however, dismissed as the learned commissioner also was of the same opinion as the learned additional district magistrate. against these concurrent orders of the learned commissioner, and the learned additional district magistrate, the present rules have been obtained by the petitioners. 4. rule 12, referred to above, is in these terms: 'the election shall be held on such date or dates and at such place.....
Judgment:

P.N. Mookerjee, J.

1. These two Rules arise out of two election petitions filed in connection with the election of members of Wards Nos. III and IV of the Bondul Union Board in the district of Burdwan. The elections were held on September 9 and 10, 1951. The petitioners in these Rules and the opposite parties were the rival candidates. The petitioners were elected as the members from those two Wards and against their elections the opposite parties filed election petitions, out of which the present Rules have arisen.

2. The learned Additional District Magistrate of Burdwan who heard these election petitions came to the conclusion that the notification under R. 12 of the Rules under the Village Self-Government Act which admittedly applied to these elections was made in the case of both these Wards on 4-9-1951, and as, therefore, the said notification was not made at least one week before the dates fixed for the elections, namely, September 9 and 10, 1951, as required under the strict terms of the said rule, the elections in question were invalid and in that view of the matter, he set aside the elections of the petitioners.

3. The petitioners then moved the learned Commissioner, Burdwan Division, against these orders of the learned Additional District Magistrate. The resulting cases were, however, dismissed as the learned Commissioner also was of the same opinion as the learned Additional District Magistrate. Against these concurrent orders of the learned Commissioner, and the learned Additional District Magistrate, the present Rules have been obtained by the petitioners.

4. Rule 12, referred to above, is in these terms: 'The election shall be held on such date or dates and at such place or places within the union as may be fixed by the Circle Officer subject to rule 1. The place or places at which and the hours between which the voters will attend for the purpose of giving their votes shall be notifiedwithin the union by the publication of notices and by beat of drum at the same time as the list of candidates is published under R. 11.'

5. The reference to Rule 11 in the last part of the above quoted rule makes it necessary to set out here the terms of the said rule 11 for the purpose of the present cases. That Rule 11 is in these terms:

'If the number of candidates exceeds the number of vacancies, a list showing, ward by ward, the names of candidates who are duly qualified shall be published in each ward in a conspicuous place and by beat of drum at least one week before the date fixed for the election.'

6. It is clear from a reading of the two rules, quoted above, that the notification under Rule 12 and the publication under Rule 11 must both be at least one week before the date fixed for the election. The question however, is whether this requirement as to a minimum period between the date of the said notification and publication and the date of election is imperative or merely directory. It is quite clear that if this requirement is imperative, any breach thereof would invalidate the election. It is also quite clear that if this requirement is directory, the breach thereof would not necessarily invalidate the election if there has been substantial compliance in the matter of the said requirement. In such a case strict compliance with the statutory requirement would not be necessary.

7. The learned Commissioner and the learned Additional District Magistrate both appear to have been of the opinion that this requirement as to the minimum time is imperative and, accordingly, having regard to their finding that the notification under R. 12 in the present cases was made on 4-9-1951, whereas the elections were to be held on the 9th and the 10th, that is, within less than a week, and there being thus no strict compliance with the statutory provision as to the minimum time, they felt obliged to set aside the elections on account of the non-observance of this statutory requirement. In our opinion, however, that view is not correct. The requirement as to time in such statutes, although put in a mandatory form, is generally directory. That has been held in a series of English decisions which were all considered and the principle whereof was followed and applied in the recent decision of this Court in the case of -- 'Ajit Kumar Sen v. State of West Bengal', 57 CWN 613 (A). In this latter case also, it was held that such a provision was directory in nature and substantial compliance therewith -- as opposed to strict observance thereof -- would be sufficient. In the present cases, the delay in one case was by one day and in the other only by two days and it also appears that over 75 per cent, of the voters in one case and over 88 per cent, in the other participated in the elections. There was thus substantial compliance with the relevant statutory requirement and its purpose was sufficiently achieved. In such circumstances, we are not prepared to agree with the two tribunals below that the elections ought to be set aside merely because of the above non-compliance with the provisions of R. 12.

8. In one of the eases, viz. Civil Revision Case No. 190 of 1953, relating to Ward No. 4, there was another point raised in support of the election, petition, namely, that one of the qualified voters, by name, Arjan Shah, had been illegally prevented by the Returning Officer from voting in the elections. It appears, however, that the margin of votes between the successful candidates and the unsuccessful one was four. The illegal rejection ofone vote, therefore, made no real difference andits inclusion would not have been of any material consequence.

9. We, accordingly, hold that neither the non-observance of the requirement as to time, as prescribed in R. 12, nor the other ground mentioned, namely, the prevention of the voter Arjan Saha from voting in the elections, would be any valid ground for the setting aside of these disputed elections.

10. Our attention has also been drawn in thisconnection to Section 17(C), Bengal Village Self-Government Act, the relevant portion of which runs inthese terms:

'No act done or proceeding taken under thisAct shall be questioned on the ground merely of(b) any defect or irregularity not affecting the merits of the case.'

11. In our opinion, in the circumstances of [these cases, the 'irregularities, complained of in I the matter of the disputed elections, apart from the fact that they are not, by themselves, sufficient to vitiate the said elections even without Section 17 (C), are also fully covered and cured by that express provision of the statute.

12. We hold, therefore, that the learned Additional District Magistrate was not right in setting aside the elections in question on the grounds, found by him, nor was the learned Commissioner justified in maintaining the said orders of the learned Additional District Magistrate.

13. We would also add that the strictures, passed by the tribunals below, on the conduct of the President of the Union Board, are not justified by the materials on record.

14. We would, accordingly, make these Rules absolute, set aside the orders complained of, and dismiss the election petitions, filed by the contesting opposite parties, unless we feel inclined to accept the last submission of Mr. Ghose that, in the instant cases before us, interference under Art. 227 of the Constitution would not be quite proper or justified.

15. In opposing Rules under Article 227 similar submissions are usually made but they are not necessarily accepted, and, although no hard and fast rule can be laid down in the matter, the basic principles upon which the Court should act in the exercise of its plenary and wide powers under that Article have been broadly discussed in the recent case of this Court reported in --'Haripada Dutta v. Ananda Mandal', : AIR1952Cal526 (B). The Special Bench decision of this Court -- 'Sabitri Motor Service Ltd. v. Asansol Bus Association', : AIR1951Cal255 (C), relied or by Mr. Ghose, contains nothing to the contrary and as, in our opinion, the cases before us sufficiently come within the legitimate bounds of the rule of interference under Article 227 of the Constitution, as expounded in -- ' : AIR1952Cal526 (B) we feel no hesitation in rejecting Mr. Ghose's submission.

16. The setting aside of a valid election apart from the manifold inconveniences and hardship resulting from it, -- causes grave injustice to the elected; candidate and to the constituency or the electorate or the people concerned as well. It is therefore, only meet and proper that when an election has been unlawfully set aside and the matte has come to this Court under Art. 227 of the Constitution for necessary redress, there being no other remedy open or available, the illegal order should not be allowed to stand.

17. Admittedly, also, the petitioners in the present cases have no other remedy.

18. We, accordingly, make these Rules absolute, set aside the orders complained against, and dismiss the opposite parties' election petitions, challenging the disputed elections.

19. In the circumstances of these cases, however, we make no order as to costs.

Guha Ray, J.

20. I agree.


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