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Bon Behari Mukherjee Vs. Makhan Lal Mukherjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal768
AppellantBon Behari Mukherjee
RespondentMakhan Lal Mukherjee and anr.
Excerpt:
- .....disposed of. the rule was issued on the opposite party to show cause why an order made by the learned district judge of the 24-parganas, upon a petition under section 36, bengal municipal act, should not be set aside. that order itself set aside the election of the petitioner as a municipal commissioner for ward no. 4 of the khardah municipality and directed a fresh election. against that decision the present rule has been obtained. in our opinion, the rule must be discharged on the short ground that the provisions of section 39-b, read with section 43, bengal municipal act, preclude us from calling in question the order of the learned district judge. that order was made on an election petition filed under section 36 of the act, and challenging the validity of the election upon.....
Judgment:

Bartley, J.

1. This matter was argued before us by the learned advocate for the petitioner at very considerable length, but it can, we think, be briefly disposed of. The rule was issued on the opposite party to show cause why an order made by the learned District Judge of the 24-Parganas, upon a petition under Section 36, Bengal Municipal Act, should not be set aside. That order itself set aside the election of the petitioner as a Municipal Commissioner for Ward No. 4 of the Khardah Municipality and directed a fresh election. Against that decision the present rule has been obtained. In our opinion, the rule must be discharged on the short ground that the provisions of Section 39-B, read with Section 43, Bengal Municipal Act, preclude us from calling in question the order of the learned District Judge. That order was made on an election petition filed under Section 36 of the Act, and challenging the validity of the election upon grounds not excluded by the Proviso to the Section. The learned Judge set aside the election on the ground that the nomination paper of the petitioner, the opposite party in this rule, had been improperly rejected, a decision within the terms of Section 38 (d) of the Act. Section 39-B of the Act, lays down that the decision or order of the Judge under Section 38 shall be final, and under the pro-visions of Section 43 of the same Act, no order passed in any proceeding under Sections 36 to 40 (both inclusive) shall be called in question in any Court. In our view, the provisions of Sections 39-B and 43 of the Act, above referred to, are sufficient to debar us from making any order by way of interference with the decision of the Court below.

2. It was suggested that if we held that the Code of Civil Procedure could not be invoked in this case, we might still intervene under Section 224, the old Section 107, Government of India Act. In view however of the actual wording of that Section, we cannot see any force in this contention. This rule must accordingly be discharged with costs -hearing fee, three gold mohurs. Let the record be sent down as early as possible, and the counter-affidavit be amended as prayed for, and kept on the record.

Nasim Ali, J.

3. I agree.


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