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Lakshmi Kanta De Vs. the Chairman of the Municipal Commissioner of the Naihati Municipality and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.169
AppellantLakshmi Kanta De
RespondentThe Chairman of the Municipal Commissioner of the Naihati Municipality and anr.
Excerpt:
bengal municipal act (iii b.c. of 1884), section 57 - person holding office of profit under municipality, whether qualified to be elected commissioner--election rules, rule 13, meaning of. - .....in the judgment of the commissioner of the division to be recorded in writing, he has become disqualified to continue in office under section 57. this is not a case of becoming disqualified after election or being disqualified to continue in office. rule 13 which was amended in 1898 now runs: 'any person qualified to vote under these rules, and not disqualified under section 57 of the act, shall be qualified to be elected as a commissioner.' one would think, reading that rule in the ordinary meaning of the english words, that a person who is disqualified under section 57 would be ipso facto disqualified for election. it is, however, argued that there is no rule against a disqualified person becoming a candidate and that he should be allowed to be elected and have his election.....
Judgment:

Charles Chitty, J.

1. This is an appeal by the plaintiff arising out of a suit brought by him against the Chairman of the Naihati Municipality and two persons who were elected as Commissioners for the ward for which the plaintiff considered himself a candidate. The election was to be held on 9th October 1915. Defendants Nos. 2 and 3 were duly nominated as candidates. We may assume that the nomination of the plaintiff was also in order but we find nothing as to that on the records. The Chairman was in doubt whether the plaintiff was qualified having regard to Section 57 of the Bengal Municipal Act. He referred it on 17th September 1915 to the Magistrate, presumably under Rule 29 of the Election Rules; and the Magistrate on the same day ruled that the plaintiff was not qualified to be eleoted as a Commissioner. An appeal to the Commissioner of the Division by the plaintiff was, we understand, unsuccessful. On 2lst December 1915 the plaintiff filed this suit praying for a declaration, first, that the cancellation of his candidature was ultra vires and illegal secondly, that defendants Nos. 2 and 3 could not sit as, duly elected Commissioners; and, thirdly, that the action of the Chairman in rejecting his application was illegal and ultra vires and that the election of the defendants was also ultra vires and void. Later on, a prayer was added for a permanent injunction restraining the defendants Nos. 2 and 3 from sitting.

2. Both the Courts have found, as a matter of fact, that the plaintiff held and still holds an office of profit1 under the Commissioners. That finding we cannot question in second appeal. The question then arises whether the Chairman, in these circumstances, was justified in excluding the plaintiff's name from the list of candidates which he was bound to prepare and publish under Rule 14.

3. It has been argued here that the disqualification of a Commissioner under Section 57 could only be determined by the Commissioner of a Division under Section 20 of the Act. Section 20, however, has no bearing on the present case. That Section only provides for the removal by the Commissioner of a Division of any Commissioner under various circumstances, one of which is--if, in the judgment of the Commissioner of the Division to be recorded in writing, he has become disqualified to continue in office under Section 57. This is not a case of becoming disqualified after election or being disqualified to continue in office. Rule 13 which was amended in 1898 now runs: 'Any person qualified to vote under these Rules, and not disqualified under Section 57 of the Act, shall be qualified to be elected as a Commissioner.' One would think, reading that rule in the ordinary meaning of the English words, that a person who is disqualified under Section 57 would be ipso facto disqualified for election. It is, however, argued that there is no rule against a disqualified person becoming a candidate and that he should be allowed to be elected and have his election forthwith cancelled or--possibly if it so pleased him--allowed to give up the office of profit or the contract or whatever it might be which disqualified him from continuing as a Commissioner. I do not think that the rules were framed with such an object in view, nor do I think, that that is a reasonable view to take. They must, I think, mean that only those persons shall be included in the list of candidates who are qualified to be elected: otherwise a list of candidates would be of no use whatever. In that view of the Rules, the present appeal fails and must be dismissed. It may be mentioned that it would be useless to make any order in this case, as it is now one of purely academic interest having regard to the lapse of time since the election took place. The appeal is dismissed with costs, one set to the defendant No. I and one set by the defendant No. 2.

Walmsley, J.

4. I agree.


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