Rathis Chandra Munshi v. Amulya Charan Ghatak

The Judgment of the Court was as follows:—

Suhrawardy, J.:— This appeal arises out of a suit relating to a Municipal election at Ranaghat within the District of Nadia. The facts are that at the Municipal election held on the 17th December 1927 the Defendants Nos. 1 and 2 who are the Appellants before us were declared elected. The Plaintiff who was a rival candidate along with another person named Abani Kanto Bose were defeated. Under Rule 15(1) of the Rules framed by the Government of Bengal in 1927 in exercise of the powers conferred on it by secs. 15 and 69 of the Bengal Municipal Act, 1884, every person who is a candidate for election shall send his name to the Chairman in writing not less than 28 days before the date fixed for election. In the present case the date fixed for election was the 17th December 1927. The nomination paper submitted by Defendant No. 1 was at 11 A.M on the 19th November 1927. The Plaintiff applied to the District Magistrate under Rule 16 to omit the name of Defendant No. 1 from the list of candidates inasmuch as the nomination paper filed by him was not submitted within time. The District Magistrate however held that it was submitted in time and ordered the election to be held with the result that the Appellants were elected. The Plaintiff thereafter brought the present suit in the Civil Court for a declaration that the election of Defendants Nos. 1 and 2 was void and liable to be set aside. The suit was dismissed by the Munsif but on appeal the learned District Judge of Nadia held that the election of Defendants was void and ordered it to be set aside. The Defendants Nos. 1 and 2 have appealed. The basis of the judgment of the learned District Judge is that the nomination paper filed by Defendant No. 1 was not submitted within 28 days as provided by Rule 15(1) and that the provision of that Rule is imperative. The Defendant No. 1 therefore was not a duly qualified candidate and his election was illegal. The learned District Judge is also of opinion that as the election could not be partially set aside, the election of both the Defendants must be set aside. It is argued on behalf of the Appellants that the provision of Rule 15(1) is not imperative but is merely directory, and is of such a nature that any irregularity in respect thereof may be waived by the officer concerned in holding the election. In this case the Chairman who presided at the election accepted the nomination paper of Defendant No. 1 and the District Magistrate who seems to be the final controlling authority adopted the view of the Chairman. We are however unable to agree with the view taken by the Chairman and the District Magistrate with regard to the irregularity of procedure complained of in this case. The words used in Rule 15(1) are quite clear and are capable of one meaning only, namely, that the person who is a candidate for election shall send his name to the Chairman in writing not less than 28 days before the date fixed for the election; in other words there must be 28 clear days between the submission of the nomination paper and the day on which the election is to be held. According to this calculation the nomination paper ought to have been submitted before the midnight of the 18th November. There can be no doubt that there has been an infringement of this Rule. See Rawlinson's Municipal Corporation Acts, 10th Ed., para. 230, p. 155.

The next question is whether the Rule is merely a Rule of procedure or it is so substantial as to affect the validity of the election. Rule 15 appears under the heading “Qualification of Candidates”. Rule 14 says that any person qualified to vote and not disqualified under the Act shall be qualified to be elected a Commissioner. Rule 15, as I have already said, lays down that every person who is a candidate shall send his name to the Chairman not less than 28 days before the date fixed for the election. These are the two qualifications mentioned of a person who may validly be a candidate at a municipal election. Want of any of these two qualifications disqualifies the candidate. It cannot therefore be said that Rule 15 only concerns itself with the procedure to be followed at the election. It seems to me, however, that it is a matter of substance and dealing, as it does, with the qualifications of candidates at a municipal election, it must be taken to be laying down a qualification without which a candidate cannot be said to be duly qualified. Whatever the reason of the Rule may be, it is clear that the Rule made it incumbent upon the intending candidate to send his name at a certain time fixed by the authorities. If on the other hand it is held to be directory and can be relaxed at the pleasure of the person holding the election, one does not know where to stop and up to what limit of time the indulgence may be shown. It seems to me that this Rule should be strictly observed. I accordingly agree with the view taken by the District Judge that Rule 15 not having been complied with in this case it must be held that Defendant No. 1 was not qualified at the time of the election and his election should be set aside.

The next question that has been argued on behalf of the Appellants is that the order of the Magistrate holding that the nomination paper sent in by Defendant No. 1 was in time within Rule 15 must be deemed final under Rule 16 and is not liable to be questioned in a civil suit. Rule 16 says that any person whose name has been excluded from the list of candidates or who disputes the claim of any other candidate to be on the list, may apply to the Magistrate for an order to have his name included or any name omitted from the list and the order passed thereupon by the Magistrate shall be final. The previous Rules framed by the Local Government in 1896 contained similar provisions; and the question in the form in which it has been placed before us came up for consideration in Nishi Kanta Chowdhury v. Gopeswar Chatterjee to which decision I was a party. There it was held that sec. 15 of the Bengal Municipal Act, 1884, confers and at the same time controls and limits the power of the Local Government to frame rules under the Act and it enjoins that such rules should not be inconsistent with any provision of the Act and provides that nothing contained in that section nor any Rules made under the authority of the Act shall be deemed to affect the jurisdiction of the Civil Courts. There cannot be any doubt as to the intention of the legislature in putting this proviso to sec. 15. That section opens with the words “The Local Government shall lay down such rules not inconsistent with the provisions of the Act”. The jurisdiction of the Civil Courts has been specially reserved under the provisions of the Act. One kind of rules which the Local Government is authorised to frame under sec. 15 relates to qualifications required to entitle a person to stand as a candidate at an election and in respect of the mode of election and the authority which shall decide the disputes relating thereto. The Local Government has laid down that the authority which shall decide disputes relating to elections shall be the District Magistrate and hence it declares that his order shall be final. The Civil Courts under sec. 9 of the Civil Procedure Code have jurisdiction to try all suits of a civil nature (and a dispute relating to election is a suit of a civil nature) unless there is any enactment to the contrary. There is no enactment to the contrary; on the other hand, there is an express proviso to sec. 15 of the Bengal Municipal Act, 1884, retaining or conferring on Civil Courts jurisdiction to try suits relating to elections. I may note that this objection with regard to the jurisdiction of Civil Courts was not taken in any of the Courts below for the obvious reason that suits of this nature are not uncommon in the mofussil. I am fortified in my view by the absence of any provision either in the Act or in the Rules for setting aside an election by election petition, the legislature thereby indicating that it can be questioned in a civil suit. I am of opinion that the Civil Court has jurisdiction to declare an election held under the Municipal Act invalid, and the order of the District Magistrate is final so far as executive authorities are concerned.

The last point which has been urged is with regard to the decree passed against the Defendant No. 2. There is no doubt that Defendant No. 2 is not concerned in any irregularity or illegality connected with the election. His nomination paper was submitted in time and he was duly elected. The learned District Judge, however, thinks that it would be in the interest of all parties that the whole election should be set aside and he ordered accordingly. I gave my anxious consideration to this matter, because I find that Defendant No. 2 is not guilty of any omission or commission and has been penalised for the irregularity committed by the Defendant No. 1. But it seems to me that an order to be passed in a joint election must be based on pome principle. There is no doubt that if the election of Defendant No. 1 alone is set aside there will be one vacancy in the constituency. But the intention of the legislature is that two persons out of the total number of candidates should be elected from a particular ward at one election. It did not contemplate that an election may be held piecemeal. Besides, if in this case the Magistrate or Chairman had refused to accept the nomination of Defendant No. 1, as they should have done, there would have been a fight between the other three candidates and it is difficult to say how the votes that were cast in favour of Defendant No. 1 would have been divided among them.

Another difficulty in the way of upholding an election partially suggests itself to me. If a fresh election is held in place of Defendant No. 1 only, the voters who had voted for him will vote for one candidate only though under the law they are entitled to vote for two. In cases in which one candidate has to be elected and the rival candidate who has secured the next largest number of votes got the election set aside, it has been held that the latter is not entitled to be declared elected and a fresh election has always been ordered to be held. See the case of Nishi Kanta Chowdhury v. Gopeswar Chatterjee . On the whole I think that in fairness to the constituency and the other candidates it will be a proper order to pass in this case that the entire election should be set aside and a fresh election held, if necessary.

There is one sentence in the learned District Judge's judgment which is not clear but which ought to be made clear. The learned District Judge after declaring the election contrary to law and setting it aside directs that the first and second Defendants are restrained by a perpetual injunction from sitting on the municipal Board. I think that by “perpetual” the learned Judge means—so long as they are not duly elected.

The result is that this appeal is dismissed. Each party should in the circumstances of this case bear his own costs throughout.

Costello, J.:— I desire to add a word or two. I am not altogether satisfied as to the effect of Rule 16 of the Bengal Municipal Election Rules. It is quite clear that the provisions of Rule 15 are imperative and not merely directory. It was held in England in the case of Monks v. Jackson (2) which arose in connection with an election under the Municipal Election Act, 1875, that the provisions of that Act requiring nomination paper to be delivered to the Town Clerk by the candidate himself or by his proposer or seconder personally and not by an agent were obligatory and were not complied with by the delivery of nomination paper to the Town Clerk by an agent of the candidate. In the same case it was held that an objection to a nomination in the circumstances I have mentioned was one cognizable by the Mayor who was the returning officer but that his decision disallowing it may be questioned on a petition against the return of the successful candidate. It is to be observed that for the purposes of election under the Bengal Municipal Act the Chairman of the Municipality is vested with duties equivalent to those of a returning officer under the English system of election. But objections under Rule 15 of the Bengal Municipal Election Rules are not to be disposed of by the Chairman but by the Magistrate under the terms of Rule 16. Even under the English system it was held in Howes v. Turner (3) that although the Mayor of a Corporation is empowered to deal with objections to nomination, he had no power to dispense with statutory requirements for the delivery of nomination papers. In other words, the Mayor as a returning, officer could not deal with an objection as to the time of delivery of nomination papers and that if he did, his decision might be questioned upon petition to the Election Court. But the case which is now before us is different in this respect that it is not the Chairman who as quasi returning officer is the person appointed to deal with any kind of objection but it is the Magistrate. That rather seems to indicate to my mind that the Magistrate for the purpose of Municipal election in Bengal is acting as a judicial officer. Rule 16 confers upon the Magistrate rather ample powers inasmuch as it says that the Magistrate shall make such order as to the insertion or omission of the name as appears to him to be just. Therefore it would seem that the Magistrate is vested with judicial authority, at any rate as to all matters dealt with in Rule 15. The fact that in Rule 16 it is declared that such order, that is to say, any order that the Magistrate may think fit to make, shall be final, seems to indicate that the Magistrate is to exercise some of the functions of an Election Court. It is the inclusion of these words that raises some doubt in my mind, as to whether it was not intended that this rule should confer upon the Magistrate, a judicial officer, summary jurisdiction once and for all to settle certain disputes in connection with municipal elections. Had it not been for the proviso to sec. 15 of the Bengal Municipal Act, it would to my mind in the circumstances be perfectly plain that so far as the decision of Magistrate with regard to disputes under Rule 15 goes, that decision would be final and conclusive for all purposes and could not be challenged after the election had in fact been held. But the proviso to sec. 15 does seem to suggest that inspite of Rule 16 there shall be a right to refer to the Civil Court where there has been an irregularity in connection with the holding of the election such as an unqualified candidate being allowed to go to poll. While expressing this doubt as to what is the effect of Rule 16 in the light of sec. 15 of the Act I am not prepared to disagree with what my learned brother has said. I entirely agree with him on the other points. Therefore I am of opinion that the election was void and must be set aside in its entirety.

P.C