Balai Lal De vs Subodh Chandra Shome

P.N. Mookekuee, J.—This Rule is directed against an order of the learned Subordinate Judge, 1st court. Hooghly, setting aside the entire election in Ward No. 11 of the Kotrung Municipality. The order was made u/s 39 of the Bengal Municipal Act in a suit brought u/s 30 for the setting aside of the election of Commissioners of the said Ward.

The point involved is a short one, although it is not free from difficulty. The section requiring consideration is mainly Section 38 of the Act. or more precisely, els. (c) and (d) thereof, and the main controversy is whether because of the improper acceptance of the nomination paper of a particular candidate (who has come out successful along with others), to wit, pro-forma opposite party No. 3 Bhowani Charan Banerjee in the present case, only his election or the whole election, that is, the election of the entire Ward including that of the other Commissioners, namely, the present Petitioners and pro-forma opposite party No. 2, elected therefrom, should be set aside.

The relevant facts lie within a short compass and they may be stated as follows:

In the General Election, held on March 30. 1956, the Petitioners and opposite parties Nos. 2 and 3 were elected Commissioners of the Kotrung Municipality from Ward No. 11. Opposite party No. 1 who was also a candidate for election from the said Ward but who was unsuccessful, having secured only 267 votes as against the Petitioners'' 972, 972, 932 and 867 and opposite parties Nos. 2 and 3''s 467 and 460, respectively, applied on April 10, 1956, after the election results had been published, for the setting aside of the above election u/s 36 of the Bengal Municipal Act. Various grounds were urged in the court below in support of the above application which was resisted by the present Petitioners and also pro-forma opposite parties Nos. 2 and 3 who were the elected candidates, as stated herein before; but, for our present purpose, it is only necessary to refer to the alleged improper acceptance of the nomination paper of pro- forma opposite party No. 3 which has been found by the learned Subordinate Judge to have vitiated the election and on account whereof the entire election from the Ward has been set aside by him. The other grounds urged against the validity of the election, or, rather, the allegations in support of the same, have been negatived by the learned Subordinate Judge and his decision thereon has not been challenged before us. Some attempt was made by the Petitioners'' learned advocate to assail the finding of the learned Subordinate Judge that pro-forma opposite party No. 3 was not a qualified candidate for the election and that his nomination paper ought not to have been accepted and to support the entire election, but eventually it could not be persisted in and the Rule was practically argued by him on the footing that the said finding of the learned trial Judge was correct and his final submission was that in any event, that improper acceptance, although it would certainly invalidate the election of that particular candidate, would not necessarily materially affect the election of the others and. there being nothing else to show in the present case that the entire election had been vitiated as a result thereof, the learned Subordinate Judge was not justified in setting aside the whole election of the Ward in question, namely, Ward No. 11. The propriety of this submission has been challenged by the contesting opposite party No. 1 on whose behalf his learned Counsel supported in its entirety the order of the court below. Pro-forma opposite party No. 2 supported the Petitioners in all their submissions and pro-forma opposite party No. 3 contended that he was a properly qualified candidate for the election and his nomination paper had been validly accepted by the appropriate authority and that the election as a whole should be upheld, thus supporting the Petitioners in their extreme contention.

In view of the above contentions of the parties, we shall first give in brief our reasons for accepting the finding of the learned Subordinate Judge that the nomination paper of pro-forma opposite party No. 3 was improperly accepted and then proceed to consider whether the whole election of the Ward or only the election of the disqualified candidate, proforma opposite party No. 3, should be set aside.

By the learned Subordinate Judge pro-forma opposite party No. 3 has ben found to be disqualified on the ground that he was "in arrears for more than three months in payment of rates or "taxes" u/s 22(2)(g) of the Act. On the materials before us, there can be no question that the above finding of the learned Subordinate Judge is correct. The records show, inter alia, that the said opposite party is the recorded owner of holdings Nos. 180, Kotrung G.T. Road and 16A, Gabtala Lane and that the taxes for the said two holdings for the 3rd quarter 1955-56 were outstanding after the due date, namely, 1st October 1953 (vide Section 153(2), of the Act) and up to the date of nomination, (which was the relevant date for judging the eligibility of candidates), namely, February 24, 1957 (which was certainly beyond three months from the due date 1st October 1956). It is argued, however, that no bill having been served or presented by the Municipality and no demand having been made for the said taxes, the result in payment thereof cannot be construed to make them arrears within the meaning of the relevant Section 22(1)(g) of the Act. We are not impressed by this argument. Non-payment of the tax in time is enough to make it an arrears and no bill need be served or submitted and no demand need be made to attract Section 22(1)(g). Hakim Soban Ali v. Kanai Lal Sarma (1956) 60 C.W. 1ST. 948. fully supports this view. We agree with the said decision and reject the submission to the contrary. In the above view, we hold that pro-forma opposite party No. 3 was not qualified to stand for the election and his nomination paper should not have been accepted.

We come now to the real point in this Rule, namely, whether the improper acceptance of the nomination paper of pro-forma opposite party No. 3, had the effect of vitiating only his election or necessarily also the election of the other candidates or, in other words, the whole election of the Ward in question, namely Ward No. 11.

The section (Section 38) is in these terms:

If the Judge, after holding an inquiry u/s 37, is satisfied that

(a) a candidate has committed any corrupt practice within the meaning of Section 29 of the purpose of the election, or

(6) the election has not been a free election by reason of the general employment of bribery or undue influence as defined in the Indian Election Offences and Inquiries Act, 1920, or by reason of any form of general intimidation, including any form of social boycott, or

(e) the result of election has been materially affected by any non-compliance with this Act or any rule made under this Act or by any mistake in the forms required thereby or by any error, irregularity, or informality on the part of any officer charged with or carrying out any duty under this Act or rules made under this Act, or

(d) the result of election has been materially affected by improper acceptance or refusal of candidate''s nomination, he shall sot aside the election of such candidate, if he has been elected and if the election is set aside for any cause which is the result of acts of a candidate or his agents may declare that candidate to be disqualified for the purpose of such fresh election as may be held u/s 42.

On the interpretation of the section, courts have differed and, while in Mohammad Anisul Islam and Anr. v. Kali Kumar Mukherjee (1954) 59 C.W.N. 127 the view has been apparently taken that, in a plural member constituency, the successful challenge to the election of any one candidate would invalidate the whole election, in Ahmed Hossain Vs. Aswini Kumar and Others, , it appears to have been held that the invalidity of the election of a particular candidate in a plural member constituency does not necessarily affect the entire election.

That, under the terms of the section, it is necessary to find, in the case of an improper acceptance or rejection of a nomination paper, that the result of the election has been materially affected by reason thereof, admits of no doubt, but the question remains whether such finding follows as a matter of course from improper acceptance or rejection. Judicial opinion on the point is not uniform, but the question having been considered by the Supreme Court in connection with an analogous provision of the representation of the Peoples Act, the matter should be deemed to have been set at rest, so far as this country is concerned. That provision appears to have been similarly worded in its material terms and the Supreme Court has pointed out in its latest decision Surendra Nath Khosla Vs. Dalip Singh, that, while in the case of an improper rejection of a nomination paper there is a presumption that by reason thereof the entire election has been materially affected, there is no such presumption in the case of an improper acceptance and the applicant for setting aside the election on this ground must show that the election as a whole has been materially affected by reason thereof before the whole election can be set aside simply on that ground. The effect of the decision is that where a nomination paper is improperly rejected, there is a presumption that the whole election has been materially affected and it should be set aside in its entirety unless the party, pleading to the contrary, is able to prove that the entire election has not been materially affected as a result of the improper rejection of the particular nomination paper, while, in the case of an improper acceptance, there is no presumption to the above effect and the party, seeking to set aside the entire election on the above ground, must affirmatively establish that the result of the whole election has been materially affected by the improper acceptance of the said nomination paper. In other words, the onus in the first case is on the opposite party and in the second on the applicant or the Petitioner. There can be no question, however, that the election of the candidate, whose nomination paper has been improperly accepted, cannot stand, as, the nomination being invalid, his election is liable to be set aside u/s 38(c) and also u/s 38(d), as there can be no doubt that it has been materially affected by such improper acceptance. In the case before us, the learned Subordinate Judge has set aside the entire election simply because the nomination paper of one of the candidates, namely, of pro-forma opposite party No. 3. was improperly accepted upon the view that, this being a plural constituency, improper acceptance of the nomination paper of any of the successful candidates must necessarily have the effect of materially affecting the whole election. This is undoubtedly supported by the broad general observations in Rathis Chandra Munshi v. Amulya Charan Ghatak (1930) 34 C.W.N. 741, 742, 743. and Mahammad Anisul Islam and Anr. v. Kali Kumar Mukherjee 19541 59 C.W.N. 127, at Pp. 132, 133, 134, 135 but it is opposed to the exposition of the law by the Supreme Court in Vashit Narain Sharma Vs. Dev Chandra and Others, . and Surendra Math Khosla v. S. Dalip Singh Supra. which also where cases of plural constituencies but where a different view was taken. We cannot, therefore, accept the view of the learned Subordinate Judge and set aside the election of the Petitioners and pro-forma opposite party No. 2 merely because the nomination paper of the other successful candidate, namely, pro-forma opposite party No. 3, was improperly accepted. The letter''s election would, of course be set aside, but the election of the other successful candidates, namely, the Petitioners and pro-forma opposite party No. 2, would stand.

The Rule, accordingly, succeeds in part the order of the learned Subordinate Judge, setting aside the election, so far as pro-forma opposite party No. 3 is concerned, is upheld, but it is set aside as against the Petitioners and pro-forma opposite party No. 2 and their election is maintained.

There will be no order for costs in this Rule.

Sarkar, J.

I agree.