Gour Chandra Das vs Joydeb Sadhukhan

P.N. Mookerjee, J.—These are two Rules directed against a decision u/s 38 of the Bengal Municipal Act. The proceeding (other suit No. 46 of 1952 of the Court of the District Judge, 24-Pargands, re-numbered on transfer as other suit No. 22 of 1952 of the Court of the third Additional Subordinate Judge, Alipore) commenced upon an application, filed on April 1, 1952, u/s 36 of the Act, challenging the validity of the last general election in ward No. 8 of the Barrackpore municipality, held on March 23, 1952. The election has been set aside by the learned Additional Subordinate Judge but he has also refused the prayer of the applicant (Plaintiff) before him (who had lost the election at the polls) to declare him elected as the commissioner from the said ward. The learned Judge has ordered a fresh election to be held in accordance with law.

With this decision of the learned Additional Subordinate Judge both parties have felt dissatisfied and they have obtained the present two Rules. In Civil Revision Case No. 188 of 1953, the Defendant whose election has been set aside by the learned Judge is the Petitioner and his grievance is that the learned Judge has erred in setting aside his election. In the other Rule (Civil Revision Case, No. 136 of 1953), the Plaintiff is the Petitioner and he has moved against the learned Judge''s refusal to declare him elected in place of the Defendant without a fresh election.

It will be convenient and proper, too, to take up first the Defendant''s Rule, namely, Civil Revision Case, No. 188 of 1953. In his application before the learned trial Judge the Plaintiff made various allegations against the validity of the election but the only ground which found favour with the learned Judge was that the Defendant was disqualified under the new Section 22(g) of the Bengal Municipal Act to stand as a candidate for the election in view of his being for more than three months "in "arrears in payment of" rates or taxes in respect of holding No. 6A of ward No. 4 of the municipality and that, accordingly, his nomination paper should have been rejected. As the learned Judge was of opinion that this improper acceptance of the Defendant''s nomination paper had vitiated the election he set aside the same and ordered a fresh election.

The propriety of the learned Judge''s finding against the Defendant has been assailed by his learned advocate Dr. Sen Gupta on two grounds. In the first place, it has been contended that the Defendant was not "in arrears", as found by the learned Subordinate Judge and the second point, pressed, questions the applicability of the statutory provision, incorporated in the new Section 22(g) of the Bengal Municipal Act, upon which the learned Judge relied, to the present case.

The first point can be disposed of without much difficulty. On the evidence before us there is little doubt that the Defendant was one of the owners of holding No. 6A of ward No. 4 of the municipality. It is also beyond dispute, on the materials on record, that the said holding was in arrear in payment of rates or taxes for more than three months on February 8, 1952, the date fixed "for the nomination of candidates" for the election (vide exs. 3 and 4). The Petitioner''s argument that he was not a recorded owner of the said holding and that, therefore, he was not "in arrears" within the meaning of the said provision of Section 22(g), is hardly acceptable in view of the said exs. 3 and 4 the duplicate or counterfoil receipt and the demand and collection register, notwithstanding the omission of his name in the assessment list, ex. A. Even apart from that, the Petitioner cannot deny his liability for the unpaid rate or tax as, undoubtedly, he was, at the relevant time, one of the owners of the defaulting holding. Section 132 of the Bengal Municipal Act prescribes that "except as otherwise provided by this Act "any rate which is assessed on the annual value of a holding shall "be payable by the owner of the holding". There can be no question that the use of the singular includes also the plural and, if there be a plurality of owners, all of them would be liable and each of them would also be liable for the rate or tax of the holding. There are no exceptions provided in the Act which would exempt the Petitioner who, as found above, is one of the co-owners of the said holding No. 6A, from his liability to pay the rates or taxes of the said holding. The definition of "owner" in Section 3(38) of the Act merely extends the natural meaning of the term and widens its scope by bringing within it many persons who would not be otherwise included within the term "owner", that is, who would not be owners according to the natural meaning of the term. There is nothing in the Act to suggest that the "owner", mentioned in Section 132, means only the recorded owner. It is true that, u/s 138 of the Act, the name of the owner is to be included within the assessment list but Section 139 which makes entries in the assessment list conclusive proof of certain matters for certain purposes does not refer to the ownership of the holding or to the person liable for its rates or taxes. We, accordingly, overrule the first point, urged in support of this Rule, and hold that, on February 8, 1952, the date fixed for nomination the Petitioner was liable for the rates or taxes of holding No. 6A of ward No. 4 of the municipality and was "in arrears" in payment of the same "for more than three "months".

The Petitioner''s second point raises a more difficult question. The statutory declaration for the disputed election was made on April 27, 1951, and, as we have said above, February 8, 1952, was the date fixed "for the nomination of candidates". In between these two dates the Bengal Municipal Act was amended and the new Section 22(g) came into operation on October 27, 1951. The Petitioner contends that the election had already begun with the declaration, made on April 27, 1951, and, as, on that date, he was qualified, according to the law, as it then stood, to stand as a candidate, there being no Section 22(g) in the statute book at that time, he had, at the date of introduction of the said new section, namely, October 27, 1951, a "vested" or an "acquired" right to stand in that election, and that right could not be affected by the change of law, there being nothing in the amending statute to give it, namely, the amended or the new Section 22(g), any retrospective effect. In our opinion, the Petitioner''s contention cannot be accepted.

Nomination is the foundation of a candidate''s right to go to "the polls" and a valid nomination is an essential prerequisite for a valid election. The nomination is for the purpose of the election and must, therefore, be of a person eligible for the same. In other words, a candidate or a person nominated must be qualified to be elected, which means,-where the election is of a commissioner under the Bengal Municipal Act, as in the present case,-that he must possess the qualifications, prescribed as necessary for the purpose in Section 23 of the Act, and must not be suffering from any of the disqualifications or disabilities, mentioned in Section 22. And, evidently also, he must be so qualified on the date fixed "for the nomination of candidates". Otherwise, his nomination will not be valid. The crucial date for testing the eligibility of a candidate is, therefore, at the earliest, the date fixed "for the nomination of candidates" and the theory of "acquired" or "vested" right, if any, in the matter of eligibility for election must be applied, if at all it is relevant in such cases, on the basis of the state of things, existing on that date. Any earlier date is wholly irrelevant for the purpose. In the above view of the matter, the relevant law on this part of the case would be the law, prevailing on the "date of nomination", that is, the date fixed "for the nomination of candidates", and the theory of "acquired" or "vested" right would not make that law inapplicable even if the law that was in force, immediately before this date, was different. The new Section 22(g) would, therefore, apply to the present case and the Petitioner''s argument to the contrary must fail.

It seems to us further that, in matters like this, "retrospective "intention" may be reasonably held to be implied in the amending legislation. When the legislature prescribes a new rule of conduct or qualification for candidates at an election or introduces a fresh disability or disqualification in such matters, the intention may normally well be that the new provision would apply also to pending elections even to the extent of affecting "vested" or "acquired" rights, if any, and, in our view, it is legitimate to infer such intention in the new or the amended Section 22(g) of the Bengal Municipal Act so as to affect all future nominations. Even granting, therefore, that the election in the present case had commenced with the declaration, dated April 27, 1951, that is, long before the amending Act came into force, the amended Section 22(g) having admittedly come into operation prior to the "date of nomination", the eligibility of candidates for the election must be Judged in the light of that provision too. On this ground also we hold that the Petitioner''s challenge to the applicability of the new Section 22(g) to this case must fail.

In the result, therefore, both the contentions, urged in support of this Rule, fail and the Rule is discharged. There will, however, be no order as to costs.

Turning now to the other Rule (Civil Revision Case, No. 136 of 1953) which was obtained by the Plaintiff, it is enough to say that the question as to whether, on the setting aside of the Defendant''s election, a fresh election should be ordered or the remaining candidate, namely, the Plaintiff, should be forthwith declared elected is one of discretion with the Court and that such discretion is to be judicially exercised with reference to the facts and circumstances of the particular case. In the case before us, that discretion appears to have been properly exercised by the learned Subordinate Judge in refusing to declare the Plaintiff elected in the Defendant''s place and in ordering a fresh election to be held. We would not, therefore, interfere with his order even in this respect.

This Rule also must, accordingly, fail and it is also discharged without costs.

Guha Ray, J.

I agree.