Hakim Soban Ali vs Kanai Lal Sarma and Others

Bachawat, J.—This is a petition under Article 227 of the Constitution arising out of an election petition. The dispute relates to the Municipal election of Ward Not 3 of Garulia Municipality. Ward No. 3 is a plural general constituency consisting of two seats. There were three candidates for the election. All the three candidates are opposite parties to the election petition. Badri Narayan Bidyarthi, opposite party No. 2 to the election petition secured 147 votes, Hakim Soban Ali, opposite party No. 1 secured 123 votes, Md. Salim, opposite party No. 3 secured 109 votes. The election of Hakim Soban Ali was challenged in the election petition, The; learned Judge has set aside his election. In my opinion Hakim Soban Ali was disqualified u|s 22(1) (g) of the Bengal Municipal Act and as such was not eligible for election and, therefore, his election was rightly set aside.

Hakim Soban Ali is the owner of holding No. 160 in Ward No. 3 of Garulia Municipality. Municipal rates for the first quarter of 1954-55 of this holding fell due on the 4th April, 1954. On the 8th June, 1954, Hakim Soban Ali purchased this holding. On his application on the 25th June, 1954 his name was mutated on the 27th June, 1954, and he was informed of the mutation on the 13th July, 1954. The Municipal rates for the holding No. 160 for the 2nd quarter, 1954-55 fell due on the 1st July, 1954. Nomination papers were submitted on or about the 26th October, 1954 which was the last date for filing nomination. The rates were paid by Hakim Soban Ali on the 6th of November, 1954. The election was held on the 5th of December, 1954 and on the same date the result of the election was declared and Badri Narayan and Hakim Soban Ali were declared to have been duly elected.

By section 153 of the Bengal Municipal Act, 1932 the rates are payable in quarterly instalments and every such instalment is deemed to be due on the first day of the quarter in respect of which it is payable. The rates for the first and second quarters of 1954-1955, therefore, fell due respectively on the 1st April. 1954 and the 1st July, 1954. U|s. 166 the purchaser of a holding is liable for all rates due in respect of the holding at the time of the purchase. Hakim Soban Ali, therefore, became liable for the rates for the first quarter, 1954-55 for the first time on the 8th of June, 1954. Even ignoring the liability of Hakim Soban Ali in respect of the rates for the first quarter, 1954-55 there can be no possible doubt that he was liable for payment of the rates for the second quarter, 1954-55 as from the 1st July, 1954. By section 153 the rates for the 2nd quarter 1954-55 fell due on the 1st July, 1954 and remained unpaid until the 6th of November, 1954. On the 26th of October, 1954 these rates were due and had not been paid for more than 3 months.

I am satisfied that no bill nor notice of demand was presented to Hakim Soban Ali as contemplated by section 155 of the Bengal Municipal Act. In my opinion notwithstanding the non-presentation of any bill or notice of demand the rates for the 2nd quarter 1954-55 were due from Hakim Soban Ali on and from the 1st July, 1954. The effect of the non-presentation of the bill and the notice of demand was that the Municipality could not take recourse to the special procedure of levy by distress provided by sections 156 to 164. But section 155 itself shows that the rate is due before the bill and the notice of demand are presented. The rate due is a charge on the holding u/s 167 of the Bengal Municipal Act and service of the bill and the notice of demand is not condition precedent to the right of the Municipality to recover the amount due for the rate by suit u/s 162. See in this connection Mathura-prasad vs. The Corporation of Calcutta (1) (48 C.W.N. 336) where it was held that inspite of section 189 of the Calcutta Municipal Act 1923 requiring service of the bill, such service was not condition precedent to the right of recovery of the rates by suit u/s 204 of the Calcutta Municipal Act 1923 and that the person who was under an obligation to pay and had not paid the rate due was a defaulter within the meaning of that section though no bill had been presented to him.

The word "arrears" is not a term of art. The rates being due and not being paid for three months. Hakim Soban Ali must lie said to have been on the 26th October, 1954 "in arrears for more than 3 months in payments of any rate or tax" within the meaning of section 22(1) (g) of the Bengal Municipal Act; (see Burrows Words & Phrases and Wharton''s Law Lexicon under title "arrears",''.

Before the learned Judge reliance was placed upon an alleged memorandum No. 3279|M 3P-18|55(13) of the Local Self-Government Department of West Bengal Government which is said to have provided inter alia that "the disability imposed by the aforesaid section, namely. 22(1) (g) would arise only if any rate or taxes remained unpaid for more than three months after the expiry of the period of 15 days from the date of service of demand notice u|s. 155 of the Bengal Municipal Act, 1932".

Mr. Dutt appearing on behalf of the petitioner frankly confessed that he is unable to trace the memorandum. He further admitted that he is unable to contend that the memorandum, if any, was sanctioned by the rule-making power of the State Government conferred by section 505 of the Bengal Municipal Act, 1932.

The relevant date for deciding the question of eligibility for election u|s. 22(1) of the Bengal Municipal Act is the date of the nomination and not the date of the actual polling. The nomination is for this purpose an essential part of the election : [see Harford vs. Linskey (2) (1899) 1, Q.B., 852]. Parker''s Election Agent and Returning Officer, 5th edition, page 52; Satyendra Kumar Das vs. The Chairman of the Municipal Commissioners of Dacca (8) (34 C.W.N., 972); Ahmed Hossain Vs. Aswini Kumar and Others, . Hakim Soban Ali being disqualified on the date of nomination was not eligible for election.

The learned Judge not only set aside the election of Hakim Soban Ali but also declared Md. Salim to have been duly elected. His order in this behalf is as follows :

the opposite parties Nos. 2 & 3 who were the only remaining candidates from this ward No. 3 of the Municipality of Garulia and whose nomination papers were) accepted as valid, there being two seats only for this ward No. 3 and declared to be duly ejected Commissioners of the Municipality from this Ward No. 3.

In my opinion, the learned Subordinate Judge had no jurisdiction to declare opposite party No. 3 Md. Salim to have been duly elected.

In an election petition filed u|s. 36 of the Bengal Municipal Act, 1932, the reliefs which the court can give are specified in sections 38. 39 and 39A of the Bengal Municipal Act. The impugned order with regard to Md. Salim is not justified by section 38, which empowers the Judge to set aside the election. Section 39A empowers the Judge to confirm an election. Hakim Soban Ali was not declared to. have been elected and there is. therefore no question of confirming his election u|s. 39A. In my opinion, section 39 also does not empower the learned Subordinate Judge to declare Md. Salim as duly elected. Section 39 provides for scrutiny and computation of votes where there is a dispute between two or more candidates as to who has secured the largest number of votes. Section 39 does not empower the Judge to declare a defeated candidate to have been duly elected on the ground that the rival candidate who has won is disqualified and is not eligible for election. In my opinion, therefore, that part of the order which declares Md. Salim to have been elected is without jurisdiction and must be set aside.

Mr. Dutt appearing on behalf of Hakim Soban Ali also contended that as Ward No. 3 was a plural constituency the entire election of the Ward including the election of Badrinarayan Bidyarthi should be set aside. I do not accept this contention. Mr. Dutt relied upon Md. Anisul Islam v. Kali Kumar Mukherjee (5) (59 C.W.N. 127) and upon the second paragraph of the head note which reads "accordingly in a plural number constituency if the challenge is successfully made to one of the candidates, the result would be that the entire election of the constituency would have to be held afresh". In my opinion this part of the head note in (5) 59 C.W.N. 127 is too widely expressed.

In the election petition in the instant case the prayer was "for setting aside the election of opposite party No. 1 and for declaring the opposite parties 2 and 3 as duly elected, they being the only two candidates and two seats in Ward No. 3 of the Garulia Municipality". The election of Badrinarayan Bidyarthi is not challenged in the election petition nor is there any prayer for setting aside his election.

u/s 36 of the Bengal Municipal Act a petition bringing in question the validity of any election of a commissioner must he made within ten days after the date of the declaration of the result of the election. An election cannot be challenged after the time prescribed and an election petition presented thereafter is barred by limitation. No election petition having been filed challenging the validity of the election of Badrinarayan Bidyarthi. his election can no longer be challenged.

The question in issue in Md. Anisul Islam v. Kali Kumar Mukherjee (5) (59 C.W.N. 127) was whether an election may be set aside not merely upon the grounds of corrupt practice or other misconduct on the part of the candidates concerned or his agent but also on the ground of want of fairness of election proceedings for which persons other than the candidate may be responsible. A Division Bench in that case held that the election of a candidate may he set aside although neither he nor his agent is guilty of any corrupt practice or misconduct. On this point 59 C.W.N, 127 must be contrasted with Ahmed Hossain Vs. Aswini Kumar and Others, . In giving the reasons for the decision of the Division Bench in 59 C.W.N. 127 Mr. Justice Debabrata Mookerjee observed that the words such candidate "in section 38 of the Bengal Municipal Act, 1932" can have reference only to the Commissioner whose election is brought in question. What is disputed in an application u/s 36 of the Act is the validity of the election of a Commissioner and section 38 merely gives power to the Judge to set aside the election on proof of existence of one or the other four grounds enumerated in Clauses (a) to (d) of that section. He further observed "In the view, therefore, I take it must be held that the words ''such candidate'' refer to a candidate whose election is brought in question u/s 36 of the Act".

In this case the validity of the election of Badrinarayan Bidyarthi has not been brought in question u/s 36 of the Act. Only the election of Hakim Soban Ali having been challenged the election of Badrinarayan Bidyarthi cannot be set aside u/s 38 of the Bengal Municipal Act.

The present case with regard to Badrinarayan Bidyarthi is clearly distinguishable from the decision in Md. Anisul Islam v. Kali Kumar Mukherjee (5) (59 C.W.N. 127) which was decided on the footing that the election of the candidate concerned was brought in question u/s 36 of the Bengal Municipal Act.

I, therefore, pass the following order :--I set aside the order of the learned Subordinate Judge dated the 24th August, 1955, in so. far as that order declares that Md. Salim is duly elected a Commissioner of the Municipality. The rest of the order of the learned Subordinate Judge is affirmed.

There will be no order as to costs in this Rule. The Rule is disposed of accordingly.