Joy Chandra Shaw vs State of West Bangal and Others

Bose, J.—This is an application under Article 226 of the Constitution for an appropriate Writ directing the opposite parties Nos. 1 to 4 to carry out the duties enjoined on them by the provisions of the Bengal Village Self-Government Act and the Rules made thereunder and to dissolve a Union Board formed as a result of an election held on 28th March, 1933 and to hold a fresh election in accordance with the provisions of the said Act and the Rules. The petitioner is a resident of Basantpur which is within the Sub-Division of Uluberia in the District of Howrah. The petitioner was elected a member of Basantapur Union Board and continued as such till a new Board was formed. The opposite party No. 5 Rohini Kanta Chakravartti, was the President of the former Board of which the petitioner was member.

The opposite parties Nos. 6 to 14 are persons who have been declared elected as a result of a general election held on 28th March 1353. It is the case of the petitioner that before the said general election of the 28th March, 1953 was held, notice had been given previously of holding a general election on 18th March 1953, and in respect of this last mentioned election. 9th February, 1953, was fixed as the last date for filing of objections and claims and 20th February, 1956 was fixed as the last date for filing nomination papers but no copy of the list of persons qualified to vote was published in accordance with law and the petitioner failed to have any chance to see the said voters'' list. Notwithstanding repeated attempts made on that behalf, the voters'' list was not made accessible to the petitioner, and so the petitioner moved this court under Art. 226 of the Constitution on the 19th February, 1953, and a rule was thereupon issued on the opposite parties to show cause why an appropriate writ should not issue directing them to forbear from holding the said general election on 18th March, 1953, and for other reliefs. It is alleged that after the issue of the said Rule which was numbered as Civil Revision No. 440 of 1953, the election programme as originally announced was altered by the Circle Officer as follows:--

(1) 28th February, 1953, was fixed as the last date for filing claims and objections, 7th March 1953, was fixed as the last date for filing nomination papers and 28th March, 1953 was fixed as the date of election.

There is some dispute as to the exact date when this alteration of the election programme took place. The petitioner''s case is that it was done on the 23rd February, 1953, but the case of the opposite party is that this was done on 14th February, 1953. However, according to the petitioner this altered programme is in contravention of the provisions of the Bengal Village Self-Government Act 1919 and the Rules 4, 7, 8, 9 and 10 made there under and consequently the general election held on the 28th March, 1953, was invalid. The grounds attacking the validity of the election are set out in paragraph 11 of the petition.

One Sri Shankar Mukherjee, the Circle Officer, Amta, has affirmed the counter Affidavit on behalf of the respondent. It is stated in this affidavit that the publication of the preliminary voters'' list was made by the Dafadar of the deponent on 5th January, 1953. as provided in the election rule and the publication of the final list of voters was made for four days commencing from 5th March, 1953, by an orderly in the, office of the deponent. It is further stated in this affidavit that before the issue of the said Civil Rule No. 440 of 1953, on 19th February, 1953, and before the Rule was ultimately served on the Circle Officer on 1st March, 1953, several representations were made for granting further time for filing claims and objections under Rule 8 of the election rules and as a result thereof the election programme was altered on the 14th February. 1953, and the same was published on the 23rd February, 1953, and so the revised programme of election came into existence before the issue of the Civil Rule No. 440 of 1953. It is also alleged in this counter affidavit that the petitioner''s name appeared both in the preliminary and final voters'' list but he did not file any nomination papers and so he was not interested in the said general election except as a voter and consequently he has no legal right which he can enforce under Art. 226 of the Constitution. It is further pointed out, that the petitioner had an alternative remedy by way of an appeal u/s 17(b) of the Bengal Village Self-Government Act, 1919 and so the present application under Article 226 is not maintainable.

Mr. Jogneswar Majumdar, the learned Advocate for the opposite parties has raised certain preliminary objections to the maintainability of this application.

The first objection put forward, is that Section 17B of the Bengal Village Self-Government Act provides an efficacious and expedient remedy and as this remedy was not availed of by the petitioner, the present application under Article 226 is not maintainable. Section 17B is as follows:--

"If any dispute arises as to the election of a member of a Union Board the matter shall be referred to the District Magistrate who shall decide the same after giving notice to the parties concerned and after taking such evidence as may be produced. The order of the District Magistrate shall within 30 days from the date thereof, be subject to revision by the Commissioner whose decision shall be final and shall not be questioned in any Court."

It is pointed out by Mr. Majumdar that when this specific remedy has been prescribed by the statute, the petitioner should have pursued or exhausted this remedy before moving this court under Article 226 of the Constitution. It is further submitted that Article 226 of the Constitution is a discretionary and extraordinary remedy and although it is true that an alternative remedy is no bar to the court exercising its powers under Article 226 in appropriate cases, the Court should not normally allow a party to have recourse to the extraordinary remedy under Article 226 when there is a specific remedy available to him under a particular statute. Mr. Majumdar has drawn the attention of the Court to the case of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, where the Supreme Court made the following observation :--

"It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of."

Mr. Majumdar has also placed reliance on a decision of Sinha, J. reported in Narayan Chandra Mukherjee and Another Vs. District Magistrate, Hooghly and Others, where the learned Judge held that where a party aggrieved by an election held under the Bengal Municipal Act fails without any just excuse to pursue the remedy by way of election petition, as provided by Sections 36 to 39B of the Act, the High Court will not exercise its extraordinary jurisdiction under Article 226 of the Constitution.

The attention of the Court has also been drawn to an unreported decision of Sinha J. in Civil Revision Case No. 1395 of 1953 (3) (Probodh Ch. Mukherjee v. District Magistrate, 24-Parganas) in which the learned Judge also laid stress on the undesirability of the Court entertaining disputes with regard to an election which could be properly agitated in proceedings u/s 17B of the Bengal Village Self-Government Act. It may be pointed out however that in this unreported case the petitioner concerned had before moving for a rule under Article 226 lodged an application before the District Magistrate for the decision of such dispute, and this factor weighed with the learned Judge to a great extent in discharging the Rule that was obtained from this court under Article 226, as the learned Judge was of the opinion that the subject matter of the application before him could be effectively dealt with in the application pending before the District Magistrate and accordingly the learned Judge directed the District Magistrate to treat the application made before him by the petitioner as one u/s 17B of the Bengal Village Self-Government Act and to proceed to deal with the matter on that footing. Reference has also been made by Mr. Majumdar, to the case reported in Pulin Behari Dinda and Another Vs. Byomkesh Mitra and Others, where the court refused to exercise its extraordinary Jurisdiction under Article 227 when there was an alternative remedy available to the petitioner.

Mr. Ghosh, the learned Advocate for the petitioner, has on the other hand contended that the remedy provided by Section 17B of the B.V.S.G. Act would not be an efficacious remedy inasmuch as the petitioner could not possibly expect to get an impartial treatment at the hands of the District Magistrate inasmuch as the petitioner had already obtained a Rule from this Court being Civil Rule No. 440 of 1953, wherein he had challenged the right of the District Magistrate to hold the election which was due to be held originally on the 18th March, 1953. Further, the conduct of the officers subordinate to the District Magistrate in altering the election programme and thereby circumventing the injunction order passed by this court in the said Rule No. 440 of 1953. showed that there was very little likelihood of the petitioner getting a fair deal at the hands of the District Magistrate.

Mr. Ghosh has further submitted that section 17B has no application to an election which is complete, but it a scope is limited to deciding disputes which arise during the progress of an election. It may be pointed out however that there is no warrant for the above propositions formulated by Mr. Ghosh. The legislature in its wisdom has thought fit to leave the matter of decision of election disputes to the exclusive jurisdiction of District Magistrates in order to ensure that proceedings for elections are brought to a speedy termination by pursuing the remedy provided u/s 17B of the Act. Therefore to encourage parties to have recourse to the extraordinary remedy provided in Article 226 of the Constitution in regard to election disputes, and to give a go by to Section 17B of the B.V.S.G. Act will not be a proper exercise of the discretion of the Court. Then again a perusal of the Section 17A and Section 17B together make it quite clear that Section 17B is attracted whether the dispute relates to an election which is complete or to one which is in progress. The section is wide in its scope and it imposes no restriction either expressly or by implication. If the petitioner had instead of moving this court under Article 226 had approached the District Magistrate in terms of Section 17B of the Act. the dispute might have been disposed of long ago. At the present moment there is a period of about 4 or 6 months left for the elected members to vacate their offices at the expiry of their tenure of office as provided in Section 11 of the Act. I do not think that this is a proper case where the court should grant the petitioner any relief under Article 226 even assuming that the petitioner was entitled to any such relief.

The next objection raised by Mr. Majumdar is that as the tenure of office of the members ejected at the general election held on the 28th March, 1953, will come to an end some time in or about March, 1957, that is, at the expiration of 4 years in terms of Section 11 of the B.V.S.G. Act the Court should not interfere under Article 226 by issuing writs at such a late stage. Reliance is placed on the decision of the Supreme Court reported in (1954) S.C. Appeal 305 at 312 (Bot) 313 (Guruswamy''s Case). I do not think that there is much substance in this contention of Mr. Majumdar. In the present case the previous Rule No. 440 of 1953, was issued on the 19th February, 1953, to prevent the holding of an election fixed on the 18th March, 1953, pending the disposal of this Rule the election programme was altered and a fresh election was intended to be held on the 28th March, 1953, and in fact such an election was held on the altered date. Thereafter the said Rule No. 440 of 1953, came up for hearing and was discharged on the 6th July, 1953, on the ground that the said Rule had become infructuous by reason of the fact that another election had been held on the 28th March, 1953. The petitioner thereupon moved this Court again under Article 226 and obtained the present Rule on the 16th July, 1953. For no fault of the petitioner this Rule has been pending disposal for over 3 years and when it has come up for hearing now and there is still about 4 months left for the tenure of office to expire, it does not lie in the month of the respondents to urge that the Rule should be thrown out as having become infructuous by reason of the long period that has elapsed since the issue of the present Rule.

The other point raised by Mr. Majumdar is that the proper writ which the petitioner should have asked for against the opposite parties Nos. 6 to 14 is a writ of quo warranto and as that has not been done this application is not maintainable against the said respondents. Reference is made; to Banwarilal, Re, (6) (48 C.W.N. 766). There is no doubt that the appropriate Writ to ask for against the respondents Nos. 6 to 14 would have been the writ of quo warranto but the omission to ask for such a writ against respondents 6 to 14 does not stand in the way of the Court granting relief against the other respondents if the petitioner had been found entitled to any relief.

So far as the question of the validity of the election held on the 28th March, 1953, is concerned, it was argued by Mr. Ghosh that the non-publication of the voters list renders-the election void but as has been pointed out already there is no substance in this point of Mr. Ghose. It is clear from the counter affidavit; that the preliminary voters'' list was published on 5th January, 1953, and the final list of voters was published for four days commencing from 5th March, 1953. The more substantial attack on the validity of election rests on the fact that the date of publication of the altered programme of election was 23rd February, 1953, but the election was fixed on the 28th March; 1953, and as there was thus no gap of 6 weeks intervening between the said two dates there was contravention of Rule 10 of the B.V.S.G. Rules and this rendered the election void. Now if this Rule 10 had mandatory force then there would have been a good deal of substance in this point of Mr. Ghosh, but it appears to me that the Rule is directory in character and since a period of five weeks intervened between the two dates, I think there was substantial compliance with the Rule 10 and the election was not vitiated. It may be noted that the original programme for holding the election on 18th March, 1953, was strictly in accordance with the election Rules. In support of the proposition that the Rule is directory the test laid down for determining the directory or mandatory character of an enactment as laid down in the case reported in (7) Ajit Kumar Sen and Another Vs. State of West Bengal and Others, may be referred to.

Mr. Majumdar also contended that the petitioner has no legal right which he can enforce under Article 226. In view however of my finding that this petition fails on other grounds indicated above, it is not necessary to express any view on this point. In my view this petition must fail and the Rule is accordingly discharged. The petitioner is to pay the costs of this application to the contesting respondents assessed at 3 Gold Mohurs.