The powers of the Chairman and the Magistrate to reject nomination papers on the ground of disqualification under Section 22 of the Bengal Municipal Act, 1932.

( 1 ) THIS is an application under Article 227 of the Constitution of India and Section 115, Civil P. C. by Sheikh Ahmed Hossain who was a candidate for election to the Garden Reach Municipality at its fourth general election. In order to appreciate the various points urged before us, it is necessary to set forth in some detail the relevant facts.

( 2 ) THREE seats were allotted for Ward No. 3 of the Garden Reach Municipality and the present petitioner was one of the candidates. His name was finally published in the final Electoral Roll of Male Voters of the same Ward. The date of final publication of the Electoral Roll was 16-12-1951. 9-2-1952 was fixed by the Chairman of the Municipality as the last date for submission of nomination papers and the Chairman held scrutiny qf the nomination papers on 18-2-1952, and found the nomination papers of the present petitioner along with those of eleven other candidates to be valid as complying with all the requirements of Rule 17 (2), Bengal Municipal Election Rules 1932 (hereinafter described as Rules of 1932),

( 3 ) OPPOSITE Party No. 1 Aswini Kumar Paul who was another candidate preferred an appeal before the Magistrate at Alipore under Rule 20 of the said Rules against the present petitioner and others contending 'inter alia' that the petitioner was not eligible for election as a commissioner under the provisions of law as laid down in Section 22, Bengal Municipal Act, 1932, as amended by Section 5, West Bengal Act 28 of, 1951. (The amended Act will be described hereafter as the Act of 1932 ).

( 4 ) BY an order, dated 29-2-1952, the Magistrate held that the present petitioner along with eight other candidates were disqualified under Section 22 (1) (g) of the Act of 1932 for being elected as commissioners and directed under Rule 20 the omission of the petitioner's name as well as the names of eight other candidates from the list of registered candidates for Ward No. 3. As a result of the Magistrate's order, only three nomination papers, namely, those of opposite parties Nos. 1, 2 and 3, were found to be valid for the three seats of Ward No. 3 and in the circumstances those three opposite parties were declared as duly elected as commissioners under Rule 22 of the 1932 Rules.

( 5 ) THEREUPON the present petitioner filed an election petition under Section 36 of the Act of 1932 before the District Judge of Alipore praying for setting aside the entire election contending 'inter alia' that the petitioner did not suffer from any disqualification; that the rejection of his nomination paper was illegal and improper; that the result of the election owing to such improper rejection materially affected the result of election of Ward No, 3; that opposite party No. 2 was a defaulter in payment of rates and taxes for more than three months and as such disqualified under Section 22 (g) and that the election of the entire Ward No. 3 should be set aside. The case was transferred to Mr. A. N. Lahiri, Subordinate Judge, Alipore and ultimately it was dismissed by him. The findings of the learned Subordinate Judge may be summarised as follows:"under Rule 17 of the 1932 Rules the Chairman has the power to go into the question of the eligibility of a candidate under Section 22 of the 1932 Act and the District Magistrate's powers under Rule 20 being co-extensive with those of the Chairman, the Magistrate also has similar powers as the Chairman to decide the question of eligibility under Section 22. The material date in this connection is the last date (9-2-1952) for the submission of nomination, papers and not the date of scrutiny (18-2-52), as contended for on behalf of the plaintiff petitioner. The Magistrate was right in rejecting the nomination of the plaintiff as he was in arrears on the nomination date. Opposite Party No. 2 Md. Taher Ali Molla was not disqualified under Section 22 (1) (g) though he had paid the taxes only two days before the date of scrutiny, as he was not personally in a