The conditions precedent and procedure for ordering a scrutiny and computation of votes under Section 39 of the Bengal Municipal Act, 1932, and the effect of irregularities in the election process on the validity of the election.

1. THE facts in this case are briefly as follows: the petitioner and the respondents Nos. 2. 4, 5, 6, 7 and 8 stood for election at the general election of Commissioners of the Darjeeling Municipality, held on the 6th July, 1957. In that election, by the results declared, the [petitioner was one of the parties duly elected. On or about the 15th July, 1957 the respondent No. 2, Lakpa Tshering, who was one of the defeated candidates, filed an application purporting to be under Sections 36, 38 and 39 of the Bengal Municipal Act, before the District Judge of Darjeeling. On or about the 22nd July, 1957 the District Judge, Darjeeling, transferred the case to the Subordinate Judge, and the application was numbered as Election Suit No. 54 of 1957 O. C. Certain sealed ballot boxes and some sealed covers were produced before the learned Subordinate Judge on the 9th May, 1958 and they were opened. It is said that these were opened in the presently of the lawyers of the parties and the contents noted. This was done under the order of the learned Subordinate Judge, who later on has admitted that this was wholly irregular. The petitioner charges that the boxes were opened at 11-30 A. M. in the morning and they were lying about and the ballot papers were put in a sealed cover at about 5 P. M. The suggestion is, of course, that in the intervening period there could be tampering. So far as the learned Subordinate Judge is concerned, he says in his order No. 34, dated the 21st July, 1958, that he was not sure about the hours, but the ballot papers were counted and tied up in a bundle and kept under special care till they were sealed up at the end of the day's proceedings. The learned Subordinate Judge proceeds to say as follows:-

"on 3-7-58 the Polling Officer's report, which has to be shown to the Polling Officer, had to be taken out from the sealed cover. But the cover was resealed without delay. The defendant No. 3 states that the ballot papers had been very much exposed in breach of rules. I do not think there has been too much of exposure. Any way, no real prejudice has been caused to the defendant No. 3."

2. I shall presently deal with this aspect of the case again. I now proceed with the enumeration of facts. On the 10th May, 1958 the learned Subordinate Judge directed that a scrutiny and computation of votes should be made under Section 39 of the said Act. An objection was taken before the learned Subordinate Judge that this order and the opening of the boxes were erroneously made, because before an order for scrutiny and computation could be made, a prima facie case should be shown for doing so. On the 17th May, 1958 the learned Subordinate Judge passed an order wherein he admitted that his previous order of scrutiny and computation was premature and he permitted both parties to argue the point. The next important date is the 9th July, 1958. In a somewhat lengthy judgment, the learned Subordinate Judge has enumerated the facts and the issues that have been raised, and proceeded to consider as to whether, in the facts and circumstances of the case, there should be a counting or computation of the votes. After having dealt with the law on the subject, the learned Subordinate Judge confessed that a satisfactory authority on the point was wanting, but he came to the conclusion that although a scrutiny and computation cannot be claimed by a candidate as a matter of course, still on the facts of this case, he came to the conclusion that a computation and scrutiny should be ordered. He has mentioned several grounds for coming to the conclusion. One of the grounds is that the respondents Nos. 2 and 4 bore the same name "tshering" and while the names were being called out, the Polling Officer did, in fact, find himself confused. Then the learned Subordinate Judge enumerated the instance of an old voter who went into the voting apartment but instead of putting his paper into the ballot box, he put it in some other box, with the result tha