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1943 Supreme(Cal) 50
CALCUTTA HIGH COURT
B.K. Mukherjea, J., Akram, J.
Prosad Das Mullick, person-in-charge of Hooghly Chinsurah Municipality - Appellant
Versus
Kartic Chandra Mullick & Ors. - Respondent
Decided On : 16-12-1943
The main legal point established in the judgment is that the election court's authority under the Bengal Municipal Act is limited to specific grounds for setting aside an election, and lack of authority to hold the election during the period of supersession did not fall within these grounds.
Headnote:
Election - Bengal Municipal Act - 36, 21(1), 56(1), 24(3), Rule 51F(6), Rule 51F(8), Defence of India Rules - The court discussed the validity of the election of commissioners of the Hooghly Chinsurah Municipality under the Bengal Municipal Act and the Defence of India Rules. The court held that the election held during the period of supersession of the municipality was void ab initio as it lacked authority and was not in accordance with the law.
Fact of the Case:
The case involved a challenge to the election of commissioners of the Hooghly Chinsurah Municipality under the Bengal Municipal Act. The municipality had been superseded under the Defence of India Rules, and the validity of the election held during this period was in question.
Finding of the Court:
The court found that the election held during the period of supersession of the municipality was void ab initio as it lacked authority and was not in accordance with the law. The court held that the election was not valid and should be set aside.
Issues: The issues included the maintainability of the application, the authority to conduct the election during the period of supersession, the legality of the election proceedings, the preparation and publication of the electoral rolls, and allegations of corrupt practices.
Ratio Decidendi: The court held that the election court's authority under the Bengal Municipal Act is limited to specific grounds for setting aside an election, and the lack of authority to hold the election during the period of supersession did not fall within these grounds. Therefore, the election court had no authority to set aside the election on this ground.
Final Decision: The court made the rule absolute, set aside the judgment of the District Judge, and directed the District Judge to record findings on the other issues and dispose of the case in accordance with law.
JUDGMENT
B.K. Mukherjea, J. - This rule is directed against a judgment of Rule 8. Simpson Esq., District Judge of Hooghly dated 2nd February 1943, passed on an election petition presented by opposite party 1 u/s 36, Bengal Municipal Act, to set aside the election of opposite parties 2 and 3 as commissioners of the Hooghly Chinsurah Municipality. The material facts are not in controversy and may be shortly stated as follows: The term of the Hooghly Chinsurah Municipality which consists of 18 commissioners including the Chairman and the Vice-chairman was normally to have expired on 14th October 1942, u/s 56(1), Bengal Municipal Act. The term was however extended under el. (5) of the section by a notification dated 6th November 1941. On 21st March 1942, the Additional District Magistrate of Hooghly in exercise of the powers conferred upon him u/s 24(3), Bengal Municipal Act, read with Rule 2(1) (a) (i) of the election rules framed under the Act fixed Sunday 8th November 1942 as the date for holding general election in all the wards of the Hooghly Chinsurah Municipality. By a subsequent order made on 11th May 1942 the date of election was changed from 8th November to 6th December 1942. The Commissioners thereupon appointed a committee u/s 21(1), Bengal Municipal Act, for the purpose of having the electoral roll prepared. On 28rd August 1942, ten out of the eighteen commissioners of the Municipality including the Chairman and the Vice Chairman resigned. On 31st August 1942, the District Magistrate of Hooghly made an order under Rule 51F (6), Defence of India Bules, superseding the municipality. The order stood as follows:
Whereas it is necessary and expedient to supersede the Hooghly Chinsurah Municipality for ensuring the due maintenance of the vital services of the said Municipality in the event of hostile attack, I the District Magistrate of Hooghly, in exercise of the powers conferred upon me by the Government of Bengal Notification No. 766 P. dated 24th January 1942, do hereby and from this date supersede the Hooghly Chinsurah Municipality under the provision of Rule 51F (6), Defence of India Rules.
During this period of supersession, all the powers and duties which may, by or under any law for the time being in force, be exercised or performed by or on behalf of the Hooghly Chinsurah Municipality shall, be exercised and performed by Babu Prosad Das Mallick, B. L. of Hooghly at present a Commissioner of the Hooghly Chinsurah Municipality.
All property vested in the Hooghly Chinsurah. Municipality shall during the period of supersession vest in the Government of Bengal.
All the members of the Hooghly Chinsurah Municipality forming the present body of Commissioners thereof, shall as from to-day, vacate their offices as such members.
The order shall take effect from 31st August 1942 and shall remain in force for the period during which the Defence of India Bules continue in force,
2. By a late order of the District Magistrate dated 80th September 1942, the period of supersession was limited till 81st March 1943. In spite of the supersession order, Mr. Prosad Das Mullick in whom all the powers and duties of the municipality vested, went on taking the necessary steps for holding the general election. The final electoral roll of the municipality was published on 3rd September 1942, and on 6th December 1942, the election was held. There were three candidates for election as commissioners in ward. No, (3) where there were two seats, and these were (1) Biswa Nath Bose, (2) Raghu Nath Mallick and (8) Narendra Nath Sen. As the result of polling, the last two were returned elected, and Biswa Nath Bose was defeated. On 16th December 1942, opposite party 1 Kartic Chandra Mallik, in his capacity as a voter in ward No. 3 filed the present petition u/s 36, Bengal Municipal Act, before the District Judge of Hooghly, challenging the validity of the election of Raghu Nath Mallik and Narendra Nath Sen. Both these successful candidates were impleaded as p
