ABDUL AZIZ BISWAS Vs. ABINASH CHANDRA ROY

JUDGEMENT

(1.) This is an appeal by the pltf. under Clasue 15 of the Letters Patent & is directed against a judgment of our learned brother R.P. Mookerjee J., in S. A. 504/1950.

(2.) The suit out of which this appeal arises was instituted by the pltf. for a declaration that the election of the deft. as President of the Shekhalipur Union Board at a meeting held as 8-2-1948 was illegal & ultra vires & for a permanent injunction restraining the deft. from taking over charge of the office from the pltf. The facts of the case which are undisputed, are that the pltf. was an elected member of the Shekhalipur Union Board & was duly elected President of the said Board prior to the partition of Bengal under the Village Self-Government Act (Bengal Act V [5] of 1919) & the Rules framed thereunder. After the partition of Bengal the West Bengal Legislature passed an Act, viz., the West Bengal Act X [10] of 1947 by which the oppointed or nominated members of the Board were to vacate their offices on the commencement of the Act & the elected members were deemed to constitute the Board. The Board thus reconstituted was required to elect their President & Vice-President from among the elected members & for this purpose the Act of 1947 provides that the Dist. Mag. shall order the Circle Officer or any other person (not being one of the members) directing him to convene a meeting for the purpose of electing a President. The Act further provides that the old President would continue in office till a new President was elected. The pltf. alleges that the Circle Officer convened the meeting under the order of the Dist. Mag. as required by West Bengal Act X [10] of 1947 & himself presided over the meeting at which the deft. was elected President. The pltf. challenges this election as illegal on the ground that the meeting at which the election was held was not legal inasmuch as it was presided over by the Circle Officer who had no authority under the law to preside over the said meeting. The pltf.'s case is that the vacancies caused by the retirement of appointed members under West Bengal Act X [10] of 1947 are casual vacancies & therefore the meeting convened on 8-2-1948 was governed by Rule 37 of the Statutory Rules framed under the Village Self. Government Act Bengal Act V [6] of 1919) under which the Circle Officer had no authority to preside.

(3.) The deft. contested the suit on the ground that the vacancies resulting from the retirement of appointed members were not casual vacancies & as such Rule 37 had no application & that in any event the pltf. having allowed the deft. to be elected President without any objection had no cause of action.