GOPAL SEN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application challenging the election of the Dum Dum Municipality in Ward No. 9. According to the petitioner, he is a voter of Ward No. 9 and the election was held on the 31st May, 1981. This application for issue of rule nisi under Article 226 of the Constitution was moved on 10th July, 1981, upon notice to the respondents. The respondent No. 4 who was a candidate at the said election was alleged to have appointed one Chandidas Saha an employee of the said Municipality as his pulling agent in violation of the mandate of Rule 46 of the West Bengal Municipal Election Rules, 1975 which provides that no person having directly or indirectly by himself or his partner any share or interest in any contract or employment with, by or on behalf of the Commissioners, or holding any office of profit under the Commissioners, shall directly or indirectly, engage in canvassing for votes or otherwise assist in the election of any candidate otherwise than by giving his own vote. According to the petitioner the appointment of Chandidas Saha as the polling agent comes within the mischief of this Rule because he was an employee of the Municipality.

(2.) It has further been said that the respondent No. 4 had used his official capacity and canvassed for himself and his other friends contesting the election in the said Dum Dum Municipality in different wards by issuing pamphlets etc. It appears that the election can be set aside under Section 38 of the Bengal Municipal Act, 1932 where a candidate has committed any corrupt practice or by reason of bribery or undue influence as defined in the Indian Election Offences and Enquiries Act. That is not the case here. The election can also be set aside or challenged if the election result is materially affected by non-compliance with the Act or any Rule made thereunder. In order to succeed on this ground, a person must allege and prove that the result of the election has been materially affected by the non-compliance complained. The grounds in this case along with other averments made in paragraph 7 of the petition, are, matters which can best be adjudicated in a proceeding under Section38 of the Bengal Municipal Act, 1932.

(3.) It is true that the existence of an alternative remedy does not as such debar the power of a Court exercising jurisdiction under Article 226 of the Constitution to intervene if a case of flagrant violation of a provision of law is brought to the notice of the Court. Where the question of the violation of law is mixed up for determination with disputed questions of facts and where a forum is provided for adjudication of such disputed questions of facts, the Court very often in exercise of its own discretion refrains from intervening under Article 226 of the Constitution. There is a well settled and salutary principle to be followed in such cases. Reliance may be placed in this connection on the observations in the case of Nanhoo Mal v. Hira Mal, and the observations of this Court in the case of Joy Chandra v. State of West Bengal (1957) 61 Cal WN 341. On behalf of the petitioner reliance was placed on the observations of the Supreme Court in the case of State of U. P. v. Indian Hume Pipe Co., but in view of the nature of the allegations in this case, in my opinion, the questions involved would be better adjudicated in the appropriate forum provided under the Bengal Municipal Act, 1932. In that view of the matter I am not inclined to interfere with this case in exercise of the jurisdiction under Article 22G of the Constitution. I, therefore, decline to issue any rule nisi, especially in view of the fact that the election has already been held and the result has already been announced on 4th June, 1981 as stated by the petitioner. In the premises, this application is rejected. There will be no order as to costs.