MRIGANKYA BISWAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this case the subject-matter of challenge is the election of Commissioner of the Dum Dum Municipality in Ward No. 3. The returned candidate was one Anirudha Roy and the petitioner is one of the voters. The respondent No. 4 Anirudha Roy had appointed one Radhey Shyam De, respondent No. 6 as his election agent. This, however, is disputed by respondent No. 6 as well as the respondent Nor 4 Anirudha Roy.

(2.) The grounds upon which the election to the municipality can be set aside are mentioned in section 38 of the Bengal Municipal Act, 1932. The petitioner states that in view of the rules framed under the Bengal Municipal Act, the respondent No. 4 was not at all eligible to appoint an employee of the municipality as his election agent. In this case it is stated that this election agent Radhey Shyam De was an employee and that is disputed. If that is so, according to the petitioner, under the rules framed under the said Act, then this is bad. The procedure for challenging the election has been laid down in the Bengal Municipal Act, 1932. This Court refrains from exercising its jurisdiction under Art. 226 of the Constitution in such cases not because it has no jurisdiction but because in matters like this, this Court refrains from exercising its jurisdiction because an alternative remedy is provided under the Act and specially where questions of facts are involved. In the instant case it would require investigation whether the election result was materially affected or not Reference may be made to the case reported in A.I.R. 1977 P &H 40 (Bhoop Singh Vs. Bar Council of Punjab & Haryana ) , A.I.R. 1975 S.C. 2140 (Nanhoo Mal Vs. Hira Mal.) and 61 C.W.N. 11 (Promode Lal Mitra Vs. Additional District Magistrate, 24 Parganas.) . Learned advocate for the petitioner submits that a Quo Warranto might be issued, but in this case as a suit has already been filed by the returned candidate and is pending in the Court, the appropriate course, would be to allow the proceedings to continue.

(3.) I may incidentally mention here that though the suitor in the suit already filed, is not the present petitioner learned advocate in that suit is also the learned advocate for the petitioner in this petition. That suit was filed on the same date, though it is not clear whether before or after this application. Strictly speaking there is no illegality, but I can say that it would have been proper to mention this fact to this Court at the time of the issue of rule nisi. It appears that the suit has already been filed on the same date though whether it was prior to this filing of application under Art. 226 of the Constitution or subsequent is not quite clear. A copy of the application for information is filed in Court to-day and is kept on record. Having regard to this fact and circumstances of this case, in my opinion, this application must fail and is accordingly dismissed. The rule is discharged. This however will not prejudice the rights and contentions of the petitioner, if any, in the pending suit or an intended suit. The interim orders are vacated. There will be no order as to costs. It is desirable that the suit pending should be heard as expeditiously as possible. Rule discharged. No cost.