GOUR CHANDRA DAS Vs. JOYDEB SADHUKHAN

JUDGEMENT

(1.) These are two Rules directed against a decision under Section 38 of the Bengal Municipal Act. The proceeding (other suit No. 46 of 1952 of the Court of the District Judge, 24-Pargands, re-numbered on transfer as other suit No. 22 of 1952 of the Court of the third Additional Subordinate Judge, Alipore) commenced upon an application, filed on April 1, 1952, under Section 36 of the Act, challenging the validity of the last general election in ward No. 8 of the Barrackpore municipality, held on March 23, 1952. The election has been set aside by the learned Additional Subordinate Judge but he has also refused the prayer of the applicant (Plaintiff) before him (who had lost the election at the polls) to declare him elected as the commissioner from the said ward. The learned Judge has ordered a fresh election to be held in accordance with law.

(2.) With this decision of the learned Additional Subordinate Judge both parties have felt dissatisfied and they have obtained the present two Rules. In Civil Revision Case No. 188 of 1953, the Defendant whose election has been set aside by the learned Judge is the Petitioner and his grievance is that the learned Judge has erred in setting aside his election. In the other Rule (Civil Revision Case, No. 136 of 1953), the Plaintiff is the Petitioner and he has moved against the learned Judge's refusal to declare him elected in place of the Defendant without a fresh election.

(3.) It will be convenient and proper, too, to take up first the Defendant's Rule, namely, Civil Revision Case, No. 188 of 1953. In his application before the learned trial Judge the Plaintiff made various allegations against the validity of the election but the only ground which found favour with the learned Judge was that the Defendant was disqualified under the new Section 22(g) of the Bengal Municipal Act to stand as a candidate for the election in view of his being for more than three months "in "arrears in payment of" rates or taxes in respect of holding No. 6A of ward No. 4 of the municipality and that, accordingly, his nomination paper should have been rejected. As the learned Judge was of opinion that this improper acceptance of the Defendant's nomination paper had vitiated the election he set aside the same and ordered a fresh election.