BHABATARAN ROY Vs. BHAJAHARI SAMANTA

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution is directed against an order passed by the Sub-Divisional Magistrate of Ghatal on the 29th of October, 1958 reversing the decision of the Circle Officer, Ghatal as Union Board Election Officer. In order to appreciate the contentions raised by the parties it is necessary to state certain facts. The petitioner before me Bhabataran Roy is a duly nominated candidate in the impending election of the members of a Union Board in Police Station Ghatal. 29th of September, 1958 was the last date for filing nomination papers in connection with that election. On the 13th of October, 1958 scrutiny was held by the Election Officer of all the nomination papers and on the same date the nomination of opposite party Bhajahari Samanta was rejected by him on the ground that he was a Government servant on that day being a Tahsildar. Against this decision of the Election Officer an appeal under Rule 11a of the Rules framed under the Bengal Village Self-Government Act of 1919 was preferred before the Sub-Divisional Magistrate on the 14th of October, 1958. On the same day the Appellate Officer asked the Sub-Divisional Land Reforms Officer to report if Bhajahari Samanta had submitted his resignation as a tahsildar and it had been accepted and if so, with effect from what date. On receipt of the report the Sub-Divisional Magistrate passed the following order on the 29th October, 1958:

(2.) IT is against this order of the Sub-Divisional Magistrate that the present petitioner Bhabataran has filed the application under Article 227 of the Constitution.

(3.) VARIOUS points have been canvassed before me by the respective parties. It has been urged on behalf of the petitioner that the Sub-Divisional Magistrate's order dated 29-10. 58 is vitiated by a fundamental error. It has been contended that the crucial date in this connection was not 13-10-58, namely, the date of scrutiny but 29-9-58 which was the last day for filing nomination papers and on which date nomination papers had been filed by both the parties. It has been argued that the Sub-Divisional Magistrate was wrong in holding that the nomination paper filed by the opposite party was valid because his resignation had been accepted with effect from the 6th October, 1958, that is, prior to the date of scrutiny. That the material date in this connection is the date of nomination, and not the date of scrutiny, will be clear from the Bench decision of this Court in the case of Sk. Ahmed Hossain v. Aswini Kumar Paul (1) 57 C. W. N. 421. As the learned Advocate for the petitioner is right on this point, it is not necessary to go into the question whether the resignation of a Government servant can be accepted with a retrospective effect.