D S KAZI Vs. K K CHAKRAVARTY

JUDGEMENT

(1.) THE facts in this case are briefly as follows: the petitioner and the respondents Nos. 2. 4, 5, 6, 7 and 8 stood for election at the general election of Commissioners of the Darjeeling Municipality, held on the 6th July, 1957. In that election, by the results declared, the [petitioner was one of the parties duly elected. On or about the 15th July, 1957 the respondent No. 2, Lakpa Tshering, who was one of the defeated candidates, filed an application purporting to be under Sections 36, 38 and 39 of the Bengal Municipal Act, before the District Judge of Darjeeling. On or about the 22nd July, 1957 the District Judge, Darjeeling, transferred the case to the Subordinate Judge, and the application was numbered as Election Suit No. 54 of 1957 O. C. Certain sealed ballot boxes and some sealed covers were produced before the learned Subordinate Judge on the 9th May, 1958 and they were opened. It is said that these were opened in the presently of the lawyers of the parties and the contents noted. This was done under the order of the learned Subordinate Judge, who later on has admitted that this was wholly irregular. The petitioner charges that the boxes were opened at 11-30 A. M. in the morning and they were lying about and the ballot papers were put in a sealed cover at about 5 P. M. The suggestion is, of course, that in the intervening period there could be tampering. So far as the learned Subordinate Judge is concerned, he says in his order No. 34, dated the 21st July, 1958, that he was not sure about the hours, but the ballot papers were counted and tied up in a bundle and kept under special care till they were sealed up at the end of the day's proceedings. The learned Subordinate Judge proceeds to say as follows:-

(2.) I shall presently deal with this aspect of the case again. I now proceed with the enumeration of facts. On the 10th May, 1958 the learned Subordinate Judge directed that a scrutiny and computation of votes should be made under Section 39 of the said Act. An objection was taken before the learned Subordinate Judge that this order and the opening of the boxes were erroneously made, because before an order for scrutiny and computation could be made, a prima facie case should be shown for doing so. On the 17th May, 1958 the learned Subordinate Judge passed an order wherein he admitted that his previous order of scrutiny and computation was premature and he permitted both parties to argue the point. The next important date is the 9th July, 1958. In a somewhat lengthy judgment, the learned Subordinate Judge has enumerated the facts and the issues that have been raised, and proceeded to consider as to whether, in the facts and circumstances of the case, there should be a counting or computation of the votes. After having dealt with the law on the subject, the learned Subordinate Judge confessed that a satisfactory authority on the point was wanting, but he came to the conclusion that although a scrutiny and computation cannot be claimed by a candidate as a matter of course, still on the facts of this case, he came to the conclusion that a computation and scrutiny should be ordered. He has mentioned several grounds for coming to the conclusion. One of the grounds is that the respondents Nos. 2 and 4 bore the same name "tshering" and while the names were being called out, the Polling Officer did, in fact, find himself confused. Then the learned Subordinate Judge enumerated the instance of an old voter who went into the voting apartment but instead of putting his paper into the ballot box, he put it in some other box, with the result that the ballot paper was lost. The learned Subordinate Judge also mentioned the important fact that the applicant before him had only lost by one vote and, therefore, it was eminently a case where scrutiny and recounting should be done. Ultimately he ordered a scrutiny and computation in accordance with the provisions of Section 39 of the Bengal Municipal Act. I might also mention that evidence was taken of certain witnesses including the Polling Officer. After this, the scrutiny commenced on the 12th July, 1958, and the petitioner in this case withdrew from the scrutiny and it is a disputed point whether she was present at Darjeeling or not when the actual scrutiny took place. Upon scrutiny, it appears that the result declared was that so far as the petitioner and the second respondent are concerned, they came to have the same number of votes, whereas some of the others got an additional vote each. Since the petitioner and the respondent No. 2 got an equal number of votes, lots were drawn in accordance with the provisions of Section 39, and the respondent No. 2 became successful. The petitioner has now come up to this Court and in this application she challenges the procedure adopted by the learned Subordinate Judge and the orders made by him.

(3.) THE first thing that has to be mentioned in this case is the very unsatisfactory nature of the proceedings. As the learned Subordinate Judge himself admits, the ballot boxes and certain sealed covers were opened prematurely without the determination of the question as to what order should be made on the application made by the respondent No. 2. Not only were they opened, but it seems that they were kept open during the whole day and even the learned Subordinate Judge is not sure about the hours, and says that the ballot papers had not been "very much exposed in breach of rules". I fail to understand what this expression means. This, however, is not all. Very peculiar things have happened in the balloting. To start with, we find according to the report of the Polling Officer that 423 males and 216 female voters voted and 27 ballot papers, consisting of 21 male and 6 females were rejected. We now find that when the boxes were opened, only 26 rejected papers were found. Upon this, the Polling Officer proceeded to explain that one of the rejected papers consisted of a ballot paper which an old voter put into a different receptacle than the ballot box, with the result that it was lost and could not be retrieved. According to him all the parties agreed that it would be considered as a rejected polling paper. But even so, the figures do not tally. As I have already said, 216 female voters were reported to have voted. It is found now that only 215 papers were there. This aspect of it has not been satisfactorily investigated at all. According to the learned Subordinate Judge, the explanation is as follows:-