RATHIS CHANDRA MUNSHI Vs. AMULYA CHARAN GHATAK

JUDGEMENT

(1.) This appeal arises out of a suit relating to a Municipal election at Ranaghat within the district of Nadia. The facts are that at the Municipal election held on 17 December 1927 defendants 1 and 2, who are the appellants before us, were declared elected. "The plaintiff who was a rival candidate along with another person named Abani Kanto Bose was defeated. Under B. 15 (1) of the rules framed by the Government of Bengal in 1927 in exercise of the powers conferred on it by Secs.15 and 69, Bengal Municipal Act of 1884, every person who is a candidate for election shall send his name to the Chairman in writing not less than 28 days before the date fixed for election. In the present case the date fixed for the election was 17 December 1927. The nomination paper submitted by defendant 1 was at 11 a. m. on 19 November 1927. The plaintiff applied to the District Magistrate under Rule 16 to omit the name of defendant 1 from the list of candidates inasmuch as the nomination paper filed by him was not submitted within time. The District Magistrate however held that it was submitted in time and ordered the election to be held with the result that the appellants were elected. The plaintiff thereafter brought the present suit in the civil Court for a declaration that the election of defendants 1 and 2 was void and liable to be set aside. The suit was dismissed by the Munsif, but on appeal the learned District Judge of Nadia held that the election of defendants was void and ordered it to be set aside. Defendants 1 and 2 have appealed. The basis of the judgment of the learned District Judge is that the nomination paper filed by defendant 1 was not submitted within 28 days as provided by Rule 15 (1) and that the provision of that rule is imperative. Defendant 1 therefore was not a duly qualified candidate and his election was illegal.

(2.) The learned District Judge is also of opinion that as the election could not be partially set aside, the election of both the defendants must be set aside. It is argued on behalf of the appellants that the provision of Rule 15 (1) is not imperative but is merely directory, and is of such a nature that any irregularity in respect thereof may be waived by the officer concerned in holding the election. In this case the Chairman who presided at the election accepted the nomination paper of defendant 1 and the District Magistrate who seems to be the final controlling authority adopted the view of the Chairman. We are however unable to agree with the view taken by the Chairman and the District Magistrate with regard to the irregularity of procedure complained of in this case. The words used in Rule 15 (1) are quite clear and are capable of one meaning only, namely that the person who is a candidate for election shall send his name to the Chairman in writing not less than 28 days before the date fixed for the election; in other words there must be 28 clear days between the submission of the nomination paper and the day on which the election is to be held. According to this calculation the nomination paper ought to have been submitted before midnight of the 18 November. There can be no doubt that there has been an infringement of this rule : see Rawlenshi Municipal Corporations Acts, Edn. 10, para. 230, p. 155.

(3.) The next question is whether the rule is merely a rule of procedure or it is so substantial as to affect the validity of the election. Rule 15 appears under the heading " Qualification of Candidates. " Rule 14 says that any person qualified to vote and not disqualified under the Act shall be qualified to be elected a commissioner. Rule 15, as I have already said, lays down that every person who is a candidate shall send his name to the Chairman not less than 28 days before the date fixed for the election. These are the two qualifications mentioned of a person who may validly be a can-date at a Municipal election. Want of any of these two qualifications disqualifies the candidate. It cannot therefore be said that Rule 15 only concerns itself with the procedure to be followed at the election. It seems to me however that it is a matter of substance and dealing as it does with the qualifications of candidates at a Municipal election it must be taken to be laying down a qualification without which a candidate cannot be said to be duly qualified. Whatever the reason of the rule may be, it is clear that the rule made it incumbent upon the intending candidate to send his name at a certain time fixed by the authorities. If on the other hand it is held to be directory and can be relaxed at the pleasure of the person holding the election, one does not know where to stop and up to what limit of time the indulgence may be shown. It seems to me that this rule should be strictly observed. I accordingly agree with the view taken by the District Judge that Rule 15 not having been complied with in this case it must be held that defendant 1 was not qualified at the time of the election and his election should be set aside.