BANKIM CHANDRA DUTTA Vs. KHAGENDRA NATH GANGULI

JUDGEMENT

(1.) This appeal arises out of a certain proceeding of the Municipality of Howrah, held on 18th April 1932. One Mr. B.P. Pain who was the Chairman of the Municipality, resigned on 4th March 1932. His resignation was accepted by the Local Government on the 24 of that month. Thereafter, on 18 April 1932, there was a general meeting of all the commissioners for the purpose of electing a new Chairman in the vacancy caused by the resignation of Mr. Pain. At that meeting three commissioners were proposed and seconded. They were Mr. B.C. Dutt, Mr. B.P. Pain and S.N. Kar. Mr. 8. N. Kar withdrew. A question was raised by one of the commissioners that Mr. Pain having resigned, was no longer eligible for being re-elected in view of the provisions of Section 27, Bengal Municipal Act 1884. After some discussions the meeting was adjourned to 18 May 1932. Before the adjourned meeting could be held the plaintiffs who are eight of the commissioners, instituted a suit on 16 May 1932 against the remaining twenty two commissioners, in the Court of the Munsif at Howrah for a declaration: (1) that Mr. Pain who was defendant 1 was not eligible for re-election in the vacancy caused by his own resignation; (2) that Mr. B.C. Dutt plaintiff 1, should be declared to have been elected Chairman under Section 34-B of the business rules of the Howrah Municipality; and (3) for an injunction restraining the defendants from putting forward Mr. Pain as a candidate for re-election as Chairman in that vacancy and from voting for him at any meeting for filling up that vacancy. The Court of first instance held that Mr. Pain was not eligible and it granted the injunction that was prayed for. It held also that Mr. Dutt, plaintiff 1 could not be declared to have been duly elected as Chairman. An appeal was taken before the District Judge against the decision of the Munsif on the second point and a cross-objection also was filed before him. The lower appellate Court reversed the decision of the trial Judge on the first point and held that Mr. Pain was eligible and made the consequential order that the meeting for re-election should go on. The learned District Judge agreed with the Munsif in the view that Mr. Dutt could not be declared to have been duly elected. Against this decision of the learned District Judge the plaintiffs have come up to this Court in second appeal.

(2.) It appears that there was a certain amount of controversy in the lower appellate Court over the relationship between Section 23(2) and Section 27, Bengal Municipal Act, and the District Judge held, and in my opinion rightly held, that Section 23, Sub-section (2) is the real section which confers upon the commissioners the right to elect a Chairman either at an original election or at a bye-election, the latter being governed by the particular provisions of Section 27 of the Act. On behalf of the respondents it was said that Section 27 only lays down a procedure and is not a disqualifying section. There is no authority however for saying so. Section 27, as it stands, clearly excludes the person whose resignation or removal caused the vacancy that is to be filled up; and that being so, it is clearly a disqualifying section, disqualifying from the bye-election the person by whose resignation or removal the vacancy was caused. Now Section 27 runs thus: If any Commissioner, Chairman or Vice-Chairman shall be unable to complete his full term of office or shall avail himself of leave granted under Section 26-B, the vacancy caused by his resignation, or removal, or death or absence on leave, shall be filled by the appointment or election as the case may be of another person.

(3.) The chief controversy between the parties is whether the expression "another person" that is to be found in Section 27 really excludes the person whose resignation or removal has caused the vacancy to be filled up. The learned District Judge is of opinion that it does not; herein, in my opinion, ho is clearly wrong. He thinks that the expression "another person" was put in by the legislature inadvertently without any realization of the inconsistency that it would, in view of Section 22, create, and in that view he has practically thrown out the expression altogether from the statute. This, in my opinion was a very violent thing to do, especially in view of the fact that by putting a certain interpretation a restricted meaning on one or two words in Section 22 of the Act from which the inconsistency arises, inconsistency may, as I will presently show, be removed and the two sections may be harmonized. Section 27 says that a. Commissioner, Chairman or Vice-Chairman whose removal or resignation has caused the vacancy, can under no circumstances be elected at a bye-election. Section 22 says that a Commissioner (who I may observe at this stage, may become a commissioner either by appointment or election) who has been removed on certain grounds cannot be elected or re- elected without the consent of the Local Government, implying thereby that there would be no bar to his election or re-election when the consent of the Local Government is obtained.