PROSAD DAS MULLICK S/O SHYAMA CHARAN MULLICK, PERSON-IN-CHARGE OFHOOGHLY CHINSURAH MUNICIPALITY Vs. KARTIC CHANDRA MULLICK S/O SHYAMA CHARAN MULLICK

JUDGEMENT

(1.) This rule is directed against a judgment of Rule 8. Simpson Esq., District Judge of Hooghly dated 2 February, 1943, passed on an election petition presented by opposite party 1 under Section 36, Bengal Municipal Act, to set aside the election of opposite parties 2 and 3 as commissioners of the Hooghly Chinsurah Municipality. The material facts are not in controversy and may be shortly stated as follows: The term of the Hooghly Chinsurah Municipality which consists of 18 commissioners including the Chairman and the Vice-chairman was normally to have expired on 14 October 1942, under Section 56(1), Bengal Municipal Act. The term was however extended under el. (5) of the section by a notification dated 6th November 1941. On 21 March 1942, the Additional District Magistrate of Hooghly in exercise of the powers conferred upon him under Section 24(3), Bengal Municipal Act, read with Rule 2 (1) (a) (i) of the election rules framed under the Act fixed Sunday 8 November 1942 as the date for holding general election in all the wards of the Hooghly Chinsurah Municipality. By a subsequent order made on 11 May 1942 the date of election was changed from 8th November to 6 December 1942. The Commissioners thereupon appointed a committee under Section 21(1), Bengal Municipal Act, for the purpose of having the electoral roll prepared. On 28 August 1942, ten out of the eighteen commissioners of the Municipality including the Chairman and the Vice Chairman resigned. On 31 August 1942, the District Magistrate of Hooghly made an order under Rule 51F (6), Defence of India Bules, superseding the municipality. The order stood as follows: Whereas it is necessary and expedient to supersede the Hooghly Chinsurah Municipality for ensuring the due maintenance of the vital services of the said Municipality in the event of hostile attack, I the District Magistrate of Hooghly, in exercise of the powers conferred upon me by the Government of Bengal Notification No. 766 P. dated 24 January 1942, do hereby and from this date supersede the Hooghly Chinsurah Municipality under the provision of Rule 51F (6), Defence of India Rules. During this period of supersession, all the powers and duties which may, by or under any law for the time being in force, be exercised or performed by or on behalf of the Hooghly Chinsurah Municipality shall, be exercised and performed by Babu Prosad Das Mallick, B. L. of Hooghly at present a Commissioner of the Hooghly Chinsurah Municipality. All property vested in the Hooghly Chinsurah. Municipality shall during the period of supersession vest in the Government of Bengal. All the members of the Hooghly Chinsurah Municipality forming the present body of Commissioners thereof, shall as from to-day, vacate their offices as such members. The order shall take effect from 31 August 1942 and shall remain in force for the period during which the Defence of India Bules continue in force,

(2.) By a late order of the District Magistrate dated 80 September 1942, the period of supersession was limited till 81 March 1943. In spite of the supersession order, Mr. Prosad Das Mullick in whom all the powers and duties of the municipality vested, went on taking the necessary steps for holding the general election. The final electoral roll of the municipality was published on 3 September 1942, and on 6 December 1942, the election was held. There were three candidates for election as commissioners in ward. No, (3) where there were two seats, and these were (1) Biswa Nath Bose, (2) Raghu Nath Mallick and (8) Narendra Nath Sen. As the result of polling, the last two were returned elected, and Biswa Nath Bose was defeated. On 16 December 1942, opposite party 1 Kartic Chandra Mallik, in his capacity as a voter in ward No. 3 filed the present petition under Section 36, Bengal Municipal Act, before the District Judge of Hooghly, challenging the validity of the election of Raghu Nath Mallik and Narendra Nath Sen. Both these successful candidates were impleaded as principal respondents in the proceeding, and Mr. Prosad Das Mallik, the petitioner before us, was made a pro forma respondent. The allegations of Kartic Chandra in substance were that there were various corrupt practices committed by Narendra Nath Sen, and that the preparation and publication of the electoral roll were irregular and not in conformity with the provisions of Section 21, Bengal Municipal Act. Prosad Das Mallik, it was further alleged, was not authorised by the vesting order to conduct the election, as required by the Bengal Municipal Act, and the relevant rules made thereunder. The prayer of Kartik in the election petition ran as follows: Your petitioner prays that your Honour may be pleased to set aside the election of Babu Narendra Nath Sen and Babu Raghu Nath Mallick or in the alternative of Babu Narendra Nath Sen and find that corrupt practice having been resorted to by Babu Narendra Nath Sen and his agents he may be disqualified for the purpose of such fresh election as may be held under Section 42, Bengal Municipal Act.

(3.) After the respondents had filed their answers, the following issues were framed by the learned Judge: (1) Is the application, under Section 36, Bengal Municipal Act, made to this Court maintainable ? (2) Is Babu Biswa Nath Basu a necessary party ? (3) Did the vesting order made by the District Magistrate Hoogly under the Defence of India Rules authorise and empower respondent 3 to publish and conduct the election on 6 December 1942 as provided in the Bengal Municipal Act and the statutory rules framed thereunder ? (4) Were the acts done by respondent 3 in connexion with the election, held on 6 December 1942 legal and in accordance with the provisions of the Bengal Municipal Act and the statutory rules ? (5) Were the Electoral Bolls of the Municipality prepared and published in accordance with law ? (6) Was the election held on 6 December 1942 legally and properly conducted and is it legal ? (7) Did respondent 1 or his men do any acts amounting to corrupt practices within the meaning of Section 29, Bengal Municipal Act ? (8) If respondent 1 is guilty of any corrupt practice within the meaning of Section 29 of the Act, should he be disqualified for the purpose of a fresh election?