NASARUDDIN MANDAL Vs. ANATH NATH CHOWDHURY

JUDGEMENT

(1.) In this matter the plaintiff-respondent brought a suit to have the election of one Nasaruddin Mandal as President of Bhandarhati Union Board declared void. The facts of this case are as follows and are not disputed. The period of office of the members of this Union having come to an end a fresh election and nomination of members took place and the names of the members elected and nominated were notified in the Calcutta Gazette on the 5 March 1924. In accordance with Rule 32 of the Rules issued under the Government Notification No. 630, T.L.S.G. of the 13 October 1919, the Magistrate of Hooghly on the 1 March passed an order on the Sub-Divisional Officer to proceed with the election of a new President. Under Rule 36 of these Rules the members had to elect the new President within one month of the order and on the 17 March 1923, the Sub-Divisional Officer posted notices on the new members and to the old President for service on them, fixing the 26 March as the day on which the members of the Union should elect a President under his Presidentship. The plaintiff, the old President, received these notices on the 19 March and he served them on the members on the 20 and 21 March. On the 26 March, the meeting was held under the Presidentship of the Sub-Divisional Officer. Eight out of the nine members attended the meeting. The one member, who did not attend has also put in an affidavit saying that he was unable to attend for personal reasons and that if he could have attended he would have voted for the defendant. At the election held by the members, five voted for the defendant and three for the plaintiff. No one alleged at the meeting that it was not duly summoned. There after the plaintiff brought the present suit his main contention being that defendant No. 1 was not duly elected because seven days clear notice had not been given of the meeting for the election. Before he did so, he appealed to the Commissioner who overruled his objection. The case came up before the learned Munsif, who found against the plaintiff and dismissed the suit holding that the election of defendant No. 1 was duly made. In appeal the learned Officiating District Judge of Hooghly has found that as there was not clear seven days notice before the meeting was held the election is invalid and must be set aside. He has, therefore, issued a permanent injunction restraining the defendant No. 1 from sitting as a President of the Union Board and from taking over office from the old President. Against this order the present appeal is preferred.

(2.) In appeal, the following points are raised: first; that the Civil Court has no jurisdiction to entertain the suit; secondly, that there is no rule prescribing any period of notice to members of the Union Board for the election of a new President; thirdly, if Rule 8 of the Rules issued under Notification No. 4267 L.S.G.. of the 5 January 1920 which requires that at least seven days notice of all meetings of Union Board shall be given to every member, applies to this meeting also, that the rule is not mandatory but merely directory and the non-observance of it would not by itself make the election void; fourthly, if this rule applies, anyhow the plaintiff cannot raise it as he attended the meeting, raised no objection at the time that the meeting was not duly called but himself offered himself as a candidate for the election. He, therefore, cannot afterwards turn round and say that the whole proceedings are void; fifthly; the Civil Court should not set aside the election as any irregularity which occurred did not affect the result.

(3.) Now as to the first point, the argument is put before us that in view of Section 51 of the Bengal Village Self-Government Act, 1919, no civil suit would lie in such a matter as this. That section reads thus: "It shall be the duty of all Commissioners, District Magistrates, Sub- Divisional Magistrates, etc., to see that the proceedings of Union Boards are in conformity with law and with the rules in force thereunder. The Commissioner may, by order in writing, annul any proceeding which he considers not to be in conformity with law and with the said rules, and may do all things necessary to secure such conformity." It is urged on behalf of the appellant that in view of this section the Civil Court has no jurisdiction to entertain a civil suit of this nature and reference was made to certain reported cases in support of this contention. Those cases, however, only go so far as to establish that where the Legislature has set up a special Tribunal for the purpose of deciding certain matters, such matters shall be heard by that Tribunal and that Tribunal alone. As I read Section 51, I cannot believe that it was the intention of the Legislature to set up the Divisional Commissioner as the person finally to decide questions of franchise to the annulment of the ordinary Civil Courts right to decide such questions; and I must hold that this section is not broad enough, anymore than Section 120 of the corresponding Village Self Government Act, 1885, has been held to be, to debar Civil Courts from exercising their ordinary powers in this connection to try all suits under their general power under Section 9, C.P.C., which says, that "the Courts shall have jurisdiction (subject to the provisions contained in the Code) to try all suits of a civil nature excepting Suits of which their cognizance is either expressly or impliedly barred. A suit in which the right to property or to an office is contested is a suit of a civil nature not-withstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies." In this view I must hold that the Civil Court has full power to entertain the suit.