NESARADDIN MANDAL Vs. ANATH NATH CHOUDHURY

JUDGEMENT

(1.) In this matter the plaintiff-respondent brought a suit to have the election of one Nesaraddin Mandal as President of the Bhandarbati Union Board declared void. The facts of this case are as follows and are not disputed.

(2.) 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 March 5, 1924. In accordance with rule 32 of the rules issued under the Government notification No. 630 T.---L. S.-G. of October 13, 1919, the Magistrate of Hooghly on March 11, passed an order on the Subdivisional 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 March 17, 1924 the Subdivisional Officer posted notices on the new members to the old President for service on them, fixing March 26, 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 March 19, and he served them on the members on March 20 and 21. On March 26, the meeting was held under the Presidentship of the Subdivisional Officer. Eight out of 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. Thereafter, 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.

(3.) In appeal, the following points are raised: firstly, 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 a meeting to elect a new President; thirdly, if rule 8 of the rules issued under notification No. 4267 L. S.-G. of January 5, 1920, which requires that at least seven days notice of all meetings of a 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 offered, himself as a candidate for election. He, therefore, cannot afterwards turn round and say that the whole proceeding is void; fifthly, the Civil Court should not set aside the election as any irregularity which occurred did not affect the result.