BIRENDRA LAL CHAUDHURY Vs. NAGENDRA NATH MUKERJEE

JUDGEMENT

(1.) This Rule is directed against an order dismissing a petition for setting aside an election. The facts relevant to the Rule may be stated as follows;

(2.) The Government of Bengal fixed March 10, 1931, as the date for holding the first genera election under the Bengal Municipal Act of 1932 in Ward No. 2 of the Hoognly Uminsura Municipality. There were four candidates for two seats, of whom one was Babu Sachindra Lal Chaudhury since deceased, the brother of the petitioner Birendra Lal Chaudhury, It appears that after the polling had gone on for some time on March 10, it was discontinued and the election was not held on that date. By a subsequent order the Local Government fixed another date, namely, April 15, 1934 for holding the said election and directed that the proceedings should commence from the stage where the election had failed on the previous occasion. On April 6, 1934, Babu Sachindra Lal Chaudhury died. The grievance of the petitioner is that in spite of this event the Chairman of the Municipality did not countermand the notice of the poll and invite fresh nominations, but that he merely cancelled the name of the deceased candidate from the list of the candidates printed on the voting papers and allowed the election to be held on the fixed date, with the result that the opposite parties were declared elected. The petitioner filed the petition under Section 36 of the Bengal Municipal Act before the District Judge of Hooghly questioning the validity of the election on various grounds. The matter was heard by the learned Subordinate Judge Mr. Dinesh Chandra Sen who by his order dated July 28, 1934, dismissed the petition. Against that order the petitioner has obtained this Rule.

(3.) One of the grounds urged is that the learned Subordinate Judge misconstrued Section 23, Sub-section (2), Clause (iii) of the Bengal Municipal Act in that he held that the occupier of a holding is not required to carry on a trade or profession for the period of 12 months immediately preceding the election within the limits of the Municipality. It is contended that the learned Subordinate Judge should have held that the necessary qualification is that a person must have been carrying on some trade or profession for not less than 12 months. In my judgment this objection is hit by the rule laid down in the case of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6, and it does not call for revision by this Court under Section 115 of the Civil P. C.. The petitioner, however, has obtained this Rule and I have allowed the matter to be argued on the merits.