GOPESH CHANDRA ADITYA Vs. BENODE LAL DAS

JUDGEMENT

(1.) This appeal is on behalf of defendant 3 in a suit for a declaration, by the plaintiff that his nomination paper has been illegally rejected and for a further declaration that defendants 2 to 4 have not been elected as members of the Municipal Board of Sylhet.

(2.) The plaintiff stood as a candidate for election from Ward No. 11 of the Sylhet Municipality, as also defendants 2 to 4. The 18 April 1934 was fixed for the election. The plaintiff filed two nomination papers: one on 28 March and one on 29 March 1934. These nomination papers are admittedly not in order. On 3 April 1934 he, however, sent a nomination paper, otherwise in order, to the Election Magistrate. As under the rules framed by the Local Government under the Assam Municipal Act, nomination papers have to be sent to the Chairman of the Municipality and not to the Magistrate, the latter sent the said nomination paper to the Municipal Office, and it is admitted that it reached the Chairman of the Municipality on 5 April 1934. The Municipal Office was closed from 30 March to 4 April. Defendants 2 to 4 had filed valid nomination papers before 30 March 1934. An objection was preferred to the validity of the nomination paper of the plaintiff. The Magistrate heard the objection under Rule 14, and held that it was not a good nomination. There being three seats, defendants 2 to 4 were declared elected after the rejection of the plaintiff's nomination paper.

(3.) The plaintiff filed this suit praying for the declaration set out above. In the suit the Municipal Board of Sylhet is made defendant 1, and the other defendants are the persons declared elected from Ward No. 2. The defence filed by all the defendants are on the same lines. The question on the merits is whether the plaintiff's nomination paper had been rightly rejected by the Magistrate. Two further questions have also been raised before me namely: (1) that the appeal before me is incompetent; and (2) that the civil Court has no jurisdiction to entertain a suit of this description. Both the Courts below have held that the civil Court has jurisdiction to entertain the suit, and that the plaintiff's nomination paper had been illegally rejected by the Election Magistrate. The plaintiff got a declaration that the election of defendants 2 to 4 was not valid. The judgment of the lower appellate Court was pronounced on 28 June 1934. As two Courts had held the election to be invalid the Local Government, under the Assam Municipal Act, has appointed, on 9 July 1934, some persons to be members of the Municipal Board to fill up the vacancies caused by the Courts below holding that defendants 2 to 4 have not been validly elected. One of the persons so appointed is defendant 3 who had alone filed, on 30 August 1934, the appeal to this Court.