DR KASIRUDDIN TALUKDAR Vs. DRMAFIZUDDIN AHMED

JUDGEMENT

(1.) This appeal has arisen out of a suit for a declaration that the constitution of the present District Board of Bogra is illegal and ultra vires; that the election of the Chairman was illegal and that they are not entitled to assume office as such. The District Board, as at present constituted, consists of 18 members, 12 elected from the two Local Boards, namely the Wast Bogra Local Board and the West Bogra Local Board, and 6 nominated by the Government. Defendants 1 to 7 were the members from the West Bogra Local Board, defendants 8 to 12 from the East Bogra local Board, and defendants 13 to 18 are nominated members. Defendants 5 to 7 are the nominated members of the West Bogra Local Board and defendants 1 to 4 are the elected members. Defendants 8 to 10 are the elected members, and defendants 11 and 12 are .the nominated members of the East Bogra Local Board. Defendant 18 is the father of defendant 5. The plaintiff is an elected member of the West Bogra Local Board and the pro forma respondent who was originally plaintiff 2, and was made a pro forma defendant on his choosing not to proceed with the suit, is an elected member of the East Bogra Local Board. The plaintiff's case is that defendants 5 and 11 had not the residential and other qualifications required by law, and as such they were not eligible for election as members of the District Board; that by the illegal election of defendants 5 and 11 the plaintiff lost his chance of being elected to the District Board, and that the election of defendants 5 and 11 having been illegal, the election of the other elected members and the other office bearers of the District Board was illegal and ultra vires.

(2.) The contesting defendants pleaded that the civil Court had no jurisdiction to try the suit, that defendants 5 and 11 had the necessary qualifications for being elected as members of the District Board, and that the suit was mala fide and brought in collusion with and at the instance of defendant 3. The trial Court dismissed the suit holding that defendant 5 was qualified for election but that defendant 11 was not so qualified as he had not the necessary residential qualification required by law and that the civil Court has no jurisdiction to try the suit. The lower appellate Court came to the same conclusion as regards qualification of defendants 5 and 11 but held that the civil Court had jurisdiction to try the suit, and that the present plaintiff had no right to challenge the election of defendant 11. It therefore dismissed the appeal. In this appeal it is urged that defendant 5 had not the requisite qualification for membership of the District Board and that as a voter of the Local Board the plaintiff was entitled to challenge the election of defendant 11. Under Section 138-A, Bengal Local Self- Government Act, it would be lawful for the Local Government to make rules consistent with the Act for any District Board for the purpose of determining the qualifications and disqualifications of members. On referring to Section 9 (2), of the same Act we find that every person who is qualified to vote at an election of members of a Union Board within the area under the authority of a Local Board shall be entitled to be a member of the Local Board if duly elected thereto. Under Rule 59 of the Election Rules under the Local Self-Government Act, the only persons qualified for election as members of the Local Board in the district are qualified for election as members of the District Board. So that rules have, in fact, been framed laying down the qualifications of members of the District Board. Section 7,. Village Self-Government Act, lays down the qualifications of voters and members of the Union Board: Every male person of the full age of 21 years who, during the year immediately preceding the election has paid a sum of not less than one rupee as cess under the Cess Act, 1880, in respect of lands situated wholly or in part in suchUnion or who during the year immediately preceding such election has been assessed at and paid a sum of not less than one rupee for the purpose of the Union rate payable under this Act, or who is a member of a joint undivided family, which during the year immediately preceding the election has paid a sum of not less than one rupee as such cess, rate or tax, shall be entitled to vote at an election of members of the Union Board.

(3.) By virtue of Section 9 (2), Bengal Local-Self Government Act and Rule 59, of the Election Rules under that Act, these electors are qualified to be members of the District Board. The question then is whether defendant 5 and defendant 11 were qualified to vote for the election of members of the Union Board under this rule. It was found that defendant 11 had no place of residence within the Union and he is, therefore, not qualified. As regards defendant 5, it is urged that he has a place of residence within the Union and that he is entitled to vote under subcl. (3) of Section 7. It is also claimed that he is entitled to vote under sub-clause (1), but on the facts found he is clearly not so entitled. It has been urged on the other hand that on the facts found he is also not entitled to vote under sub-clause (3) as well as owing to the fact that he has no place of residence within the Union. He claims to have a place of residence at Sultanganj within the Union where for some months of the year during the mango season he lives with his father, defendant 18. The finding is that this residence belongs to his father, that he lives in joint family with his father, and that therefore he is entitled to come in under sub- clause (3). It is clear however that unless there is evidence that he has some title to this place of residence, he will not be eligible as having a place of residence within the Union. It has been found that he and his father both inherited shares in the property left by his mother and it is claimed, therefore, that they are members of a joint undivided family. The evidence however shows that defendant 5 is mainly supported by his father and that the father has married another wife by whom he has other children and that it would be more correct to say that they are two members of a family having a joint interest in inherited property rather than that they are members of a joint undivided family. In any case, even if they can be regarded technically as members of a joint undivided family, the evidence shows that the cess was paid not by the joint family but by defendant 18, and therefore defendant 5 was clearly not qualified under this rule. It is doubtful also whether he comes under the proviso which states that only one member of a joint undivided family is entitled to vote. It is true that defendant 18 asked that his son, defendant 5, should be allowed to vote in his place. But it is questionable whether he can be said to have been nominated to vote on behalf of a joint family. But both on the ground that he possessed no place of residence within the Union and that he was not a member of a joint undivided family which paid more than one rupee as cess during the year immediately preceding the election, it is clear that defendant 5 had not the necessary qualification to vote for the election of the members. Therefore, he is not qualified to be a member of the District Board. The other point that remains to be decided is whether the civil Court had jurisdiction to decide the dispute as to the qualifications of the members of the District Board. In this connection the relevant rules are first of all Rule 1-A of the Election Rules under the Local Self Government Act which states: All disputes arising under these rules other than objections under Rules 15 and 42 shall be decided by the Magistrate of the District and his decision shall be final.