SACHINDRA NATH DAS Vs. SURYA KANTA MISRA

JUDGEMENT

(1.) This matter has been very fully and ably argued by Mr. Mallick on behalf of the petitioner, and we have given very careful attention to all the arguments put forward by him: but we have come to the conclusion that this is not a matter in which this Court can properly interfere. It is necessary that I should briefly recall the facts of the case in order to make it clear what was the position which has given rise to these proceedings. The petitioner Sachindra Nath Das and one Surya Kanta Misra were candidates for election to the Bashirhat Local Board. They were candidates from thana Baduria within the district of 24-Parganas and the election was held in the year 1936. The petitioner put in one nomination paper accompanied by a treasury chalan duly stamped, in compliance with the provisions of Rule 29 of Election Rules under the Bengal Local Self-Government Act, 1885, as modified up to 1st September 1933. Surya Kanta Misra on the other hand put in four nomination papers but with only one treasury chalan which was attached to one of the nomination papers. The Sub- Divisional Officer of Bashirhat, in the exercise of the powers delegated to him by the District Magistrate under Rule 30 of the Election Rules, appointed the 19 November 1936 as the date for holding the scrutiny of nomination papers and fixed 19 December 1936 as the date of the election. On the date of the scrutiny, the Sub-Divisional Officer of Bashirhat accepted as being in order the nomination paper put in by Sachindra Nath Das but he rejected the nomination paper of the rival candidate Surya Kanta Misra on the ground that the particular nomination paper which was accompanied by the treasury chalan was not properly filled in as required by Rule 29 of the Election Rules and that as the other nomination papers had no treasury chalans attached to them, they could not be looked at and were of no use to the candidate. Thereupon as there was no other candidate except the two persons whom I have named, the present petitioner Sachindra Nath Das was declared duly elected as a member of the Bashirhat Local Board from thana Baduria. That the Sub-Divisional Officer was wrong in not looking at all the nomination papers put in by Surya Kanta is clear beyond all doubt whatever. Shortly after Sachindra Nath had been declared elected, Surya Kanta applied for a review of the order which the Sub-Divisional Officer had made with regard to the nomination and the Sub-Divisional Officer fixed 28 November 1936 as the date for the hearing of that application. Before 28 November 1936 arrived, however (in foot on the day following the making of the order by the Sub-Divisional Officer) there came a circular letter from the Deputy Secretary to the Government of Bengal to this effect: Government are advised that the purpose of Section 16-A would be served if in such circumstances the candidate is allowed to submit more than one nomination paper along with a receipt of single deposit made under the section and the Government of Bengal are therefore pleased to direct that a candidate for election from a particular constituency may be allowed to fill more than one nomination paper along with treasury chalan showing that a deposit has been made.

(2.) One would have thought that no one with any knowledge of election matters, and indeed no one exercising a reasonable amount of common sense could have failed to realise that the deposit which was required to be made was not in the nature of a fee for the examination of a particular nomination paper but was of a different nature altogether. There was therefore no reason at all why a candidate should not submit as many nomination papers as he chose to do, so that if one of them happened to be not in order, one of the others could be scrutinised and if found to be in order, accepted and held to be effective. Apparently, there was some confusion of thought in the matter and so the Government of Bengal thought it desirable to send out the circular letter to which I have just referred.

(3.) The matter came before the Sub-Divisional Officer on 28 November and was considered by him in the presence of the parties and their pleaders, and no doubt after hearing arguments. On 1 December, a decision was given by the Sub-Divisional Officer dismissing the application. So far as any question of reviewing the order with regard to the nomination is concerned, the matter was concluded, the result being that on 1 December 1936 the present petitioner Sachindra Nath was, or rather had been already declared a member of the Local Board. Some three weeks later, a judgment was given in this Court in Chandra Kishore Mandal V/s. Sachindra Kumar Roy Choudhury . In that case it was held that the High Court has jurisdiction to revise an order made by the District Magistrate under Rule 1-A of the Election Rules. Whether or not that judgment was brought to the notice of the parties, we do not know. The position still was that the order made by the Sub-Divisional Officer held good. But on 8 January 1937 a petition was filed by Surya Kanta (who is of course the respondent in the present proceedings) before the District Magistrate asking that the election should be set aside on the ground that his nomination papers had been rejected and improperly rejected. On 16 January 1937 the District Magistrate, who at that time was Mr. Harold Graham, rejected the application holding that he had no power to grant the relief sought for by Surya Kanta Misra. It must be taken, I think, that the rejection of the application by Mr. Graham amounted to a final order within the meaning of the Election Rules. Still no action was taken in the way of moving this Court in the matter. What happened however was that some of the supporters of Surya Kanta Misra headed by one Rosunali Mandal approached the Local Government in the matter, and put forward the same kind of contentions which had previously been put forward before the District Magistrate on 24 February 1937. The Government of Bengal sent the application which had been put in by Rosunali Mandal and other persons to the District Magistrate. It is said that it was accompanied by a direction that the Magistrate should hold a further enquiry in the matter and should decide the application under Section 18-B(1)(o), Local Self-Government Act. About a month later; there appeared a notice in the Gazette that the present petitioner Sachindra Nath Das had been validly elected. The notice in the Gazette is dated 25 March 1937 and the Notification No. 1692 of the Local Self-Government Department of the Government of Bengal was dated 22 March, 1937. On 12 April 1937 there was a meeting of the newly constituted Local Board and Sachindra Nath was duly sworn in as a member and, so it is said, took part in the election of the Chairman and the Vice- Chairman. Some days later, that is to say on 21 April 1937 Mr. Graham dealt with the matter of the application of Rosunali and others and dismissed it on the ground that he could not re-open the question or review his previous order. The petitioner contends that this in effect was the third of a series of final orders. At any rate, it was undoubtedly a final order and in the ordinary course of events that order would have decided the case once and for all. It so happened however that in the following May, Mr. Graham went on leave and he was succeeded by Mr. Carter, the District Magistrate of the 24-Parganas.