SIBESH CHANDRA PAKRASHI Vs. BIBI BHUSAN ROY

JUDGEMENT

(1.) This is an appeal by the defendant from a decision of the Subordinate Judge of Pabna dated 26 January 1926 which affirmed the decision of the Munsif of Serajgunj, dated 9th May 1925. The suit in which this appeal arises was for setting aside the election of defendant 1 who was elected as a member of the Serajgunj Local Board and for an injunction restraining him from taking his seat as a member of the said Board. The main ground on which the plaintiff came to Court seams to be this, that one Tarak Chandra Banerji proposed the plaintiff as a candidate for election. Objection was taken by defendant 1 to Tarak's proposing the plaintiff as a candidate for the election, as it was said that Tarak was not a qualified voter. This objection of defendant 1 seems to have prevailed with the presiding officer. The plaintiff was also duly seconded by another qualified voter and that seconder also was held by the presiding officer not qualified to vote. The result was that the name of the plaintiff was removed from the list of nominated candidates. Both the Courts below concurrently found that the presiding officer did erroneously hold that Tarak and the seconder were not qualified voters and that the decision of the presiding officer was wrong. The Munsif, accordingly, declared that the plaintiff was duly proposed and seconded as a candidate for election as a member of the Serajgunj Local Board at the Sadiya Ohandpur Centre and his name was wrongly removed from the list of candidates there, that the election of defendant 1 as a member of the said Board from the Chauhati thana be set aside as invalid and that he, the said defendant 1, be restrained by an injunction from sitting and acting as a member of the said Board for the said thana.

(2.) This decision was, as I have already stated, affirmed by the learned Subordinate Judge.

(3.) In second appeal, the only substantial ground which has been taken by Dr. Radha Benode Pal, who has appeared for the appellant, is that a suit of this description does not lie in a civil Court and that the civil Court has no jurisdiction to entertain the present suit. Reliance has been placed on the Election Rules under the Local Self-Government Act and special reference is made to Rule 1-A. These rules were framed under Section 138(a), Bengal Local Self- Government Act 3(B.C.), 1885. It appears, however, that Rule 1-A is of no assistance to the defendant-appellant, for it seems to us that the objections which were taken by the plaintiff were such objections as fell within Rule 42, Election Rules. In order to determine as to whether Tarak was a qualified voter, it was necessary for the presiding-officer to determine the objections to voters within the meaning of Rule 42. Rule 1-A provides that all disputes arising under these rules other than objections under Rules 15 and 42 shall be decided by the Magistrate and his decision shall be final. So according to this rules, any objection decided by the presiding officer under Rule 42 is exempted from the rule which makes all other decisions of the Magistrate final and not liable to be challenged in a civil Court. Objections which were determined, as it appears clear from para. 5 of the plaint do come under Rule 42 and are, therefore, cognizable by the civil Courts. We think in this view the decision of the lower Court is correct and that the appeal must, accordingly, be dismissed with costs.