Surendba Nath Roy v. Prosad Chandra Chakrabutty — 1936 DIGILAW 327 (CAL)

JUDGMENT R.C. Mitter, J. - These two appeals arise out of two suits being No. 268 and 326 of 1934, respectively, of the Court of the Munsif at Amta. The first-mentioned suit has been instituted by a voter of the Tajpur Union constituted under the Bengal Village Self-Government Act. There are three Defendants in this suit, Defendants No. 1 and No. 2 being on the 19th April, 1934, declared elected at a general election held in September, 1933 and No. 3 was appointed by the District Magistrate on the 19th April, 1934, as a member of the said Union Board under sec. 6, sub-sec. (3) of the Bengal Village Self-Government Act. The validity of the election of Defendants Nos. 1 and 2 and the appointment of Defendant No. 3 has been challenged on the ground that the said persons do not ordinarily reside within the said Union, and so were not qualified to stand as candidates for election. 2. The second-mentioned suit was instituted by three voters of the Shingti Union. They challenge the validity of the appointment of the Defendant in that suit as a member of the said Union Board on the self-same ground as the appointment of Defendant No. 3 in the other suit is challenged. In both the suits the Plaintiffs pray for a declaration that the Defendants were not eligible for election or appointment, for a further declaration that the election and appointment of the Defendants are "illegal, ultra vires and therefore ought to be set aside," for a perpetual injunction for restraining the Defendants from taking their seat in the Union Boards of Tajpur and Shingti respectively, and for costs. In both these suits, which were tried by different Munsifs, a point was raised by the Defendants that the Civil Court had no jurisdiction to entertain the suits and in support of the said contention the case of Mahedar Rahaman Mia v. Kanti Chandra Basu 38 C.W.N. 838 (1934), was cited but the trial Courts held that that was a case not under Village Self-Government Act, but under the Local Self-Government Act and was so distinguishable. The trial Courts accordingly held that the suits were entertainable. The trial Courts accordingly held that the suits were entertainable. On the merits it was held that Defendant No. 1 in the first-mentioned case had the qualification of a candidate for election, as he resided within the Union during two months of the summer, one month and a half during the puja vacation and on Sundays and gazetted holidays, but the other two Defendants who came to their village homes within the Union only on Sundays and gazetted holidays had no such qualification. The said Court accordingly dismissed the suit against Defendant No. 1 and decreed it against the other two Defendants and restrained the latter from taking part in the meetings of the Union Board. In the second suit, the learned Munsif recorded a finding that the Defendant was for similar reasons not a resident within the Union, and decreed the suit giving the Plaintiffs similar relief. Against the decree passed in the first suit two appeals were preferred-one by the Plaintiff in which he challenged the correctness of the decree passed by the first Court in favour of Defendant No. 1, and the other by Defendants Nos. 2 and 3 who challenged that decree passed against them by the trial Court. Against the decree passed in the second suit the Defendant preferred an appeal. These three appeals were heard by the same Subordinate Judge, Mr. Sitesh Chandra Sen, but at different times. He delivered two separate judgments on different dates. He dismissed both the suits on the ground that no suit lay in the Civil Court. In both the second appeals, the point taken is that this view is wrong and prayers made for the restoration of the decrees of the trial Court. At the beginning I may state that the case against Defendants Nos. 1 and 2 of the first suit, who have come into the Union Board through election, has to be considered apart from the case against Defendant No. 3 of the first suit and the sole Defendant of the other suit, because they have come into the Board by appointment made by the District Magistrate. I will accordingly first take up the case of the first two Defendants of the first suit. 3. In my judgment, the validity of their elections on the ground that they had not the necessary qualification of candidates as defined in sec. I will accordingly first take up the case of the first two Defendants of the first suit. 3. In my judgment, the validity of their elections on the ground that they had not the necessary qualification of candidates as defined in sec. 7 (2) cannot be challenged in a Civil Court. There is no dispute about the principles governing such cases. Where the right or liability has been created by a statute, the remedy provided for in the statute is the exclusive remedy. In the case of Nesaraddin Mandal v. Anath Nath Chaudhury ILR 52 Cal, 943 (1925), a case cited by the Appellants' Advocate to support his contention that the suit was competent, the said principle was recognised. There the election of a President of a Union Board was challenged by a civil suit on the ground that the notice convening the meeting at which the President was elected had not been served on the members of the Board in proper time. There was no statutory rule defining the authority for adjudicating upon the subject-matter of the complaint in that case. Sec. 51 of the Village Self-Government Act which had cast a duty upon the Divisional Commissioner, the District Magistrate, the Sub-Divisional Magistrate and the Circle Officer to see to the regularity of meetings of Union Boards was held not to include the case before the Court, that is to say, it was held that the said persons had not been constituted by the Legislature to be tribunals for deciding matters involving the exercise of franchise. In my judgment in Gopesh Chandra Aditya v. Benode Lal Das 40 C.W.N. 553 (1936), Which has been affirmed by a Division Bench, I have pointed out the principles regulating such matters. The Legislature has empowered the Local Government to make rules "for registration of voters and candidates and for regulating all elections" held under the Bengal Village Self-Government Act "and determining the authority who shall decide dispute relating to such elections." [sec. 101, sub-sec. (2), cl. (a)]. If such authority has been determined by the rules promulgated by the Local Government, the party aggrieved by the result of an election must go to that authority for relief and cannot seek relief elsewhere. 101, sub-sec. (2), cl. (a)]. If such authority has been determined by the rules promulgated by the Local Government, the party aggrieved by the result of an election must go to that authority for relief and cannot seek relief elsewhere. By notification No. 630 T-L. S.G. dated the 18th October, 1919, the Local Government published some ruled: Rule No. 6 gave the Circle Officer the power to prepare the voters' list, and to determine all disputes relating to the inclusion or exclusion of persons from the voters' list. Rule 8 has required candidates seeking election to send their nominations to the Circle Officer who is to determine the question as to whether the persons seeking election have the necessary qualification and r. 9 makes the decision of the Circle Officer final. R. 38 gives the District Magistrate or the sub-Divisional Magistrate acting under the orders of the District Magistrate power to decide all disputes arising under the said rules. These rules are deficient in this respect that all manner of disputes that may arise in connection with elections are not dealt with by them, as for instance no provision is made therein where an election is challenged on the ground of corrupt practice, and the person who is to entertain or decide such a dispute is not indicated by these rules. In some specified matters the Circle Officer is empowered, and the District Magistrate is given the power to decide disputes under the rules. It is for the purpose of removing these defects in the rules that sec. 17B was added to the Village Self-Government Act by the amending Act of 1935 (VIII of 1935, B.C), which not only constituted the District Magistrate the tribunal for deciding all election disputes but also provided for an Appellate tribunal. 4. It is because the rules framed and published by the Local Government on the 13th October, 1919, are of the aforesaid nature that two contentions have been raised by the learned Advocate for the Plaintiffs Appellants. They are, (i) that the rules if they have determined the authority for deciding disputes relating to election are ultra vires, and (ii) even if intra vires, by them the Local Government has not indicated the tribunal for deciding election disputes. 5. The first point has been put in the following manner. It is said that no doubt sec. 101, sub-sec. (2), cl. (a). 5. The first point has been put in the following manner. It is said that no doubt sec. 101, sub-sec. (2), cl. (a). empowers the Local Government to determine the authority for deciding disputes relating to elections, but that the Local Government is bound to set up one and only one such authority. It is said that the Local Government cannot by rules say that the Circle Officer is to determine election disputes of a particular nature and the District Magistrate certain other disputes. For this proposition the case of Lachmi Chand Suchaniti v. Ram Pratap Choudhry ILR 14 Pat. 24 (F.B.) (1934), has been cited. There a suit was brought by the Plaintiff in which the return of the Defendants as successful candidates at a District Board election was challenged as it proceeded upon a wrong counting of votes. The Court held that the Local Government had not by rules set up a special tribunal to decide a dispute of such a nature. In the course of the judgment, however, it was observed that if the returning officer had been made by the rules such a tribunal the rules would have been ultra vires. The reason is suggested in the judgment of Wort, J., namely, that in the majority of election disputes the final decision of the returning officer is challenged and if the returning officer is set up by the rules framed by the Local Government as the tribunal for deciding the validity of his own acts and decisions, then those rules would be fundamentally wrong, making, so to say, a person judge in his own cause, and so ultra vires. In my judgment the said case does not support the contention of the Appellant and I hold that rr. 6, 7, 8. 9 which are the only rules material for the case before me are intra vires. 6. This leads me to the consideration of the second point. The rules are not comprehensive enough, but if the said rules have determined the authority to decide certain specified matters touching elections, that authority is the sole authority for deciding the matters so specified and to that extent the Civil Courts have no jurisdiction. 6. This leads me to the consideration of the second point. The rules are not comprehensive enough, but if the said rules have determined the authority to decide certain specified matters touching elections, that authority is the sole authority for deciding the matters so specified and to that extent the Civil Courts have no jurisdiction. Rules 6, 8 and 9 have made the Circle Officer the exclusive tribunal for deciding questions bearing upon qualifications of voters and of candidates who offer themselves for election, and no suit would lie in a Civil Court for setting aside an election or declaring an election invalid on the ground that persons appearing on the voters' list and who had voted for the candidate returned had not the qualification of voters as defined in sec. 7(1) or that the returned candidate whose nomination had been accepted by the Circle Officer, had not the qualification prescribed in sec. 7 (2) of the Village Self-Government Act. In a case not governed by Act VIII of 1935, a suit for declaring an election invalid on other grounds, e.g., for corrupt practice, would lie in a Civil Court. This I take it is the view of my learned brother Nasim Ali, J., in the case of Mahedar Rahaman Mia v. Kanti Chandra Basu 38 C.W.N. 838 (1934), which, though a case under the Local Self -Government Act, is pari materia. The case before me concerning the challenge to Defendants Nos. 1 and 2 is also covered by a decision of a Division Bench in the case of Purna Chandra Chaudhury v. Alep Biswas 40 C.W.N. 543(1935). I accordingly hold that the lower Appellate Court has rightly held the suit so far as it has challenged the validity of the election of Defendants Nos. 1 and 2 does not lie. 7. The next question is whether the first suit so far as it has challenged the validity of the appointment of Defendant No. 3 and the second suit where the sole Defendant is a nominated person are maintainable. An answer in the affirmative would lead to the anomalous result that whereas an elected member of a Union Board is saved from attack in a Civil Court on the ground put forward in these cases, an appointed member would not be so. An answer in the affirmative would lead to the anomalous result that whereas an elected member of a Union Board is saved from attack in a Civil Court on the ground put forward in these cases, an appointed member would not be so. This aspect of the matter made me hesitate in holding that such a suit would be maintainable, and although after giving the matter my anxious consideration I hold that such a suit is maintainable in a Civil Court, I cannot say that I have no doubts in the matter. I have therefore formed the opinion of giving the Respondents an opportunity to carry the matter further, if they so desire. 8. All the cases of this Court where the jurisdiction of the Civil Court was questioned were cases where elections, either to the Union Board, Local Board or District Board were challenged. I have noticed some of the cases before. Even in the case of Kasiruddin Talukdar v. Maffizuddin Ahmed 40 C.W.N. 753(1936), where the question of the validity of the election of the successful candidates as Chairman and Vice-Chairman of a District Board depended ultimately upon the validity of the appointment as members of the Union Board of some persons who had voted for them, the suit was in terms a suit to challenge the validity of elections. So far as I am aware the point which I have to consider in dealing with this part of the case is of first impression. Sec. 6, sub-sec. (i) of the Village Self-Government Act empowers the Local Government by notification to establish Union Boards for Unions constituted under sec. 5 of the Act. Sub-sec. (2) provides for election to such Boards and sub-sec. (3) contemplates the appointment to such a Board of members by the District Magistrate not exceeding one third of the whole number of members fixed under sub-see. (i). The proviso to sub-sec. (3) is important. It limits the choice of the District Magistrate. He has to appoint persons who are eligible for election. Sec. 7 is divided into two parts. The first part deals with the qualifications of voters. They must have one of the qualifications specified in cls. (a), (6) or (c) of sub-sec. (1) and must have "a place of residence within the Union." The second part of the section deals with the qualifications of a candidate eligible for election. Sec. 7 is divided into two parts. The first part deals with the qualifications of voters. They must have one of the qualifications specified in cls. (a), (6) or (c) of sub-sec. (1) and must have "a place of residence within the Union." The second part of the section deals with the qualifications of a candidate eligible for election. He must be eligible as a voter and must be resident within the Union. The explanation defines the term "resident." He must ordinarily reside within the Union. There is thus a contrast in this respect between a person claiming as a voter and one standing as a candidate. The former must have a place of residence within the Union but the latter must ordinarily reside within the Union. The decision of the Division Bench in the case of Dwijabar Das v. Haripada Biswas (7), which is binding on me, seems to imply that a person who fulfils the conditions laid down in any of the cls. (a), (b), (c) of sec. 7 (1) would be a voter if he has a house within the Union where he goes and resides a few days in the year but such a person would not be eligible as a candidate for election. To be so eligible his stay at his house there must be a more prolonged one. 9. It is admitted that the names of Defendant No. 3 of the first suit and of the sole Defendant of the second suit were in the voters list as prepared by the Circle Officer. It may be taken that the Civil Court would have no jurisdiction to consider the question whether they are voters or not. They must be taken to be voters. But if Dwijabor Das' case 38 C.W.N. 542 (1933), has been rightly decided these Defendants would not necessarily be persons eligible for election. Sec. 101, sub-sec. (2), cl. (a) empowers the Local Government to regulate by rules the manner of elections and to determine the authority who is to decide disputes concerning elections. Rules 8 and 9 contemplate the case of persons actually standing for election. Sec. 101, sub-sec. (2), cl. (a) empowers the Local Government to regulate by rules the manner of elections and to determine the authority who is to decide disputes concerning elections. Rules 8 and 9 contemplate the case of persons actually standing for election. There is no procedure in the rules for enabling the determination by any authority of the question as to whether a person who is not seeking election has the qualifications of a candidate for election and if any rule had been framed by the Local Government by which a tribunal or an authority had been determined by the Local Government to decide upon the validity of the appointment of a person as a member of the Union Board by the District Magistrate, such a rule would have been ultra vires on the ground that it Would not be a rule coming within cl. (a) of sub-sec. (2) of sec. 101. Rule 37 docs not further the case. The time for appointment only is indicated there. It cannot also be said that the District Magistrate is the final authority in the matter of the eligibility of a person appointed by him as a member of the Board and that the appointment by him of a particular person is a decision by him that the latter is qualified to be appointed, for that view would in my judgment nullify the proviso to sub-sec. (5) of sec. 6 of the Act. 10. I hold accordingly that the Civil Court had jurisdiction to determine whether Defendant No. 3 of suit No. 268 of 1934 and the sole Defendant in suit No. 326 of 1934 had been validly appointed or not. That question depends upon the question as to whether the said Defendants ordinarily resided within the Taj pur and Shingti Unions respectively. Both the Courts below have answered the said question in the negative. 11. The decree against Defendant No. 3 in the first suit and the decree in the second suit passed by the Munsif must accordingly be restored. The Appellant in appeal No. 1516 must pay the costs to the Defendants Nos. 1 and 2 and will have the costs from Defendant No. 3 both of this Court and of the Court of appeal below. The Appellants in appeal No. 1537 must have costs of this Court and of the Court of appeal below from the Defendant. The Appellant in appeal No. 1516 must pay the costs to the Defendants Nos. 1 and 2 and will have the costs from Defendant No. 3 both of this Court and of the Court of appeal below. The Appellants in appeal No. 1537 must have costs of this Court and of the Court of appeal below from the Defendant. Leave to appeal prayed for is granted to the Respondents in, both the appeals.