Bhabataran Roy v. Bhajahari Samanta — 1958 DIGILAW 266 (CAL)

JUDGMENT 1. This application under Article 227 of the Constitution is directed against an order passed by the Sub-Divisional Magistrate of Ghatal on the 29th of October, 1958 reversing the decision of the Circle Officer, Ghatal as Union Board Election Officer. In order to appreciate the contentions raised by the parties it is necessary to state certain facts. The petitioner before me Bhabataran Roy is a duly nominated candidate in the impending election of the members of a Union Board in Police Station Ghatal. 29th of September, 1958 was the last date for filing nomination papers in connection with that election. On the 13th of October, 1958 scrutiny was held by the Election Officer of all the nomination papers and on the same date the nomination of opposite party Bhajahari Samanta was rejected by him on the ground that he was a Government servant on that day being a Tahsildar. Against this decision of the Election Officer an appeal under Rule 11a of the Rules framed under the Bengal Village Self-Government Act of 1919 was preferred before the Sub-Divisional Magistrate on the 14th of October, 1958. On the same day the Appellate Officer asked the Sub-Divisional Land Reforms Officer to report if Bhajahari Samanta had submitted his resignation as a tahsildar and it had been accepted and if so, with effect from what date. On receipt of the report the Sub-Divisional Magistrate passed the following order on the 29th October, 1958: "appellant appears. Scrutiny was held on 13-10. 58. Seen report of the S. L. R. O, intimating that the resignation of the appellant from the post of the Tahasildar was accepted with effect from 6-10-58. This was probably not known to the E. O. Appeal allowed. His name should be included in list of qualified candidates. " 2. IT is against this order of the Sub-Divisional Magistrate that the present petitioner Bhabataran has filed the application under Article 227 of the Constitution. Various points have been canvassed before me by the respective parties. It has been urged on behalf of the petitioner that the Sub-Divisional Magistrate's order dated 29-10. 58 is vitiated by a fundamental error. It has been contended that the crucial date in this connection was not 13-10-58, namely, the date of scrutiny but 29-9-58 which was the last day for filing nomination papers and on which date nomination papers had been filed by both the parties. 58 is vitiated by a fundamental error. It has been contended that the crucial date in this connection was not 13-10-58, namely, the date of scrutiny but 29-9-58 which was the last day for filing nomination papers and on which date nomination papers had been filed by both the parties. It has been argued that the Sub-Divisional Magistrate was wrong in holding that the nomination paper filed by the opposite party was valid because his resignation had been accepted with effect from the 6th October, 1958, that is, prior to the date of scrutiny. That the material date in this connection is the date of nomination, and not the date of scrutiny, will be clear from the Bench decision of this Court in the case of Sk. Ahmed Hossain v. Aswini Kumar Paul (1) 57 C. W. N. 421. As the learned Advocate for the petitioner is right on this point, it is not necessary to go into the question whether the resignation of a Government servant can be accepted with a retrospective effect. 3. It is next argued on behalf of the petitioner that in the present case on the date of filing of nomination papers, that is, 29th September, 1958 opposite party Bhajahari Samanta was disqualified as a candidate because he was on that day a Government servant being a Tashildar. In this connection reliance has been placed upon Memo. No. 2078 (3) GE/2r-17/51 dated 20th July, 1957 from the Chief Secretary to the Commissioners of Divisions regarding eligibility of Government servants to seek election to local bodies and legislatures. The relevant portion of the Memo runs thus: "In super session of all previous orders on the subject noted above and in modification of sub-rule (4) of rule 23 of the Govt. Servants' Conduct Rules, it has been decided that no Govt. servant shall be permitted to seek election either to Local bodies or Legislatures. The Govt. Servants' Conduct Rules are being amended accordingly. " 4. My attention has also been drawn to another letter, namely letter No. 8430 (14) GR dated 14-6-56 from the Assistant Secretary, Board of Revenue. The relevant portion of that letter is quoted below: "sub:-Eligibility of Tashildars to contest an election. The under-signed is directed to state that Tashildars who are part-time Govt. servants and to whom the Govt. " 4. My attention has also been drawn to another letter, namely letter No. 8430 (14) GR dated 14-6-56 from the Assistant Secretary, Board of Revenue. The relevant portion of that letter is quoted below: "sub:-Eligibility of Tashildars to contest an election. The under-signed is directed to state that Tashildars who are part-time Govt. servants and to whom the Govt. Servants' Conduct Rules apply, should not be permitted to seek election either to Local bodies or the Legislatures. Government Order No. 2078 (3) G. E. dated 20-7-51 will be applicable to Tashildars. " Mr. Anil Chandra Sen has built up his argument on the strength of these Government orders. 5. It may be stated that there is no dispute that on the 29th September, 1950 opposite party Bhajahari Samanta was a Tashildar. Mr. Sen has argued that as in view of the Government orders referred to above on the material date, namely, 29-9-58 opposite party Bhajahari Samanta was disqualified from seeking election to the Union Board, the Election Officer on for the matter of that, the Appellate Officer, namely, the Sub-Divisional Magistrate, was bound to reject the nomination paper filed on behalf of the opposite party. On behalf of the opposite party, however, Mr. Burman contends that the above contention is not tenable. He argues first that in view of the Articles of Agreement between his client and the Government which have been shown to me the former is not a Government servant at all. Secondly, he has drawn my attention to the case of Md. Sarafatulla v. Surjya Kumar Mondal (2) 59 C. W. N. 652 wherein it has been held inter alia that the Government Servants' Conduct Rules, 1926 laid down the conditions of service of a Government servant and that they go further and create absolute incapacities. There are certain other observations in that judgment which are in support of Mr. Burman's contention that the Government servant concerned may lay himself open to disciplinary action by standing as a candidate Union Board election but there is no statutory bar disqualifying him for offering himself as a candidate. 6. Before proceeding further it may be mentioned that Mr. Burman did not challenge the proposition that the crucial date is the date of nomination and not the date of scrutiny. The third contention urged by Mr. 6. Before proceeding further it may be mentioned that Mr. Burman did not challenge the proposition that the crucial date is the date of nomination and not the date of scrutiny. The third contention urged by Mr. Burman is that what the Election Officer has got to do in scrutinising the nomination papers is contained in the four corners of Rule 11 of the Rules framed by Government for the election of members, Presidents and Vice-Presidents of the Union Boards. That Rule says that the Election Officer shall scrutinise all nomination papers. . . . with a view to ascertaining whether all the candidates are duly qualified under section (2) of section 7 of the Act and his decision on this point shall be final. It is contended, therefore by Mr. Burman that in view of this specific provision in the Rule all that the Election Officer has got to ascertain is whether the candidates are duly qualified under section 7 (2) of the Bengal Village Self-Government Act. That sub-section lays down that "every person, who is entitled to vote at an election of members of the Union Board and is resident within the Union, shall be entitled to be a member of the Union Board, if duly elected thereto. " So far as the qualifications of voters are concerned, they are provided for in section 7 (1). It is noticeable that there is nothing in that sub-section which lays down that Government servants as such are disqualified. Section 10 of the Act provides some additional disqualifications for certain category of persons from being members of Union Boards. Similarly, section 10a lays down that certain other persons shall not be eligible for election or appointment as members of a Union Board. What is noticeable is that so far as Rule 11 referred to above is concerned, it contains no reference either to section 10 or section 10a. That may be a lacuna in the Rule but the fact remains that that Rule mentions section 7 (2) only. Mr. Sen has drawn attention to section 12 (1) (c) which lays down that the District Board may remove any member of a Union Board from his office who has been declared by notification to be disqualified for employment in the public service. Mr. Sen has drawn attention to section 12 (1) (c) which lays down that the District Board may remove any member of a Union Board from his office who has been declared by notification to be disqualified for employment in the public service. His contention is that the word "may" in this section means "shall" and that it is a mandatory provision and not simply directory. It is in this connection that Mr. Sen drew my attention to the Government orders mentioned above. He has argued that there is no point in allowing a person to stand as a candidate in an election when he shall have to be removed from membership under the provisions of section 2. It is not necessary to express a final opinion now so far as this contention is concerned. After all it is to be noted that this is an application under Article 227 of the Constitution. The court has to proceed cautiously in applying this Article and it has to be resorted to only sparingly. It may be mentioned in this connection that the date fixed for the election is day after to-morrow. Reference may in this connection also be made to section 17b of the Bengal Village Self-Government Act which provides for election disputes. This section is couched in very wide terms Reference may in this connection be made to the case of Joy Chandra Shaw v. State of West Bengal (3), 61 C. W. N., 341 where it was held by a judge of this court, that "section 17b is attracted whether the dispute relates to an election which is complete or to one which is in progress and that the section is wide in its scope and it imposes no restriction either expressly or by implication. " 7. Various questions of a somewhat intricate nature have been raised by way of the application before me but we must not lose sight of the broad fact that Rule 11 of the Rules for the election of members, etc. is very limited in its scope, enjoining as it does the duty upon the Election Officer to ascertain whether all the candidates are duly qualified under sub-section (2) of section 7 of the Act. So far as the Rule, as it stands, goes clearly the petitioner has nothing to say against the validity of the nomination paper of the opposite party. So far as the Rule, as it stands, goes clearly the petitioner has nothing to say against the validity of the nomination paper of the opposite party. The question whether the Rules goes far enough or whether it ought to have been framed in a more comprehensive way so as to attract within its mischief sections 10. 10a, etc. is a matter with which the Election Officer need hardly concern himself at this preliminary stage. It may well be that this is a matter which can be canvassed under section 17b, though it is not necessary for me to express a final opinion on that point at this stage. I am of opinion, however, that in view of the limited scope of the present application under Article 227 of the Constitution 1 ought not to interfere if it is found, as it must be, in the circumstances of the case, that the nomination paper of the opposite party is not invalid under the provisions of section 7 (2 ). Several other points were canvassed before me but in view of what I have observed before, it is unnecessary to pronounce a definite decision thereon at this stage. 8. The result, therefore, is that I must hold that there is no compelling reason why I ought to interfere under Article 227 of the Constitution with the order passed by the Sub-Divisional Magistrate. The rule is discharged accordingly. No order is made as to costs.