Shyamal Pal v. 1st Court of Addl. District Judge — 1985 DIGILAW 348 (CAL)

Judgment M.M. Dutt, J. In this application under Article 227 of the Constitution, the petitioner, Shyamal Pal, has challenged the order of the 1st Court of the Additional District Judge. Hoodgly dated May 28, 1985 setting aside the election of the petitioner to the office of Commissioner of Ward No. 15 of the Serampore Municipality held on May 21, 1988, under S.38 of the Bengal Municipal Act, 1932, hereinafter referred to as ‘the Act’ 2. The opposite party no. 2, Aloke Ranjan Banerjee, and the petitioner were the two contesting candidates in the election of Commissioner of Ward No. 15 of Serampore Municipality. The petitioner defeated the opposite party no.2 by 13 votes and was declared elected by the Presiding Officer of such election. Thereafter, within ten days of such declaration of the result of the election, the opposite party no. 2 made an application under S.36 of the Act before the District Judge challenging the validity of the election of the petitioner. The grounds for such challenge were as follows : (a) No copy of the list of contesting candidates was given to the opposite party no. 2: (b) there had been casting of false votes ; (c) the ink supposed to be indelible and put on the fingers of the voters was of a very inferior quality and could be easily erased : (d) due to false votes, there was at least one tender vote (e) in the ballot papers the name of the opposite party no.2 was wrongly printed as “Alok Ranjan Banerjee” instead of “Aloke Ranjan Benerjee” (f) the opposite party no.2 filed an application for recounting of votes and the presiding Officer said” It would b e done tomorrow” Instead it was found that at a late hour or in the early morning of June 1, 1981. The result of the election was published on May 31, 1981” 3. The learned Additional District Judge overruled the contentions of the opposite party no.2 as censured in the above grounds nos (a) to (d) and (f). So far as the ground no (e) is concerned, the learned Additional District Judge took the view that the result of the election could be said to have been materially affected by non-compliance with Rule 16 of the West Bengal Municipal Election Rules, 1975. hereinafter referred to as the Rules. So far as the ground no (e) is concerned, the learned Additional District Judge took the view that the result of the election could be said to have been materially affected by non-compliance with Rule 16 of the West Bengal Municipal Election Rules, 1975. hereinafter referred to as the Rules. In that view of the matter, the learned Additional District Judge set aside the election of the petitioner as Commissioner of Ward No. 15 of the Serampore Municipality. Hence this application by the petitioner. 4. Section 38 of the lays down the grounds for setting aside the election of a candidate to the office of Commissioner of a municipality. One of the grounds that is contained in clause (e) of S. 38(1) is that the result of election has been materially affected by any noncompliance with the Act or any rule made under the Act or by any mistake in the forms required or by any error, irregularity, or informality on the part of any officer charged with or carrying out any duty under the Act or rules made under the Act. It follows from S.38(1)(c) that a mere non-compliance with the Act or any rule made under the Act will not be sufficient for setting aside election of a candidate in addition, it must be proved that the result of the election has been materially affected for such noncompliance. In the petition for setting aside election, the petitioner has to plead non-compliance with any provision of the Act or any rule framed under the Act and also that such noncompliance has materially affected the result of the election. 5. In the instant case, it is not in dispute that there is no pleading by the opposite party no.2 in the election petition that the non-compliance with any provision of the Act or any rule made under the Act has materially affected the result of the election. In the absence of any pleading, we are afraid, the learned Additional District Judge was not justified in embarking upon the question whether the result of the election was materially affected or not. 6. The grievance of the opposite party no.2 is that in the ballot papers has mane has been wrongly printed as Alok Ranjan Banerjee instead of Aloke Ranjan Banerjee. 6. The grievance of the opposite party no.2 is that in the ballot papers has mane has been wrongly printed as Alok Ranjan Banerjee instead of Aloke Ranjan Banerjee. The further grievance of the opposite party no.2 is that in the final list of contesting candidates, his name has not been written in Bengali but in English in violation of Rule 16 of the Rules. Rule 16, inter alia, provides that the final list shall be prepared in Napali and English in the Hill sub-divisions of the District of Darjeeling and in Bengali and English in other areas. 7. Not only that there was no pleading that the noncompliance with the Act or the rules framed under the Act had materially affected the result of the election, the opposite party no.2 did not also adduce any evidence in that regard. The opposite party no..2 examined himself in support of his case. In the final list of contesting candidates (Ext. 5), the name of the opposite party no.2 was written as Alok Ranjan Banerjee and he was given a symbol of “Charkha”. The evidence of opposite party no.2 is that after receiving the list of contesting candidates, he made his election campaign with reference to his symbol “Charkha”. He did not the any written objection for the wrong mentioning of his name in Exhibit 5. He was not at all confused on seeing his name as typed in Exhibit 5. It is alleged by him that in English he always spells his name as “Aloke”, but in Ext. 5, his name has been typed as “Alok”. It has been pointed out by the learned Additional District Judge that the opposite party no.2 is not speaking the truth because he himself signed his name as “Alok” in the Nomination Papers, Exts. A and A/1, submitted by him. No independent witness has been examined by the opposite party no.2 to say that he was missed or confused by the wrong spelling of the name of the opposite party no.2 in Bengali in the ballot paper. It is elicited from the opposite party no.2 in cross-examination that no voter of the ward in question submitted any written objection of any of the Election. Agents of the opposite party no.2 to the effect that he was confused by the wrong spelling of the name of the opposite party no.2 in the ballot paper. It is elicited from the opposite party no.2 in cross-examination that no voter of the ward in question submitted any written objection of any of the Election. Agents of the opposite party no.2 to the effect that he was confused by the wrong spelling of the name of the opposite party no.2 in the ballot paper. The opposite party no.2 also did not submit any written objection to the Presiding Officer or to the Returning Officer or to anybody of the effect that his name had been wrongly printed as “Alok Ranjan Banerjee” in Bengali in the voters’ list instead of “Aloke Ranjan Banerjee”. It is also admitted by the opposite party no.2 that the election was contested party wise. The symbol “Charkha:” was printed in the ballot papers. 8. The learned Additional District Judge noted the above facts in his judgment. In spite of that, he took the view that the result of the election could be said to have been materially affected by the noncompliance with Rule 16 of the Rules. It has been already noticed that there is no pleading in the election petition of the effect that the result of the election has been materially affected by the noncompliance with Rule 16 or by the wrong mentioning of the name of the opposite party no.2 in the ballot papers or in the final list of contesting candidates (Ext. 5) It has also been noticed that the opposite party no.2 had not examined any independent witness to prove that the result of the election was materially affected. In the circumstances, the view that has been taken by the learned Additional District Judge is not at all justified. Indeed, in the absence of any pleading in the election petition, the learned Additional District Judge should not have embarked on the question whether the result of the election was materially affected or not. It may be stated at the risk of repetition that under S.38(1)(c) noncompliance with the Act or any rule made under the Act is not sufficient for setting aside the election of a candidates unless it is pleaded and proved that such noncompliance has materially affected the result of the election. As there is neither pleading nor proof, the finding of the learned Additional District Judge cannot be sustained. 9. Now we may consider the case of the opposite party no.2 for the recounting of votes. As there is neither pleading nor proof, the finding of the learned Additional District Judge cannot be sustained. 9. Now we may consider the case of the opposite party no.2 for the recounting of votes. It has been alleged in the election petition that the presiding Officer had not complied with Rule 36(b)(2) of the Rules. Under Rule 36(b)(1), after the announcement of the particulars recorded in the counting sheet has been made, a candidate or, in this absence, his election agent or his counting agent may apply in writing to the Presiding Officer for a recount of the votes either wholly or in part stating the grounds on which he demands such recount. Sub-rule(2) of Rule 36(b) provides, inter alia, that on such an application being made, the presiding Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto. Sub-rule(2) however, provides that every decision of the Presiding Officer in this regard shall be in writing and contain brief reasons there to and shall be final. It has been found by the learned Additional District Judge that the Presiding Officer did not comply with rule 39(b)(2) of the Rules. In our opinion, it was incumbent upon the Presiding Officer to decide the Application of the opposite party no.2 for recount of votes. The Presiding Officer has failed to discharge his statutory duty. Mr. Ganguly, Learned Advocate appearing on behalf of the petitioner has, in his usual fairness, submitted that there should have been a recount of the votes. In our opinion also, the Presiding Officer should have recounted the votes, as prayed for by the opposite party no.2. 10. After considering the facts and circumstances of the case, we set aside the order of the learned Additional District Judge and direct that there shall be a recount of votes of the petitioner and the opposite party no.2 in accordance with the Rule, within four weeks of the communication of this order to the Presiding Officer or to such other Officer as may be deputed for the purpose in accordance with las. The election of the petitioner will be subject to the result of the recounting of votes. The petitioner, however, shall not function as the Commissioner of the Municipality by virtue of the declaration of his result pending such recounting of votes. The election of the petitioner will be subject to the result of the recounting of votes. The petitioner, however, shall not function as the Commissioner of the Municipality by virtue of the declaration of his result pending such recounting of votes. The application is disposed of as above. There will be no order for costs. J.N. Choudhuri, J : I agree. Order set aside : direction given for recount of votes.