Decided on April 05,1961



- (1.) THE facts in this case are shortly as follows: this application relates to the last General Election held for electing the Commissioners of the Budge Budge Municipality. The Budge Budge Municipality is divided into 8 wards, consisting of 16 Municipal Commissioners. Ward No. 8 is a double-seated constituency. The last General Election of Commissioners under section 24 (3) of the Bengal Municipal Act, 1932 (hereinafter referred to as the "act") was held on the 31st March, 1959 in respect of all the wards. On the date above mentioned, the election of ward No. 8 failed. It may be mentioned that 7 candidates had stood for election and were duly nominated for ward No 8. Under section 26 of the said Act. if the electorate in any municipality fails within the prescribed time to elect the requisite number of Commissioners, a date shall be fixed by the District Magistrate for another election. In exercise of this power, and in accordance with the Rule 2 (1b) of the Rules framed under the said Act, which provides that such an order fixing the fresh election should be made at least 50 days before the election is held, the District Magistrate ordered on the 27th April, 1959 that a fresh election of Ward No. 8 should be held on the 28th June, 1959. The period intervening was 61 days, and as such, was in accordance with Rule 2 (1b ). The date of election was extended from time to time, and ultimately the second election was held on the 4th October, 1959 and the opposite parties Nos. 3 and 4 were duly elected. As the fresh election fell within the next financial year, the electoral roll had to be revised and was in fact revised. Rule 16 of the said Rules prescribes that for a fresh election under section 26, a fresh electoral roll must be prepared, if it is necessary under the Act and the Rules. The fresh election was held in accordance with the revised electoral roll. For this fresh election, the procedure adopted was that fresh nomination papers were called for, and had to be filed. Amongst others, Dr. Surendra Nath Mondal and Nishi Kanta Chakraborty who had already been elected as Commissioners for Wards Nos. 6 and 7 respectively, filed nomination papers as also Dr. Indu Bhusan Bose, who is a voter. The nomination papers of Dr. Surendra Nath Mondal and Nishi Kanta Chakravorty were rejected on the ground that they had already been elected as Commissioners. The nomination paper of Dr. Indu Bhusan Bose was rejected on the ground of his personal interest in the affairs of the municipality. The opposite parties Nos. 1 and 2 filed an election dispute in the court of the Subordinate Judge, Alipore, under section 36 of the said Act. By his order dated 13th August, 1960 the learned Subordinate Judge set aside the said election. A copy of his judgment is annexure "a" to the petition. The points to be decided in this application are practically the same as were the subject matter of the election case, and the judgment of the learned Subordinate Judge, and I shall refer to the same as and when necessary. This application is directed against the judgment of the learned Subordinate Judge. The points that arise for determination in this case are as follows.- (1) Is the fresh election held under section 26 a new election or a continuation of the election already held? (2) In the facts and circumstances of this case, was it necessary to have a revised electoral roll for the fresh election? (3) For the fresh election, was it competent to ask for fresh nominations to be filed? (4) Was the date of the fresh election properly fixed in accordance with the provisions of the Act and the Rules, particularly Rule 2 (1b)? (5) Had the District Magistrate power to extend the date when the fresh election should be held? (6) In such a fresh election, can a person who has already been elected as Commissioner from one ward stand for election for another ward and if selected, does Rule 40 apply to his case?
(2.) I shall now proceed to deal with the points. As regards the first point there can be no doubt that the fresh election held under section 26 is a continuation of the earlier election. That appears clear from the provision of section 26 itself. Although the words ' another election" and "second election" have been used, it is obvious that it is intended to complete the General Election as a whole. Actually, there can be only one General Election of all the wards for a particular term. For purposes of convenience it may be broken up into constituent parts, territorially by dividing the entire area into wards, and in point of time by fixing the date of election ward-wise. It cannot, however, be said that either territorially or in point of time, there is to be held more than one General Election. Where the electorate in any municipality fails, within the prescribed time, to elect the requisite numbers of Commissioners for a particular ward or wards, then a fresh election is held for such ward or wards or the whole municipality as the case may be, if the election fails as a whole. But such fresh election or elections is or are a continuation of the old one.
(3.) WITH regard to the second point, the matter is covered by authority. In Dr. Satish Chandra Bhattacharjee v. R. N. Bose and Ors. (1) A. I. R. (1953) Cal. 520, the very point arose for determination. In that case also, before the fresh election under section 26 could be held, the time had come for a revision of the rolls under the provisions of the Act and the Rules. The question arose as to whether, for the purpose of an election under section 26, it was necessary to revise the electoral roll. It was held that such a revision was necessary, and omission to revise the electoral roll makes the holding of such an election, contrary to law. The learned Judge pointed out that Rule 16 of the Rules provided in definite and unambiguous term, that before an election under section 26 or the other sections specified in Rule 16 was held, a revision of the electoral roll was necessary and must be made.;

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