Decided on February 20,1961



- (1.) THE petitioner in this case is an Advocate, and a qualified voter in Ward No. 2 of the Midnapore Municipality. In Ward No. 1 of the said Municipality, there are two seats for commissioners. At the last election for commissioners of the said Municipality, the petitioner filed his nomination paper from Ward No. 1. Two other persons also filed nomination papers. They are opposite parties Nos. 1 and 2 in this application. The opposite party No. 1 is a whole-time paid employee of the Kharagpore Municipality, the exact designation being the Secretary of the said Municipality. The petitioner objected to the nomination paper of opposite party No. 1 and this objection was rejected. Against this decision, the petitioner filed am appeal before the Additional District Magistrate of Midnapore under Rule 20 (1) of the Rules framed under the Bengal Municipal Act, 1932. The said appeal also was dismissed. Thereafter the petitioner has come up here.
(2.) A preliminary objection has been taken to the maintainability of this application on the ground that the petitioner has an alternative legal remedy against the said order under section 36 of the said Act. Section 36 is the relevant section for proceedings to set aside an election. If the validity of any election of a commissioner is brought into question, then such an election case may be instituted. It is argued that in this case the petitioner should have filed such an election case and should not have come up straight to this Court. Mr. Das pointed out that this matter is concluded by a Divisional Bench decision of this Court in nara Narayan Mondal v. Aghore Chandra Ganguly and another (1) 39 C. W. N. 971. It has been laid down there that if the person contesting the election is not objecting to the election in his own Ward but in some other Ward, then section 36 does not apply. With respect, I must not be taken to agree with this decision, but I find it to be binding upon me. That being so, this preliminary objection fails.
(3.) I now come to the merits of the case. The short point taken is that under the provisions of clause (e) of section 22 (1), the opposite party No. 1 was not eligible to be elected as a commissioner. That provision runs as follows :- "22 (1) A person shall not be eligible for election or appointment as a Commissioner if such person- (e) is a municipal officer or servant or holds any office of profit under the Commissioners;" The word "commissioner" is defined in sub-section 53 of section 3 as follows: ". . . . . . 'the Commissioners' means the persons for the time being appointed or elected to conduct the affairs of any municipality under this Act. ";

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