Sailendra Prasad Talukdar, J. - (1.) The instant case arises out of an application under Section 227 of the Constitution of India. It is directed against the order dated 20th April, 2002 passed by the learned Judge 5th Court of Additional District Judge, Barasat, 24-Parganas, North in Title Suit No. 3 of 2000. The grievance of the petitioner may be capsulated in a few sentences as follows:- The election for the post of Councillor in Ward No. 19 of North Barrackpore Municipality was held on 28th May, 2000. The petitioner was one of the contesting candidates along with two others who were respondent Nos.1 and 5. The said Municipal election was held on 28th May, 2000 under the control and supervision of the Municipal Returning Officer, Barrackpore and District Municipal Election Officer, 24-Parganas (North). The petitioner was duly elected as Councillor of the said Municipality. The Assistant Municipal Returning Officer issued a Certificate of election in favour of the petitioner declaring him as an elected member of the said Municipality from Ward No. 19.
(2.) The Sub-Divisional Magistrate, Barrackpore, District 24-Parganas '(North) vide his notice dated 16th June, 2000 intimated the petitioner that the first meeting of the Board of Councillors of the North Barrackpore Municipality would be held on 29th June, 2000 at 1-00 p.m. at the office of the said Municipality and the petitioner was requested to attend the meeting for taking oath of affirmation of allegiance to the Constitution and to elect one of the members to act as President to preside over the aforesaid meeting for election of Chairman. The petitioner duly attended the said meeting and took oath of affirmation of allegiance. The respondent No. 1, however, filed a Title Suit being No. 3 of 2000 under Sections 75 and 76(b) of the West Bengal Municipal Act, 1994 challenging the declaration of the Assistant Municipal Returning Officer declaring the present petitioner as elected Councillor of Ward No. 19. In the said case the respondent No.1 sought before the learned Court an order declaring the election of opposite party No.1 as Councillor of Ward No. 19 as null and viod. In the said suit some other reliefs were also sought for. The said Title Suit No.3 of 2000 was contested by the present petitioner by filing written statement. The petitioner denied the material allegations made by the present respondent No.1. The petitioner clearly pointed out that he is an employee of Barrackpore Municipality and so he is eligible to be elected as Councillor of North Barrackpore Municipality. It had been clearly stated in the written statement that according to the clarification issued by the State Election Commission, West Bengal dated 24th April, 1995 an employee of a Municipality is quite eligible and legally entitled to be elected as Councillor in another municipality. It had also been stated that the bar imposed was applicable only when the employee of a municipality is elected as Councillor of the same Municipality. It had been further pointed that the present respondent No. 1 did not raise any objection about the candidature of the present petitioner at the time of filing nomination and only his defeat in the election led to his filing of the Title Suit as referred to earlier.
(3.) Heard learned Advocates for the petitioner as well as for the respondents. At the very outset it has been pointed out by the learned Advocate for the petitioner that the learned Additional District Judge, Barasat, District-24-Parganas (North) by passing the impugned judgment in Title Suit No. 3 of 2000 appears to have failed to appreciate the facts and circumstances of the case. Referring to Section 30 of the West Bengal Municipal Elections Act, 1994 it is submitted that a person shall not be eligible for election as a member if such person holds any office of profit under the municipality. There is no dispute as to the fact that the expression 'the' definitely suggests that it relates to Municipality in respect of which election is required to be held. In fact the learned Additional District Judge in his judgment and order dated 20th April, 2002 also held the same view. A controversy, however, arises as to the interpretation of Section 30(g) of the West Bengal Municipal Elections Act, 1994 (hereinafter referred to as the said Act). The said provision reads as follows:- " A person shall not be eligible for election as a Member if such person - JUDGEMENT_76_LAWS(CAL)7_2002.html (h) has been elected to or appointed under any Municipality or Panchayat or Darjeeling Gorkha Hill Council constituted under the Darjeeling Gorkha Hill Council Act, 1988.";