Sinha, J. - (1.) The facts in this case are as follows: The petitioner is a resident of Baranagore, which is within the Jurisdiction of the Baranagore Municipality. For the purposes of the General election of the said municipality, fixed on 11-3-56, the final electoral Roll of the said Baranagore municipality was published under the Election Rules made under the Bengal Municipal Act, 1932 and the petitioner's name appears as a male voter in Ward No. 3. The Respondent No. 3, Amar Mazumdar is also a recorded voter in the same Ward. For the purposes of the said election, both the petitioner and the Respondent No. 3 filed their respective nomination papers with the Respondent No. 2, who is the Chairman of the Municipality. The nomination and registration of candidates standing in an election held under the Bengal Municipal Act, 1932, are governed by a set of rules framed by the Government of Bengal, under powers conferred by Section 44 of the said Act. Rule 17 lays down that not less than 45 days before the election day the Commissioners shall fix for the nomination of candidates, a date which shall not be less than 35 days before the election day. On or before the date of nomination, every candidate for election is to file his nomination paper in the prescribed form and in accordance with the prescribed formalities, with the Chairman. The Chairman then publishes a notice fixing the time and date of the scrutiny of the nomination paper, and on the date so fixed, scrutinises the nomination papers in the presence of the candidate or agent & must register those whose nomination papers are found valid. The Chairman then allocates the symbols, and his decision in this respect is final. The Chairman then prepares and publishes the list of candidates so registered. Under Rule 20, If any person who has filed a nomination paper disputes the right of any other candidate to be on such list then under Sub-rule (1), he may appeal to the Magistrate in writing within three days of the publication of such a list. The Magistrate shall make such order as to the Insertion of the name as "appears to him to be just". The list is accordingly amended by the Chairman, and the amended list is thereupon published. Under Sub- rule (3), "The order of the Magistrate shall be final".
(2.) In the present case, the Chairman held the scrutiny of nomination papers on the 10th February, 1956. The results were published on the 11th February and the petitioner's name was registered in the list of nominations so published. On or about the 14th February, 1956, the respondent No. 3, Amar Mazumdar preferred an appeal before the respondent No. 1, the Additional District Magistrate, 23-Parganas, against the inclusion of the petitioner's name in the list, on the ground that he was disqualified, under Section 22(1)(f) of the said Act. The Chairman was made respondent No. 2, in the said appeal which was numbered as Appeal Case No. 23 of 1956. The relevant provision of Section 22 is set out below: "22(1) A person shall not be eligible for election or appointment as a Commissioner if such person--(f) has, directly or indirectly, by himself or by his partner or employer or any employee, any share or interest in any contract or employment with, by, or on behalf of, the Commissioners".
(3.) In order to understand the decision in the appeal, it will be necessary to relate a few facts. The Petitioner's father, Matilall Maitra since deceased, carried on a business in Petrol and Motor accessories under the name and style of Messrs. Radha Motor Works, at 86/1 Barrackpore Trunk Road, Alambazar. Upon his death, the Standard Vacuum Oil Co. served a notice stopping supplies of Petrol. Matilal left him surviving four song, viz., the Petitioner Promode and his three brothers Kumudlall, Subodhlall and Sujanlall. On or about the 14th of April, 1950, the three brothers of the Petitioner entered into an agreement of Partnership, constituting the partnership firm of Messrs. Radha Motor Works. A copy of the Deed of Partnership is annexed to the petition and marked with the letter 'D', This shows that the old business was continued by the partnership, but the name of the petitioner was excluded therefrom. He is not shown to be a partner, in the Deed and has no share therein. But the brothers did not Separate. It is not denied that they have continued to live in a joint family and in joint mess. The joint properties, recorded in the name of Motllal Moitra and others still continue to be recorded In that name, the rates and taxes being paid by Kumudlal on behalf of all the brothers. The firm of Radha Motor Works supply petrol to the Municipality and also spare parts for motor vehicle. They also effect repairs. There are no written contracts and the system appears to be as follows: The sale of petrol is effected on the basis of printed credit memos which are supplied in advance by the firm. The Secretary of the Municipality signs the credit memos and petrol is supplied. Later on, bills are submitted with vouchers and periodical payments are made. Repairs and supply of spare parts are made by calling tenders. In case of emergency, spare parts are also obtained on credit memos. Average payment made during a year amounts to Rs. 24,000/- approximately.;