Debabrata Mookerjee, J.@mdashThis is a composite application under Article 227 of the Constitution and Section 115 of the CPC directed against a decision of the Subordinate Judge, Nadia, dated January 30, 1954, by which the election of Commissioners of Ward No. III of the Santipur Municipality held under the Bengal Municipal Act, 1932, was set aside.
2. The opposite party, Kali Kumar Mukherjee instituted proceedings on February 6, 1953 (being Election Suit No. 12 of 1953) in the court of the District Judge of Nadia for setting aside the election u/s 36 of the Bengal Municipal Act, 1932, or in the alternative for a scrutiny and computation of votes u/s 39 of the Act.
3. Ward No. III is a plural-commissioner constituency of the municipality with five seats to which the two Petitioners and opposite parties 2, 3 and 4 were elected at the general election held on January 28, 1953. The opposite party Kali Kumar Mukherjee was one of the candidates who had unsuccessfully contested the election. Various allegations were made in the plaint impugning the validity of the election. It was alleged that the final electoral roll had not been prepared according to law, that amendments had not been allowed in accordance with Rule 15 of the Election Rules, that adequate arrangements had not been made for recording of votes by pardanashin ladies, that several of the candidates suffered from want of qualification for being elected Commissioners, that corrupt practices had prevailed vitiating the election, and that the result of the election had been materially affected by improper acceptance of nominations of some of the successful candidates and as such the entire election was liable to be set aside. For purposes of this application it is only the allegation last mentioned that is relevant.
4. The present Petitioners along with the others whose election was called in question denied the allegations and maintained that the election had been validly and properly held. The learned Subordinate Judge to whom the proceedings had been transferred for disposal framed several issues in chiding the issue of improper acceptance of nominations of some of the successful candidates as vitiating the election.
5. At the trial evidence was led by the parties concerned and the learned Subordinate Judge rejected the prayer for scrutiny and recounting of votes but set aside the entire election by his decision, dated January 30, 1954, which is now being challenged before us.
6. This decision is based on the finding that some of the successful candidates where not qualified for offering themselves for election and that corrupt practices had been resorted to at the instance of some of them. The court below further found that by reason of improper acceptance of nominations of some of the successful candidates the entire election was liable to be set aside and it ordered accordingly.
7. It is to be observed that there were no allegations and consequently no findings as against the present Petitioners either on the score of absence of qualification or of corrupt practice or of improper acceptance of their nominations. The Petitioners are, therefore, affected by the order of the learned Subordinate Judge only because the entire election has been set aside.
8. Mr. Mitter on behalf of the Petitioners has contended that the order of the learned Subordinate Judge is unsustainable inasmuch as nothing was found or even alleged against them. He has argued that the court below misdirected itself by setting aside the entire election whereas it should have confined its decision to the cases of only those of the candidates whose election was in fact challenged and against whom the allegation of improper acceptance of nominations or of want of qualification or of corrupt practice had been established.
9. The question, therefore, is when in a plural-member constituency the election of some of the candidates is successfully challenged, is the election of those others against whom nothing has been alleged or found, affected? In other words, is the whole election in such circumstances liable to be set aside?
10. The answer to the question will depend largely upon the construction to be put on the language of Section 38 of the Bengal Municipal Act and some of the sections preceding it.
11. Section 36 of the Act deals with the question how and where proceedings to set aside an election may be originated. It provides that the validity of an election of a Commissioner may be brought in question by a qualified voter within a specified time. Section 37 deals with the procedure which the Judge has to follow in holding the inquiry, pursuant to an application made u/s 36. Then follows Section 38 of the Act, which is in these words:
If the Judge, after holding an inquiry u/s 37, is satisfied that-
(a) a candidate has committed any corrupt practice within the meaning of Section 29 for the purpose of the election, or
(b) the election has not been a free election by reason of the general employment of bribery or undue influence as defined in the Indian Election Offences and Inquiries Act, 1920, or by reason of any form of general intimidation, including any form of social boycott, or
(c) the result of election has been materially affected by any non-compliance with this Act or any rule made under this Act or by any mistake in the forms required thereby or by any error, irregularity, or informality on the part of any officer charged with or carrying out any duty under this Act or rules made under this Act, or
(d) the result of election has been materially affected by improper acceptance or refusal of candidate''s nomination.
he shall set aside the election of such candidate, if he has been elected, and if the election is set aside for any cause which is the result of acts of a candidate or his agents may declare that candidate to be disqualified for the purpose of such fresh election as may be held u/s 42.
12. Thus it is clear that the Judge may set aside an election after holding an inquiry in the manner indicated in Section 37 of the Act. The operative part of Section 38 lays down that the Judge upon proof of the existence of one or other of the grounds set out in Clause. (a), (b), (c) or (d) shall set aside the election of "such candidate" if he has been elected.
13. Mr. Mitter has argued that the words "such candidate" must, therefore, be a candidate whose case is covered by one or other of the four clauses set out in the section and unless the case of the candidate concerned is covered by one or other of these clauses, his election cannot be touched. In other words, the contention is that the Judge may set aside the election of a successful candidate only if it is found that the candidate concerned has been guilty of corrupt practice or his election has not been a free one by reason of the employment of bribery or undue influence or the result of his election has been materially affected by any error or informality or by reason of non-compliance with the Act or any rule made under it or if his nomination has been improperly accepted. The argument,: therefore, is that the words "such "candidate" can only have reference to the candidate who is hit by one or other of the four clauses referred to above.
14. If this contention prevails the order setting aside the entire election must necessarily be held bad. This contention, therefore, requires examination.
15. In my view the true meaning of the words "such candidate" occurring in'' Section 38 of the Act can only be found on a reference to the section taken as a whole and upon examination of the language of Section 36 of the Act. As I have already indicated Section 38 deals with the setting aside of election and sets out in its four clauses the grounds which when proved will entitle the Judge to set aside an election. That section has to be read in conjunction with Section 36 of the Act by which proceedings to set aside an election are originated. The opening words of Section 36 are instructive. They are when the "validity of any election of a Commissioner is "brought in question" by a person qualified to institute the proceedings within a specified time, the Judge will make an inquiry u/s 37; and if after such inquiry he is satisfied that one or other of the grounds mentioned in Clause (a) to (d) has been established he shall set aside the election of such candidate if he has been elected. It is thus clear that the words "such candidate" can have reference only to the Commissioner whose election is "brought in question. What is disputed in an application u/s 86 of the Act is the validity of election of a Commissioner and Section 38 merely gives power to the Judge to set aside the election on proof of existence of one or the other of the four grounds enumerated in Clause (a) to (d) of that section.
16. Mr. Mitter''s contention that the words "such candidate" occurring in Section 38 must be strictly construed as being the candidate whose case is covered by one or other of the four clauses of Section 38 is bound to result in an absurd situation, and the Legislature cannot possibly be convicted of such absurdity. Heading the clauses mentioned in Section 38 it will be seen that the limited construction put on'' the words "such candidate" gets completely foundered on Clause (c) and (d). It is quite intelligible that the Judge will set aside the election of a candidate if "such "candidate" is found guilty of corrupt practice Clause (a)); or if the election has not been a free election by reason of the employment of bribery or undue influence or by reason of any form of general intimidation including social boycott (Clause (b)). But Clause (c) and (d) appear to repel this limited meaning; Clause (c) provides that when the result of election has been materially affected by any non-compliance with the Act or any rule made under it or by any mistake in the form required thereby or by any error, irregularity or informality on the part of the officer charged with or carrying out any duty under the Act or rules made under it, the Judge will set aside the election. This obviously has nothing to do with the candidate; on the contrary it refers to the acts or omission of others. Similarly in Clause (d) where nomination has been refused there could be no question of the persons offering himself as a candidate and consequently there could be no question of his having been elected. Therefore, the words'' "such candidate" occurring in Section 38 cannot be construed narrowly in the way suggested and the four clauses of Section 38 must be held as only dealing with the statutory grounds upon which an election can be set aside.
17. It is an accepted canon of construction that a meaning which is consistent with the general purposes of the Act and serves to fulfil that purpose has to be accepted in preference to the one which leads to difficulties or ambiguities. The narrow construction suggested by. Mr. Mitter cannot be allowed to prevail since that defeats the object of these provisions, namely, a free and fair election.
18. It is an election that is brought in question u/s 36 of the Act, not the selection of a particular candidate. "Election" must refer to the entire process to be gone through in order to obtain the verdict of the electorate and "such candidate" roust mean the candidate whose election in the larger sense is brought in question.
19. There is yet another reason why the contention raised by Mr. Mitter must be negative. The candidate concerned is no doubt an important factor in the process; but he is by no means the only factor. The circumstances envisaged in the different grounds for setting aside an election point to that conclusion. Whilst Clause (a) of Section 38 refers to a candidate who is guilty of corrupt practice, Clause (b) may or may not have reference to the acts or conduct of the particular candidate whose election is in question. And Clause (c) quite obviously relates to acts and conduct of persons other than those of the candidate. Even if it be supposed that the ground relative to bribery or undue influnce or the prevalence of any form of general intimidation are. grounds affecting the conduct of the candidate, the other grounds, viz., those relating to non-compliance with the Act or any rule made under it or mistake in the forms required to be used or error or irregularity or informalities on the part of an officer charged with carrying out any duty under the Act or rules made under it materially affecting the result of the election, are grounds wholly extrinsic to the candidate or his agent. They must necessarily refer to acts or omissions of others; and so long as the failure on the part of officers to do their duty, their acts of omission or commission which result in materially affecting the election are recognised as grounds for setting aside an election, it is futile to argue that the words "such candidate" must mean only the delinquent candidate or that the power of the Judge to set aside an election is limited to "such candidate." The question before the Judge is substantially the question of fairness of the election; and the challenge to it may be founded on the failure of others as much as on the delinquency of the candidate himself. The criterion is a free and fair election and whatever derogates from it, in one or other of the several ways indicated in Section 38, will entail the consequence of invalidation. In this view, the candidate''s personal element recedes to the background and the importance of a free and fair election appears in the correct perspective. The statute thus repels the restricted meaning sought to be put upon the words "such candidate".
20. In the view, therefore, I take it must be held that the words "such candidate" refer to a candidate whose election is brought in question u/s 36 of the Act.
21. Mr. Mitter has next argued on general principles that the Petitioners not having been found guilty of any improper conduct or suffering from want of qualification their election could not with justice be set aside for no fault of their own. That argument proceeds on equitable grounds which perhaps might prevail in the absence of statutory provisions indicative of a contrary legislative intent. But when the intention of the legislature is implicit in the statute the duty of the court is plainly to give effect to it and not to neutralise it by seeking to enforce equities of doubtful value. It may indeed be unfortunate that candidates who are in no way guilty of improper conduct or against whom nothing has been alleged should suffer. But the injustice if any to the individual concerned is more than made up by the justice it secures to the electorate by enabling it to its will in a proper and effective manner. It would be a wrong approach to the question to emphasis unduly the personal element involved in an election. The real question is one of fairness and of freedom to the electors to express and register their will. In my view, an examination of the relevant provisions of the Bengal Municipal Act can only lead to the conclusion that an election may be set aside not merely upon the grounds of corrupt practice or other misconduct on the part of the candidate or his agent but also on the ground of want of fairness of the election proceedings for which persons other than the candidate may be responsible.
22. These considerations inevitably lead to the conclusion that the election has to be considered as one whole and cannot be viewed piecemeal. So regarded the election in a plural-member constituency has to be viewed as one entire process and can be set aside upon proof of one or other of the grounds mentioned in Section 38 of the Act.
23. It is not permissible to speculate how electoral preferences-would be expressed in a given combination of candidates in a plural-member constituency rather than in any other. Candidates in a particular combination might indeed be an important element in the choice. No useful purpose would be served by multiplying'' instances to show how electoral preferences might vary from, combination to combination.
24. Upon the question of the effect of invalidation of the election of a particular candidate in a plural-member constituency the phrase "result of election" occurring in Section 38 of the Act has an important bearing. The question is what is meant by the result of election. Does it mean merely the return of a candidate and nothing more? Or, it is a phrase of comprehensive import meaning the expression of the will or the decision of the electorate? The section requires that an election will be set aside if its result Las been "materially affected". In my view the narrow meaning of return of a particular candidate cannot be assigned to the phrase "result of election". The phrase must be taken in its comprehensive sense as an expression of the will or the decision of the electorate. I am fortified in the view I take by a decision of this Court in the case of Khan Saheb S.M. Solaimcm v. Noor Mahommed (1944) 48 C.W.N. 655 in which Sen, J. interpreted the phrase "result of election" occurring in Section 47 of the Calcutta Municipal Act in the comprehensive sense which I have just indicated.
25. That the entire election in a plural-member constituency is liable to be affected if the election of one of the candidates is called in question was the view expressed by McNair, J. in the case of Girish Chandra Chose, and Ors. v. Sudhir Chandra Roy Choudhury (1940) 45 C.W.N. 188. The learned Judge was considering the question of validity of an election under the Calcutta Municipal Act was a Ward from which two candidates were to be elected and one of the seats was reserved for a member of the Scheduled Caste. In that case the election of one of the councilors from the general constituency was called in question. The learned Judge observed that the constituency being a plural-councilor constituency all the candidates likely to be affected if the election was set aside should have been joined as parties to the election petition, and held that it was a fatal omission to leave out the other elected candidate. The petition failed on that ground. The reason which induced the decision is germane to the question before us. In a plural-member constituency, the learned Judge thought, if the challenge is successfully made to one of the candidates the result would be that the entire election of the constituency would have to be held afresh so that "the elector" might have an opportunity of deciding who were the two councilors whom they wish to represent them and the way ''''which they would give their votes". That was of course decision under the Calcutta Municipal Act of 1923, Section 46 on which is similar in intent and import to Sections 36 and 38 of the Bengal Municipal Act. In reaching this conclusion McNai J'', relied upon a Bench decision of this Court Rathish Chandraa Munshi v. Amulya Charan Ghatak (1930) 34 C.W.N. 741 : ILR Cal. 87 to which I shall present refer.
26. Mr. Mitter, however, relied upon a decision of this Court the case of
27. It must, therefore, be held that the decision in the case of Sk. Ahmed v. Aswini Kumar (4) is no authority for the proposition that when the election of a particular candidate is brought in question under the Bengal Municipal Act in a plural-member constituency the election of the other non-delinquent candidate remains unaffected in all circumstances.
28. In my view, the decision of Suhrawardy and Costello, JJ. in the case of Rathish Chandra Munshi v. Amulya Charan Ghatak (3) still holds the field and continues to be a binding authority for the proposition that when the election of one of two or more candidates jointly elected from a constituency is set aside, the whole election must be set aside. It is true that this decision was rendered in 1930 under the Bengal Municipal Act (Act III of 1884) in which there were no provisions corresponding to Sections 36, 37 and 38 of the Act of 1932 with which we are concerned. But the learned Judges rested their decision on general principles governing joint election. The Act of...1932 contains no provisions which might be said to render the decision obsolete or in any way detract from the value of these observations made by Suhrawardy, J. in that case-
I gave my anxious consideration to this matter, because I find that Defendant No. 2 is not guilty of any omission or commission and has been penalised for the irregularity committed by Defendant No. 1. But it seems to me that an order to be passed in a joint election must be based on some principles. There is no doubt that if the election of Defendant No. 1 alone is set aside there will be one vacancy in the constituency. But the intention of the legislature is that two persons out of the total number of candidates should be elected from a particular ward at one election. It did not contemplate that an election may be held piecemeal. Besides if in this case the Magistrate or the Chairman had refused to accept the nomination of Defendant No. 1 as they should have done, there would have been a fight between the three other candidates and it is difficult to say how the votes that were cast in favour of Defendant No. 1 would have been divided among them. If a fresh election is held in place of Defendant No. 1 only, the voters who had voted for him will vote for one candidate only though under the law they are entitled to vote for two. On the whole I think that in fairness to the constituency and the other candidates it will be a proper order to pass in this case that the entire election should be set aside and a fresh election held, if necessary.
30. I respectfully agree and hold that far from there being anything in the Act of 1932 which might render the decision in Rathis Munshi''s ease obsolete there are distinct indications in the enactment confirming it.
31. It remains to consider if a decision given by a Judge u/s 38 of the Bengal Municipal Act can be revised by this Court u/s 115 of the CPC or is liable to be challenged by invoking the Court''s power of superintendence under Article 227 of the Constitution.
32. In the case of
33. But the position is different in so far as this application seeks to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution. Despite the provisions of Sections 39B and 43 of the Bengal Municipal Act which bar the exercise of revisional powers, this Court possesses the power of judicial superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This was held by the Supreme Court in the case of Waryam Singh v. Amarnath (1954) S.C.A. 334 which approvingly referred to a decision of this Court to the effect that the power conferred by Article 227 is to be exercised in appropriate cases sparingly and not for correcting mere errors but to keep tribunals and subordinate courts within the bounds of their authority. The present application is, therefore, disposed of under Article 227 and I am not prepared to say that the proceedings and the order of the learned Subordinate Judge under challenge are such as in way to call for interference by this Court in the exercise of its extraordinary jurisdiction.
34. I would, therefore, discharge this Rule and affirm the decision of the learned Subordinate Judge setting aside the entire election of Ward No. Ill of Santipur Municipality. There will be no order for costs in this Court.
Das Gupta, J.
35. I agree.
