JUDGMENT
P.N. Mookerjee, J.
1. This Rule was taken out by the petitioner in connection with the ensuing Municipal election of the Bally Municipality, or to be more specific, of Ward No. III of that Municipality.
2. The election is being held under the Bengal Municipal Act, hereinafter referred to also, in some places, as, simply, the Act. The petitioner who has been registered as Voter No. 1012 of the said Bally Municipality, Ward No. III, in the finally published Electoral Roll, filed his nomination paper duly with the Chairman of the Municipality as required by law (Vide Rule 17(1) of the Election Rules, made under Section 44 of the Bengal Municipal Act, hereinafter referred to as the Election Rules). The date of the general election of the Municipality was fixed by an appropriate notification under Rule 2 (Vide Sub-rules (1) and (2)) of the above Election Rules and it is due to be held on February 14, 1960. On December 28, 1959, the last date for the filing of nomination papers was fixed (vide Rule 17(1)) as January 7, 1960. The petitioner’s nomination paper was duly filed within the said fixed date. On January 14, 1960, which was the date of scrutiny (Vide Rule 17 (3)), the petitioner’s nomination paper, at the scrutiny, held under Rule 17(4)(a), was rejected by the opposite party No. 2 (who had been appointed by the local Government, under Rule 46 of the Election Rules, to “perform all the duties, assigned to the Chairman and the Commissioners at a meeting”, for the conduct of the above Election and who will be referred to hereinafter as the Election Officer) upon the ground that he (the petitioner) was disqualified to stand as a candidate for the aforesaid Municipal Election under Section 22 (1)(g) of the Bengal Municipal Act, he having been in arrears of rates for the requisite period of three months, as mentioned in the said section, in respect of holding No. 8 S. C. Chatterjee Street, Ward No. III of the said Bally Municipality.
3. On January 16, 1960, the list of candidates was published by the Election Officer, acting as the Chairman for the purpose, under Rule 17(5) of the Election Rules, that is, as required under the statute (the Bengal Municipal Act), read with the relevant Rule or Rules. In this list, the petitioner’s name was not included, presumably because or on account of his (petitioner’s) nomination paper having been rejected as aforesaid.
4. On January 18, 1960, the petitioner appealed to the District Magistrate in writing under Rule 20(1) of the Election Rules and, on January 20, 1960, the said appeal was dismissed by the learned Additional District Magistrate who eventually heard and dealt with the same. Against this appellate order, the present Rule was obtained by the petitioner on January 27, 1960, on the ground, inter alia, that the rejection of his nomination paper, as aforesaid, was improper, illegal and invalid and that his appeal before the District Magistrate had not been properly heard according to law or properly disposed of. The petitioner alleges that, by reason of the above dismissal of his appeal and rejection of his nomination paper, as aforesaid, he has been put to serious and irreparable loss and injury inasmuch as, if the said decision and order stood, he would not be able to contest the ensuing election in question.
5. The Rule has been opposed on behalf of the Municipality and also on behalf of the Election Officer, who are the opposite parties before us, and both the said opposite parties have supported the dismissal of the petitioner’s appeal, as aforesaid, and the rejection of his nomination paper, as having been made on valid grounds. Strictly speaking, the instant Rule is concerned only with the above appellate order of the learned Additional District Magistrate and, if that order be good on the merits or is otherwise immune from challenge in this Rule or not liable to be interfered with under Article 227 of the Constitution, the present Rule must fail and the disputed election of Ward No. III should be allowed to proceed without the petitioner being included as one of the candidates. In these circumstances, apart from a contest on the merits, the opposite parties have also relied upon a preliminary objection, touching the maintainability of the present application under Article 227 of the Constitution, and they have strongly urged against the applicability of the said Article to matters like the present and to the exercise, at any rate, of the discretionary powers under that Article in favour of the petitioner in the facts and circumstances of the instant case before us. The points raised are of great public and private importance and also of immense practical consequence and they are of some complexity and abiding difficulty too, which cannot be wholly and satisfactorily met by any view on the same.
6. To appreciate the controversy between the parties, it is necessary to state some other facts which may be briefly put as follows:
7. The petitioner, along with his brothers, were co-owners of two holdings, Nos. 8 and 19, S. C. Chatterjee Street, Ward No. III of the Bally Municipality. This holding No. 8, which, admittedly, as aforesaid, belong to the petitioner and his said brother co-sharers, appears to have been leased out, in or about the year 1952, to two persons, by name, Sambhu Kahar and Chunilal Shaw under a registered lease, which entitles the said lessees to build or erect structures upon the said demised or lease-hold land. In the said document of lease, there is also a stipulation that the total amount of Municipal rates in regard to the demised holding would be paid by the aforesaid lessees. The above lessees appear to have constructed certain structures on the said demised or lease-hold land, as it appears from the Municipal Assessment Register, which has been produced in this case and where the said structures are described in some detail. It appears also from the said Assessment Register that the land and structures aforesaid were treated by the Commissioners (Municipality) as a single holding under the Bengal Municipal Act (Vide Section 140(1)) and the rates upon them were assessed accordingly. In the said Assessment Register under the column “Assessee” the petitioner and his brothers are shown above the lessees Sambhu Kahar and Chunilal Shaw who are specifically mentioned as “Lessees”.
8. The case of the objector, on whose objection the petitioner’s nomination paper was rejected as aforesaid, was that the petitioner was in arrears in payment of Municipal rates for the
requisite period of three months, as mentioned in Section 22(1) (g) of the Act, in respect of the above holding No. 8. The petitioner’s contention, on the other hand, was that, for the rates of the said holding, the petitioner had no liability and, accordingly, he could not be considered to be in arrears, so as to be disqualified under the aforesaid relevant Section 22(1) (g) Of the Bengal Municipal Act.
9. On the materials before the Court, there can be no dispute that the above holding is in arrears, but the question that has been raised,–and which falls for and requires decision in this Rule upon the merits,–is whether the petitioner is liable for the rates of the said holding in circumstances, which have been detailed above, in view of Section 140(2) of the Bengal Municipal Act, that is, liable in the sense of incurring the liability, or coming within the description, of being in arrears in payment of rates and, if he is not so liable under the law, whether he can be held disqualified under Section 22(1) (g) of the. Act for or on account of non-payment of rates of the said holding. The opposite parties have contended that, notwithstanding Section 140(2) of the Act, the petitioner also would be liable for the rates of the above holding No. 8 and they contend that both the lessor (owner of the land) and the lessee (owner of the house or structures) would be so liable, subject to apportionment as between them, as contemplated by the said section.
10. The point for decision, so far as the merits are concerned, is this: whether, under Section 140(2) of the Bengal Municipal Act, the lessees alone in the present case or the lessors also along with them would be liable for the rates of the aforesaid holding.
11. On the materials on record and having regard to the terms of the lease, which appears to have been produced before the learned Additional District Magistrate and which has also been produced before us, there can be no doubt that the lessees had the right to build or erect structures upon the demised land. It also appears from the affidavits before us that the structures in the disputed holding were erected by the said lessees. The structures, again, would clearly answer the description of “house”, as given in the definition Section 3, Clause (22), of the Act, under which “house” includes “hut” inasmuch as “hut” is defined in Clause (24) of the said Section 3 in terms which would obviously cover the structures, as described in the Assessment Register, in the disputed holding No. 8. Clearly, then, the position is that, On the land of the aforesaid holding, there stands a “house” which belongs to the lessees Sambhu Kahar and Chunilal Shaw. In the circumstances, the only question that arises on the merits is whether, for the above house and land, which appear, in this case, to have been treated and assessed as a single holding by the Municipality (Vide Section 140(i) of the Act), the lessees alone would be liable to the Municipality, or whether the lessors, that is, the owners of the land, also be liable, so as to fall within the mischief of the disqualifying phrase “in arrears in payment of rates” as used in Section 22(1) (g) of the Act. We shall consider this aspect of the matter at a later stage, as
we deem it necessary, proper and convenient to
deal with the preliminary objection first,–at
least, in its major aspect.
12. The aforesaid preliminary objection is, in the main, founded upon the decision of the Supreme Court in the case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency , which is cited as the root authority on the point. In substance, the objection is that, to an election proceeding or on matters, connected therewith law does not permit two attacks at two different stages, namely, one at the pre-election or pre-polling stage and the other at the post-election or post-polling stage, and that, under the law, it is the post-election attack which alone is available, where, at least, such attack is provided and recognised by law. In the Bengal Municipal Act, so argue, the opposite parties, a post-election attack is provided in Sections 36 to 39B and, for a matter like the present) which is a part of the election or the process of election, no other attack is, accordingly, permissible in law.
13. The case before the Supreme Court was one under the Representation of the People Act, but the same principle appears to have been accepted, in three decisions of this Court, as applicable to elections under the Bengal Municipal Act and the Bengal Village Self-Government Act in the cases of Narayan Chandra v. District Magistrate, Hoogly ; Promode Lal Moitra v. Additional District Magistrate and Joy Chandra Shaw v. State of West Bengal, 61 Cal WN 341. Of these, again, the most exhaustive on the point is the decision in Promode Lal’s case , (supra) where Sinha, J., gave or purported to give a useful summary of the broad features of the entire law of elections in the light of the various authorities on the point. It is to be noticed, however, that, the two cases before Sinha, J., in and , supra, came up for decision after the elections in question had actually been held. The matter, therefore, was being dealt with there at the post-election stage and the observations of the learned Judge with regard to the pre-election stage would be, strictly speaking, in the nature of obiter dicta, though certainly entitled to the highest respect.
14. On behalf of the petitioner, reliance was placed on two decision of the Madhya Pradesh High Court, which were cases of Municipal election, viz., Basantilal v. Nirwachan Padadhikari and Gangadhar v. Premchand , where the matter was dealt with at the pre-election or pre-polling stage and in which the Supreme Court supra, was cited and distinguished. This distinction does not appear to have been noticed or made in the three cases of this Court, to which reference has been made above, possibly because this aspect did not require consideration there, as the matter was being dealt with in those casas at the post-election stage and the point, so far as this Court is concerned, still remains, practically speaking, res integra, or, at any rate, fully
open for consideration, whether the above distinction is or can be justified.
15. Having, now, fully considered the matter in the light of die aforesaid authorities and on statute and principle, we are inclined to hold that the view, taken by the learned Madhya Pradesh Judges, is correct and the distinction, made and relied upon by them, is quite a valid distinction and it seems to us that, at least, in regard to elections under the Bengal Municipal Act, Ponnuswami’s case, AIR 1952 SC 84 (supra), is distinguishable, having regard, inter alia, to the express provision of an appeal, as provided in Rule 20 of the Election Rules and a pre-election attack, also, in case of an improper rejection of a nomination paper, should be held to be maintainable. The reason for this view is to be found in the said Rule 20 (1) itself which expressly provides for an appeal to the District Magistrate. It is true, as pointed out by the Supreme Court, that election is One continuous process and, where, as, in the Representation of the People Act, the Legislature provides for no break by way of an appeal, or otherwise, at an intermediate stage,–but rather, provides against it,–the process should be allowed to be carried through without any interruption. This is, particularly, true of Parliamentary elections or elections under the Representation of the People Act, where, as, in the case of elections to the State Legislatures also, even the extraordinary powers and jurisdiction of the High Court and of the Supreme Court too, under the relevant Constitutional Articles (Articles 226, 227 and 32) appear to have been taken away and excluded by the admittedly valid non obstante clause, as enacted in Article 329(b) of the Constitution, and appropriate election legislations, as indicated therein. In the case before the Supreme Court, which, as we have said above, was one under the Representation of the People Act, Article 329(b) of the Constitution was directly attracted and the statute had to be read along with and in the light and context of the said non obstante clause, as enacted in the said Article, namely, “notwithstanding anything in this Constitution……….” and, under the express
terms of that Article, a parliamentary election or an election to the State Legislature could not be called in question except by an election petition under the appropriate law. That, obviously, in the light of Section 80 of the Representation of the People Act and corresponding state legislations, ousted the jurisdiction of the High Court and of the Supreme Court also in regard i inter alia to their extraordinary constitutional powers in the matter of Parliamentary and State Legislature elections. The position however, is not the same in regard to an election under the Bengal Municipal Act. There is no such restrictive provision applicable to such cases, and, moreover, the Act itself, under the Election Rules, provides distinctly for an appeal to the District Magistrate at a pre-election or pre-polling stage against inter alia improper rejection of a nomination paper and this provision for an appeal, although the Rule purports to make the decision of the District Magistrate, that is, of the appellate authority, final, has, on established authorities, the effect of
attracting the power of this Court under Article 227 of the Constitution (Vide, in this connection supra, vide also Kanglu Baula Katwal v. Chief Executive Officer, Janpad Sabha, Durg, (S) AIR 1955 Nag 49 (FB), and S.K. Sawday v. N. Singh Roy, AIR 1946 Cal 206), which, by no means, has been or can be said to be excluded by the Act in question or by any other law whatsoever.
16. It is thus a case where the limitation which was before their Lordships of the Supreme Court in Ponnuswami’s case is not present and this Court’s extraordinary power under Article 227 of the Constitution remains unaffected even in the matter of interference at a pre-election or pre-polling stage in an election like the present. The only question, then, that arises, so far as this part of the case is concerned, is whether, in the instant case, before us, the discretionary power under the said Article should be exercised in favour of the petitioner. This we shall discuss in all its details after we have dealt with the petitioner’s case on the merits, but we may just indicate here that, In the facts and circumstances of this case, If the petitioner succeeds in making out a case- on the merits, the exercise of discretion in his favour should not be refused.
17. Corning to the merits now. it is to be seen at once that, under the express terms of Section 140 of the Act, the position in regard to liability for the rates of the disputed holding No. 8 would, prima facie, favour the petitioner. Sub-section (1) of thc above section (Section 140) provides as follows:
“(1) If any house belongs to one owner and (the land on which it stands as also the adjacent Sand, if any, usually Occupied therewith, belongs to another, the Commissioners may treat such house and land as a single holding and assess them accordingly.”
and Sub-section (2) runs thus:
”The total amount of the rate or rates shall be payable by the owner of the house who shall thereafter be entitled to deduct from the rent which he pays for the land such proportion of the rate or rates, so paid by him, as is equal to the proportion which such rent bears to the annual value of the holding.”
18. It is not necessary, for our present purpose, to refer to Sub-section (3) of the section, which contemplates cases of disputes between, presumably, the house-owner and the land-owner, as, admittedly, there is no dispute, in this case, between the lessees, the ‘owner of the house’, and the lessors, the ‘owner of the land.’
19. On facts, already found by us, the house, standing on the land of the disputed holding, belongs to the lessees, Sambhti Kahar and Chunilal Shaw, and the house and the land have been treated by the Municipality and assessed to rates as a single holding. In this context, under Sub-section (2), the liability for the total amount of the rates of the holding, comprising the land and the house, is on the lessees, or “the owner of the house,” and it ig only after they have made the payment that they will be entitled to deduct from the rent which they pay for the land, such.
proportion of the rate or rates, so paid by them as is equal to the proportion which such rent bears to the annual value of the holding. To that extent, undoubtedly,–but in that sense only,–there is some liability of the lessors (owner of the land) but that liability, so far as the holding or the rates thereof are concerned, is really of an indirect nature and is, strictly speaking, a liability,–partaking of the nature of a liability for contribution,–to the lessees and the lessees alone: It is not a liability to the Municipality, to which alone the rates or taxes under, the Act are due and payable,–at any rate, for making a person “in arrears in payment of rates or taxes” for purposes of Section 22 (1)(g) and, even if the above liability for payment to the lessees be held to be liability for payment of rates, such liability of the petitioner would arise only ‘after the lessees have made the payment. Admittedly, in this case, such payment has not been made and, once made, the rates would no longer be due or outstanding or in arrear. In no view, then, would the petitioner come within the mischief of the said Section 22 (1)(g) and no disqualification under that section does, in any view, attach to him. The Municipality cannot hold the owner of the land liable for the rates, or any portion thereof, where, as, in the present case, the defaulting holding is a single holding, as made and treated by them, under Section 140 (1) of the Act, comprising, as mentioned therein, house and land, belonging to two different owners, and the two (house and land) have been assessed together as such single holding.
20. Indeed, it sufficiently appears from the Act itself that Section 140,–or, more precisely, Sub-section (2) thereof,–is one of the intended exceptions to the general charging section (Section 132) under the latter’s opening words “except as otherwise provided by the Act.” It is thus an exception to the general scheme of liability for (holding) rates, namely, liability of the owner, including the owner of the land, forming part of the holding, as envisaged in the said charging section (Section 132) itself, and, under the express terms of the section (section 140 (2)), the liability for (holding) rates in a case, coming under it. that is, in respect of a holding, comprising house and land, belonging to two different owners but treated as a single by the Municipality and assessed to raies accordingly, would be on the owner of the house as distinguished from the owner of the land subject only to the former’s right of contribution against the latter and the latter’s corresponding liability to the former as spoken, of earlier herein.
21. In the premises neither Section 132 nor Section 3(38) nor Section 144, to which reference was made by Mr. Banerjee during argument, would assist his client and the position would not be effected either by the fact that the petitioner and his co-sharer brothers (who are the owners of the land) were recorded above the lessees (owner of ‘the house) in the column of “assessee” in the Municipal Assessment Register, even in the light of Sections 134, 136 and 138, which were cited in that connection, particularly when the only en-(tries in the said Assessment Register which arc conclusive under the statute (vide Section 139) do not
include,–and that, indeed is very significant,–the entry of the name of the assessee, which again, is not an entry prescribed by the relevant Seo. 136 but, possibly, a substitute for the statutory entry of the name of the owner (Vide Section 136 (e)).
22. Section 167 also, to which our pointed attention was drawn on behalf of the opposite parties, does not make any material difference, as, apart from the fact, that it really prescribes only a mode of recovery and is not a charging section, it merely makes the rates, though payable by the house-owner, vis-a-vis the owner of the land, in a case like the present, a charge on the holding it is not a charging section and does not impose or purport to impose any liability on the owner of the land to pay the rates, not otherwise payable by him, but it only makes the same realisable from the entire holding (land and house) by way of a charge. At the worst, the holding (including the land) as distinguished from the owner of the land, may be liable for the rates and liable to be sold, as aforesaid for realisation of the same. Such instances arc not uncommon in law and Section 167, may well be read as having been enacted to protect the Municipality’s interest without, in any way, affecting Section 140 (2). To read it otherwise and to hold that it implies, or involves and indirectly imposes a liability on the owner of the land for rates of the holding (house and land), falling under Section 140, Sub-sections (1) and (2), would raise a conflict with the latter Sub-section, which has to be and should be avoided in interpreting the statute.
23. Clearly then, in the above context, the petitioner, as a co-owner of the land and as one of the lessors, would not be liable for the rates of the disputed holding, namely, holding No. 8. S.C. Chatterjee Street, Ward No. III, Bally Municipality, and he cannot, accordingly, be held or deemed to be or to have been in arrears in payment of the said rates. On the merits, therefore, the petitioner is entitled to succeed, provided there is no bar, in the fact of this ease, to the exercise of our pouters and discretion under Art 227 of the Constitution in his (petitioner’s) favour and provided, further, that the order or decision of the learned Additional District Magistrate is held revisable under the said Article. To this aspect of the matter, we shall now turn at once.
24. It has been contended before us on behalf of the opposite parties, and, in particular, by Mr. Majumdar, that, in view of the decision of the Supreme Court in the case of Commissioner of Hills Division and Appeals Assam v. Banurarm Pagu , this Court’s power of interference under Article 227 of the Constitution is of an extremely limited character and, within the limits of that power, thc present case would not fall or come in for interference. Mr. Majumdar has contended,–and he has been supported in this respect by Mr. Banerjee,—that, on the above authority of the Supreme Court, which follows and affirms an earlier decision of the same Court on the point, namely, Waryam Singh v. Amarnath , the power of the
High Court, that is, its power of superintendence, under Article 227 of the Constitution is “to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts (tribunals) within the bounds of their authority and not for correcting mere errors”, or, as put by their Lordships in another form “under Article 227 of the Constitution the power of Superintendence is limited to seeing that the (inferior) tribunal functions within the limits of its authority.” That, indeed, is true. But it is true also,–and that, certainly, cannot be overlooked,–that, in Waryam Singh’s case, their Lordships of the Supreme Court were expressly approving–and, as a matter of fact, quoting, in substance, the language of–the decision of this Court (per Harries, C. J.) in the case of Dalmia Jain Airways Ltd- v. Sukumar Mukherjee (SB), which purported to define the powers of the High Court under Article 227 of the Constitution in the following terms:
“In general words, the High Court’s power of Superintendence is a power to keep subordinate courts (tribunals) within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner.”
25. The language, indeed, was borrowed by Harries, C. J. from the observations of Rankin, C. J., who applied it much earlier (vide Manmatha Nath v. Emperor to describe the powers of this Court under Section 107 of the Government of India Act 1915, which was equated in this respect to Section 15 of the Charter or the High Courts Act. 1861, and to which, as pointed out by the Supreme Court in Waryam Singh’s case, supra, Article 227 of the Constitution is substantially similar and of which it is a material reproduction “except that the power of superintendence has been extended by the Article also to tribunals.” the subject courts and tribunals being, of course, within the territory, in relation to which the particular High Court exercises jurisdiction . About a year after the decision in Dalmia Jain Airways’ case (SB), a similar view of Article 227 was expressed by this Court in the case of Haripada Dutta v. Ananta Mondal , though in somewhat different but detailed language, which finds ample support and justification, from the recent observations of the Supreme Court in its latest pronouncement in the case of Satyanarayan Laxminarayan v. Mallikarjun Bhavanappa , which show that in appropriate cases, the Article may be employed to correct, at least, errors of jurisdiction, to wit, assumption of excessive jurisdiction or illegal or irregular exercise of it or refusal or failure to exercise the same,–to put the matter at Its lowest,–and it would certainly cover cases of non-exercise of jurisdiction as much as cases of excessive exercise of jurisdiction, the one, pointing to the lower limit, and the other to the higher, of the phrase “keeping within the bounds of authority” as used in the decisions cited. That view also follows from the explanatory statement, appended by Rankin, C. J. and Harries, C. J. to
the phrase in question, to the effect that the exercise of the power of supervision “to keep the inferior tribunals within the bounds of their authority” would be “to nee that they do what their duty requires and that they do it in a legal manner.”
26 Having indicated above the scope and object of Article 227 of the Constitution, let us see now how the instant case stands in relation to it. The record shows that the petitioner’s nomination paper was rejected first by the Election Officer on account of his alleged disqualification under Section 22 (1)(g) of the Act. It seems to us, however, that, so far as this particular rejection is concerned, it was wholly without jurisdiction. In view of the decision of this Court in the case of Ahmed Hossain v. Aswini Kumar , the Election Officer, in the present case, (who, in the aforesaid matter, was merely performing the functions, or, discharging the duties of the Chairman under Rule 17, Sub-rules (3) and 4 (a) had no jurisdiction or authority to reject the petitioner’s nomination paper on the above ground, although, it is quite true, that the learned District Magistrate, on appeal,–or, as here, the learned Additional District Magistrate who heard the petitioner’s appeal,–had, under Rule 20 (1) the requisite power and authority in that behalf. We are merely pointing this out for the purpose of emphasising that the petitioner’s nomination paper should have been accepted by the Election Officer, and, if any person or persons had felt aggrieved by such acceptance, he or they might have appealed to the District Magistrate under Rule 20 (1). The resulting difference may well have been of much great practical importance, although, in view of the fact that, under the self-same decision , the District Magistrate,–or the Additional District Magistrate, as in this case,–sitting as the appellate authority, had power to reject the petitioner’s nomination paper on the ground of disqualification under Section 22 (1)(g) of the Act, it world not have been in the ultimate analysis, a matter of substance. Not much, therefore, turns upon the fact that the rejection of the nomination paper by the Election Officer was illegal, improper or invalid. Under Rule 20 (1) the petitioner had his remedy against the aforesaid illegal or improper rejection of his nomination paper by the Election Officer and the appeal, was, certainly, intended for such cases, and, so, the petitioner cannot make any grievance now of the rejection of his nomination paper, as aforesaid, by the Election Officer, so as to base his claim for relief in this Rule upon that ground. As a matter of fact, the petitioner filed his appeal before the District Magistrate and the present Rule is directed against the appellate order, passed by the learned Additional District Magistrate, who heard the said appeal and affirmed the Ejection Officer’s rejection of the petitioner’s nomination paper upon the view that the said rejection was justified. We shall, therefore, confine our attention only to the order of the appellate officer to see whether it is liable to interference under Article 227 of the Constitution which, as
we have already held above, is applicable to cases of the present type.
27. Turning now to the impugned appellate order, which was passed by the learned Additional District Magistrate, who acted as the appellate authority, as aforesaid, it appears that the only ground that was given by the learned Magistrate in support of his said order was in these terms:
“The plea advanced by the learned lawyer (of the appellant) that it is the tenant under Section 140 of the Bengal Municipal Act and not the applicant or his co-sharers who are liable to pay the taxes for the year 1958-59 cannot be considered for the simple reason that none has paid the taxes for 1958-59.”
28. We do not understand what the learned Additional District Magistrate actually meant by the above observation. Admittedly, the tax in question has not been paid, as, otherwise, no question of disqualification would have arisen, but the question before the learned Magistrate was whether the petitioner was liable for the relative arrear rates or taxes and whether, on account of such liability, if any, and the non-discharge of it, he could be held disqualified to stand as a candidate for the election in question under Section 22 (1)(g) of the Act. The learned Additional District Magistrate does not appear to have directed his attention at ail to this aspect of the matter and he has, simply on a reason which is, to say the least, quite unintelligible, recorded the arbitrary conclusion that the Election Officer was “fully justified in rejecting the (petitioner’s) nomination paper.” As we have pointed out above, the Election Officer had no authority to reject the petitioner’s nomination paper and it does not appear also that he has given any reason for such rejection which was endorsed or accepted by the learned Appellate Magistrate. In these circumstances, it is difficult to hold that the learned Additional District Magistrate, sitting as the appellate authority, acted at all in the discharge of his duties, as contemplated by the statute and the relevant statutory rules, particularly when It is reasonably clear beyond all possible doubt that he Overlooked and did not advert to the only point and the only aspect which required decision in the case and which should, have been considered and determined by him. He did not do what his duty,–that is, his duty under the particular statute–required him to do and he did not certainly “do it in a legal manner.” In other words, there was failure on his part to exercise the jurisdiction which was vested in him by law and which he was bound to exercise under and in terms of the statute in question, to which he owed his authority and existence as the appellate authority or tribunal as aforesaid. This instant case, therefore, is one , where the tribunal concerned has not kept itself within the “bounds of its authority”, as explained hereinbefore, and the objection, taken by Mr. Majumdar and supported by Mr. Banerjee, on this part of the case, cannot be upheld, even On the authority of the Supreme Court case in supra, though the question still remains whether
this is a fit case for interference in the exercise of our powers under the above Article.
29. Turning to his latter aspect, we are inclined to think that, if the petitioner, in the instant case, cannot get relief here against the wrong, which has been done to him, by the improper (illegal) rejection of his nomination paper, as aforesaid, he will certainly suffer irreparable loss and injury, as pointed out by Wallace, J. in the case of Sarvothama Rao v. Chairman, Municipal Council, Saidapet, AIR 1923 Mad 475, whose relevant observations may be quoted as follows:
“The election has yet to be held and I am quite clear that any post-election remedy is wholly inadequate to afford the relief which the petitioner seeks. ………. It is no consolation to
tell him that he must let the election go on and then have it set aside by petition, and have a fresh election ordered. The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates…..,”
(Vide p. 479–Vide also p. 476 of the Report per Schwabe, C. J.).
30. It is true that, in the later case of Desi Chettiar v. Chinnaswami Chettiar, AIR 1928 Mad 1271, the same learned Judge (Wallace, J.), preferred to take a somewhat different view, but, with all respect,–and even apart from certain-distinctions which are patent as between the two cases and the somewhat unintelligible position of a post-election petition in an election, which appears to have been stayed,–it seems tous that his (Wallace, J.’s) earlier observation-would be more appropriate and applicable ‘to a. case like the present. We are not unmindful of the comments of the Supreme Court in Ponnu-swami’s case on this aspect of the matter, but we would point out, with respect that the case before the Supreme Court was, as explained above, entirely of a different nature and under a statute, which had an altogether different context, different purpose and different textual language, and to which, as pointed out by the Supreme Court,. the later observations of the learned Judge (Wallace, J.) (Vide AIR 1928 Mad 1271 at p. 1272) were, obviously, more apposite and more readily applicable.
31. In the above view, we think that both on tile merits and also on the technical aspect, the petitioner is entitled to succeed and, in that view we would make this Rule absolute, set aside the order of the learned Additional District Magistrate and direct him to order aceeptance of the petitioner’s nomination paper as valid for purposes of the ensuing Municipal election of Ward No. III of the Bally Municipality.
32. As the elections are to be held day after to-morrow, it is necessary to make it clear that this judgment (order) of ours does not affect and need not mean, any stay of the elections, so tar as the other wards are concerned, and only the election of Ward No. III will be held after the inclusion of the petitioner’s name in the list of candidates (vide Rule 17 (5) read with Rule 20) as one of the contesting candidates. For that purpose, the Municipality and the learned District
Magistrate will take appropriate steps according to law, as expeditiously as possible.
33. Having regard to the state of the relevant law and also the circumstances of this case, we would direct the parties to bear their own costs in this Rule.
34. Let a copy of this judgment be sent to the learned District Magistrate as quickly as possible for his information and guidance and necessary action.
Niyogi, J.
35. I agree.
