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Shankarlal Jadhavji Joshi Vs. the Municipal Commissioner of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Miscellaneous No. 19 of 1939
Judge
Reported inAIR1939Bom431; (1939)41BOMLR911
AppellantShankarlal Jadhavji Joshi
RespondentThe Municipal Commissioner of Bombay
DispositionApplication dismissed
Excerpt:
.....(3), (4) and 28, clause 32(k) and 33, sub-section (1), (2), (3) and (5) - mandatory provisions-ward lists-electoral roll-grouping of voters in alphabetical order according to communities whether legal-joint electorate-specific relief act (i of 1877), section 45-interference with franchise or personal right-forbearance to do specific acts- consonance with right and justice.;the applicant, who was enrolled as a voter in the municipal electoral roll for the city of bombay, refrained from exercising his right as a voter at the general election of councillors held in bombay on february 7, 1939. before the result of the election was announced by the municipal commissioner, under section 34 of the city of bombay municipal act, 1888, he filed an application in the high court submitting that..........municipal electoral roll for the city of bombay. his name appears under serial number 7895 in the ward roll of that ward. the applicant's case is that the ward lists for the nineteen wards upon which the electoral roll was founded on or about december 20, 1938, are not, to use the words of the petition, 'prepared strictly in accordance with the mandatory provisions of sub-section (3) and (4) of section 19 of the said act' (meaning the city of bombay municipal act of 1888), that therefore there was no proper electoral roll in operation at the date of the elections, and that the elections held under that roll are in law a nullity. the applicant accordingly prays for an order requiring the municipal commissioner to forbear from doing the acts specified in para. 16 of the petition:(a) to.....
Judgment:

B.J. Wadia, J.

1. This is a petition filed by the applicant under Section 45 of the Specific Relief Act for an order requiring the respondent, the Municipal Commissioner of Bombay, who is a person holding a public office within the meaning of that section, to forbear from doing certain specific acts mentioned in the petition in connection with the Municipal elections held in Bombay on February 7 last. The city of Bombay is now divided into nineteen wards for the purposes of elections, and the applicant is enrolled as a voter in ward No. 6 (Bhuleshwar and Market) in the Municipal electoral roll for the city of Bombay. His name appears under serial number 7895 in the ward roll of that ward. The applicant's case is that the ward lists for the nineteen wards upon which the electoral roll was founded on or about December 20, 1938, are not, to use the words of the petition, 'prepared strictly in accordance with the mandatory provisions of Sub-section (3) and (4) of Section 19 of the said Act' (meaning the City of Bombay Municipal Act of 1888), that therefore there was no proper electoral roll in operation at the date of the elections, and that the elections held under that roll are in law a nullity. The applicant accordingly prays for an order requiring the Municipal Commissioner to forbear from doing the acts specified in para. 16 of the petition:

(a) To cause Lists prescribed under Clause (k) of Section 28 of the said Act to be prepared for each Ward and made available for sale or inspection in the Commissioner's Office

(b) To declare the result of the said so called General Elections of councillors under the provisions of Section 32 of the said Act, and

(c) To fix the requisite notice in respect of the result of the said so called General Elections of councillors under the provisions of Section 32 of the said Act.

2. The petition was filed on February 18 last, and on the same date counsel for the applicant applied for and obtained a rule calling upon the Municipal Commissioner to show cause why the order applied for should not be made. It was also alleged in the petition that the applicant had, by his notice, dated February 15 last, asserted his right in the matter, and required the Municipal Commissioner to forbear from doing the specific acts and to inform the applicant accordingly, but he had failed and neglected to do so. That statement appears in para. 18 of the petition, and on the strength of the statement an order for interim stay was made till Tuesday last when the rule was argued in Court.

3. The application is made under Section 45 of the Specific Relief Act. Under that section the High Court of Bombay is empowered to make an order requiring any specific act to be done or forborne by a person holding a public office, subject to the conditions contained in provisos (a) to (e). Under the provisos the applicant must be a person whose property, franchise or personal right would be injured by the forbearing or doing (as the case may be) of the specific act; the party against whom the order may be made must be amongst others a person holding a public office upon whom the doing of or forbearing to do the act is, under any law for the time being in force, clearly incumbent. The applicant must also establish that he has no other specific and adequate legal remedy, and that the remedy given by the order applied for will be complete. Further, in the opinion of the Court the doing of or forbearing to do the act must be consonant to right and justice. Section 46 provides that every application under this section must be founded on an affidavit of the person injured, stating (a) his right in the matter in question, (b) his demand of justice, and (c) the denial thereof. It has been held in numerous cases that the conditions laid down in these provisos are cumulative, so that all of them must be fulfilled before the order applied for is made. It has also been held that the order is discretionary. The Court's jurisdiction has no doubt to be exercised for the protection of the rights of the public ; but it must nevertheless be exercised with caution, as the remedy is of a summary nature and coercive in its character. It must be further borne in mind that Section 45 enables the Court to make an order requiring any specific act or acts to be done or forborne from being done, and nothing else.

4. In the first place, therefore, the applicant must show that his franchise or personal right would be injured by the doing of the acts he wants the Municipal Commissioner to forbear from doing. In order to deal with this contention it is necessary to examine some of the relative sections of the Bombay Municipal Act. Section 19, Sub-clause (3), provides:

The list of voters of wards shall be made in separate lists, called ward lists, one for each ward into which the city is divided as hereinafter provided, containing the names of persons entitled to be enrolled as voters of that ward. The ward lists shall be arranged in alphabetical order and shall contain the addresses of persons who are entitled to be enrolled under the provisions of Sub-section (2) of Section 11.

It is provided by Section 19, Sub-clause (4), that in preparing the ward lists the Commissioner shall enter therein the names of the persons who are entitled to be enrolled under the provisions of Section 11, Sub-section (2), whether such persons be individuals, companies, firms, undivided families or other associations or bodies of individuals, and shall also enter the names of persons who are entitled as aforesaid as the trustees of any building or land. The part of Sub-section (4) beginning with the words 'whether such persons' up to the end has now been amended by Bom. Act No. XIII of 1938 ; but, as that amendment did not apply to the elections already held, I need not trouble further about it. The ward lists that were actually prepared for the nineteen wards are divided (1) for individuals, and (2) for companies and firms as under, viz. (1) for individuals divided according to communities, and sub-divided according to streets ; and (2) for companies or firms divided according to streets. It is contended on behalf of the applicant that such an arrangement is not according to the provisions of Section 19, Sub-section (3) and (4). It was also contended that the arrangement was opposed to the fundamental principle of joint electorates. That contention was not pressed, as it was really not tenable. An electorate still remains joint, even though its component members are grouped according to the communities to which they respectively belong.

5. Counsel for the applicant argued that the provisions of Section 19 (3) and (4) are mandatory. Counsel for the Municipal Commissioner argued that they were directory, and that in fact the grouping according to communities was made only for the sake of convenience at the time of voting. No doubt, the words 'shall be made,' 'shall be arranged,' 'shall enter' are mandatory words; but on a close examination of the Sub-sections I do not find anything in them which prevents the voters being grouped according to communities, for the ward lists would still be in alphabetical order, though literally the names of the voters appearing in alphabetical order would be grouped according to the communities to which they belong. I do not think that in preparing the ward lists there was a material deviation from those sub-sections. Even if the ward lists are not literally prepared in accordance with the provisions of Section 19, Sub-sections (3) and (4), substantially they are so prepared, and it has not been alleged that any injustice has resulted to any one on that account. The applicant himself says that the ward lists are not 'strictly prepared' according to the provisions of the sub-sections. It is nowhere specifically alleged that they are illegal. In another place in the petition the words used are that the arrangement is 'singularly at variance with that prescribed under the mandatory provisions of the sub-sections.' Even assuming that the ward lists have not been strictly prepared according to those sub-sections, the applicant must still satisfy the Court, before invoking its extraordinary jurisdiction, that the ward lists and the electoral roll based upon them would have injured his franchise or personal right. A man's franchise is his right to vote at an election and the qualifications upon which that right is based. How was the applicant who has the qualifications of a voter, and is in fact enrolled as such in his own ward, injured from exercising his right to vote? He was not prevented from voting if he had chosen to do so, even though his name was placed among Hindus, and was not placed strictly according to the alphabetical order among the voters, irrespective of their communities. The only explanation I could get was that there was no electoral roll as contemplated by the letter of the provisions of Section 19(3) and (4), that a properly prepared roll being the basis of a proper election there was no basis for the election at all, and that, therefore, the applicant could not exercise his right to vote. Every voter, it was argued, has a right to vote and to see that others vote according to a properly prepared electoral roll, and such a roll not being there, the applicant's right was injured. It is somewhat difficult to understand this argument. To use counsel's words, 'there was an irregularity going to the root of the matter.' If there is any irregularity at all, the matter is one which could be settled between the Corporation and the Municipal Commissioner ; but with that I am not concerned. I do not see how the roll as prepared injured the applicant in exercising his franchise in the manner indicated by him in para. 15, viz. that it prevented him from taking any part whatsoever either by way of signing any nomination paper of any candidate as proposer or seconder or by voting or otherwise. I have already said that there was nothing to prevent him from voting. There was nothing also to prevent him from signing the nomination paper of a candidate as proposer or seconder, if at all he had entertained the intention to do so. There is really no act or omission pointed out to me which can be said to have really interfered with his franchise. I, therefore, hold that his franchise has not been injured within the meaning of the first proviso to Section 45.

6. It was also argued, though with much less emphasis, that applicant's personal right had also been injured. A personal right is not a right which every member of a civilised society possesses independently of any act of his own. The applicant must show that he had some special definite individual right of his own in the matter complained of irrespective of his right as a member of the community at large. No special circumstances have been shown indicating such a personal right. The applicant had, therefore, no special interest of his own as a voter beyond what he had in common with other voters. There is, therefore, no injury to his property as contemplated by the section. The duty sought to be enforced on the Municipal Commissioner must be clear and obligatory, and1 the forbearing to do the acts he wants to dot must be clearly incumbent upon him. What is incumbent is not discretionary. There has been a de facto election, and what remained for the Municipal Commissioner to do was to complete the result by the final declaration under Section 32 of the Act. The first specific act which the applicant wants the Municipal Commissioner to forbear from doing is to cause lists prescribed under Section 28(k) to be prepared and made available for sale in his office. The words of Section 28 (k) are that the Commissioner shall declare the result of the poll as therein stated and shall cause lists to be prepared for each ward with the details mentioned in the Sub-clause (k). These words are, in my opinion, also mandatory. The next two acts go really together, viz. that he should forbear co declare the result of the elections and to fix the requisite notice in respect of the result under Section 32. The words of that section are that the result of every election shall be declared, and that the said notice shall be signed by him. These words are equally mandatory. Under Section 33, Sub-clause (5), every election not called in question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election. Can the Municipal Commissioner forbear to act under Section 28(k) and under Section 32 when the election has not been called in question under the provisions of Section 33 It is the doing of these acts which is incumbent upon him by the clear terms of the statute. The jurisdiction of this Court is limited to cases where there is a clear breach of duty to do or forbear from doing, as the case may be. What is or is not clearly incumbent must be determined by reference to the provisions of the statute or regulation under which the act complained of should have been done or forborne. The words of Section 45, Sub-clause (b), are 'under any law for the time being in force ', and the law for the time being in force is the law) laid down in the Municipal Act. It is the doing of the acts mentioned in para. 16 and not the forbearance to do them which is enjoined upon the Municipal Commissioner. The doing of those acts does not constitute an infringement of the applicant's personal right or franchise. The Municipal Commissioner could only forbear to do those acts if the election was declared invalid. An applicant under Section 45 of the Specific Relief Act, however, cannot ask for such a declaration nor can the Court make it, as a relief by way of declaration is neither contemplated by nor directed under the section : see Provas Chandra Roy, In re In my opinion, therefore, the Municipal Commissioner cannot be restrained from doing that, which, until the election is set aside, is clearly incumbent upon him to do under the Act. It is an elementary principle of the law that a man should not be allowed to have recourse to an extraordinary remedy of the kind contemplated by Section 45 if it is not really needed ; so that it is for the applicant to show that he has no other specific and adequate legal remedy. It was argued on behalf of the Municipal Commissioner that the applicant should have awaited till after the final declaration of the results of the election was made as contemplated by Section 32, and then pursued his remedy under Section 33 under which, inter alia, a voter can challenge the validity even of an entire election before the Chief Judge of the Small Cause Court, Bombay. That is the special tribunal appointed by the statute for the purposes, as laid down in Bhaishmhar v. The Municipal Corporation of Bombay I.L.R. (1907) 31 Bom. 604 however, only comes into operation after the declaration of the results is complete under Section 32, and I do not think that Section 33 takes away the applicant's right, if any, to go to the High Court in a proper case under Section 45 even before the declaration of the result is completed. The remedy under Section 33 would certainly be the more complete remedy; and the applicant cannot say that he has no other remedy whatsoever, though at the moment the application was filed he had technically no remedy under Section 33 of the Act.

7. The applicant must, lastly, show that the order he has prayed for is consonant to right and justice. That expression ' consonant to right and justice only emphasises the equitable jurisdiction of the Court in making the order. Counsel for the applicant relied on R.C. Sen, In re I.L.R. (1912) Cal. 598 which has been followed in Surendra Chandra Ghose, In re I.L.R. (1918) Cal. 950. It was held in the earlier case that the. omission of a statutory officer to perform his public duties as to the settlement of the electoral roll in the manner provided; by the Act in question is a forbearance to do something that is not consonant to right and justice within the meaning of Section 45. In that case the petitioner challenged the list of voters of a ward of the municipal town of Calcutta on the ground that certain claims and objections which were filed by a person were not lodged in their proper place and within the time limited for the purpose. That was a case where the list of voters was challenged before the election was held. In fact the petitioner and the person filing the claims and objections were rival candidates for being elected as commissioner of a particular ward of the municipal town of Calcutta. In such a case the omission to prepare and publish a revised list of voters was not consonant to right and justice, as it would injure the petitioner's franchise. Similarly, in Kanaiyalal v. Secretary of State (1924) 27 Bom. L.R. 368, a suit was filed for a declaration that the preparation and publication of the lists for voters for the District Local Board for the district of Surat were not according to the provisions of the Act. It was filed before the elections were held. In fact, the injunction prayed for was that the Collector of Surat may be restrained from holding the elections. Macleod C. J., however, held that the proper remedy of the plaintiff was not by suit, but under Section 45 of the Act. With regard to the electoral roll it must be remembered that it could be challenged under the Act before the elections, and also corrected and revised. In this case there has been an election in which the voters went to the polls on the basis of the Municipal electoral roll in question, and the applicant was well aware of it on his own showing in para. 15 of the petition. He does not say when he first came to know that the roll was not the proper electoral roll as he contends it is not. He seems to have waited till after the election was over, and moved in the matter only on February 15 last, just before the declaration of results was about to be completed. No Court of equity would come to the rescue of a person under this among other circumstances and exercise its discretion in his favour. What is or what is not consonant to right and justice must depend on the facts and circumstances of each case. In the exercise of its extraordinary jurisdiction the Court generally has regard amongst other things to considerations of the importance of the case, or the principles involved, or the delay on the part of the applicant in making the application, or to considerations which involve protection of the rights of other persons.

8. In my opinion this is not a bona fide application, and it cannot be sustained on its merits. The provisions of Section 45 of the Specific Relief Act under which the applicant seeks relief have not been complied with. The application is thereby vitiated, and the Court cannot exercise in favour of the applicant the extraordinary jurisdiction that has been invoked.

9. In the result the application must be dismissed with costs, the rule discharged, and the interim stay order vacated. Costs to be taxed.


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