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Municipal Borough Vs. Mahomed Isak Abdul Karim - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai
Decided On
Reported inAIR1936Bom43; 160Ind.Cas.736
AppellantMunicipal Borough
RespondentMahomed Isak Abdul Karim
Excerpt:
.....the atrocities act that the complainant should disclose the caste of the accused in the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - 2. it was contended by the municipality in the trial court that it was competent to it to retain on the electoral roll the names of some of the persons who were held to be disqualified by the district judge, by reason of the fact that they were voters for the election of members to the bombay legislative council, and that the plaintiff's suit was bad for want of notice under section 206, bombay municipal boroughs act. the wording of this rule clearly implies that once a roll has been..........of rule 10, even though errors in the roll may afterwards be detected.4. the omission from the roll of persons who were qualified under section 11, sub-section (1), was no doubt a hardship. but it was one which the persons aggrieved could have remedied if they had taken proper action under rule 10, sub-rule (1). there was no power left in the municipality, after the appeal to the district judge, to make any further alterations in the electoral roll. the municipality's own power to alter the rolls is strictly limited by rule 10 to alterations made on a reference by the chief officer or by persons aggrieved. such references have under the rules to be made within a fortnight from the date of the first publication of the list-in this case (21st july 1930)-and under sub-rule (4), rule 10,.....
Judgment:

N.J. Wadia, J.

1. The respondent had filed a suit against the appellant the Municipal Borough of Dhulia, for an in junction restraining it from giving a fresh qualification to certain persons who; according to him, had been disqualified by an order passed by the District Judge under Rule 10, Sub-rule (5), of the Municipal Election rules. On 21st July 1930, the electoral roll of the Municipality was published under Rule 6 for the purposes of the triennial elections which were to take place on 19th October 1930. On 6th August 1930, a reference was made by the Chief Officer to the Municipality under Sub-rule (3) of Rule 10 pointing out that 936 persons whose names appeared on the list of voters were disqualified under Sub-section (2) of Section 11 of the Act. The Municipality rejected the reference and the respondent preferred an appeal to the District Judge against the decision of the Municipality under Rule 11, Sub-rule (5) of the Municipal Election Rules. On 30th September 1930, the District Judge allowed the appeal holding that those persons who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in Sub-section (2) of Section 11 were not entitled to have their names retained on the list of voters. After this decision the Municipality made an application to the District Judge on 7th November 1930, in which it pointed out that the order passed by the District Judge in the appeal directing the Municipality to omit the names of those who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in Sub-section (2) of Section 11, had been construed by some as disqualifying the voters who were quali fied to vote under Sub-section (l) of Section 11, Bombay Municipal Boroughs Act. As there was some doubt and confusion on the subject it asked for directions of the Court in the matter. The District Judge held that there was no ambiguity in the language of the judgment and declined to give any further directions. After this order the Municipality on 15th November 1930, passed a resolution by which it retained on the electoral roll the names of some persons whose omission had been ordered by the District Judge, on the ground that these persons were entitled to be on the roll because of their being qualified to vote under Section 11 (l) of the Act.

2. It was contended by the Municipality in the trial Court that it was competent to it to retain on the electoral roll the names of some of the persons who were held to be disqualified by the District Judge, by reason of the fact that they were voters for the election of members to the Bombay Legislative Council, and that the plaintiff's suit was bad for want of notice under Section 206, Bombay Municipal Boroughs Act. The trial Court held that notice was not necessary and that the act of the Municipality was illegal. On appeal the District Judge confirmed the decree of the lower Court holding that it was not competent to the Municipality to retain on the electoral roll the names of some of the persons who were held by the District Judge to be dis qualified, and that no notice was necessary under Section 206 of the Act. Against this decision the Municipal Borough of Dhulia has filed this second appeal. With regard to the question whether it was competent to the defendant Municipality to retain on the electoral roll the names of some of the persons who were held by the District Judge to have been disqualified, I am of opinion that the view taken by both the lower Courts is correct. The roll which was first published by the Municipality on 21st July 1930, contained the names of persons qualified to vote under Section 11, Sub-Sections (1) and (2) of the Act. In this roll 936 persons who were shown as qualified to be voters under Section 11, Sub-section (2) were reported to the Municipality by the Chief Officer as having been wrongly so entered.

3. It appears that some of these persons were also qualified to vote under Sub-section (l) of Section 11, but this qualification had by mistake not been shown against their names in the roll already published. It was open to these persons to have this omission rectified under Rule 10, Sub-rule (1). It was also open to the Returning Officer, who in this case was the Chief Officer of the Municipality, to bring the error to the notice of the Municipality. Neither of these things was done. The Chief Officer only brought to the notice of the Municipality the fact that these 936 persons had been shown as qualified under Rule 11, Sub-rule (2), when they were not. His reference was rejected by the Municipality and the plaintiff thereupon preferred an appeal to the District Judge from the decision of the Municipality. In appeal the District Judge directed that the names of those out of these 936 persons who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in Sub-section (2) of Section 11, should be omitted from the roll. After this order the Municipality, instead of omitting from the roll the names of all the persons who were held by the District Judge to have been disqualified, retained on the roll the names of some of them who, though disqualified under Section 11, Sub-section (2), were qualified under Section 11, Sub-section (1). It seems to me clear from the rules that the Municipality had no power to make any alterations in the rolls already published, except such as had been made by it on a reference by the Returning Officer under Rule 10, Sub-rule (4), or such as had been ordered by the District Judge on appeal under Sub-rule (6) Rule 10. Rule 11 provides that when the list of voters has been prepared and, where necessary, revised as provided, in accordance with any order passed in that behalf by the Municipality or by the Judge in appeal, a copy thereof signed by the Returning Officer shall be the Municipal Election Roll. The wording of this rule clearly implies that once a roll has been published under Rule 6 the only alterations which can be made in it are those which are made under Sub-ruler. (4) and (6), Rule 10. It is not open to the Municipality to make any alterations not falling under these two Sub-rules of Rule 10, even though errors in the roll may afterwards be detected.

4. The omission from the roll of persons who were qualified under Section 11, Sub-section (1), was no doubt a hardship. But it was one which the persons aggrieved could have remedied if they had taken proper action under Rule 10, Sub-rule (1). There was no power left in the Municipality, after the appeal to the District Judge, to make any further alterations in the electoral roll. The Municipality's own power to alter the rolls is strictly limited by Rule 10 to alterations made on a reference by the Chief Officer or by persons aggrieved. Such references have under the rules to be made within a fortnight from the date of the first publication of the list-in this case (21st July 1930)-and under Sub-rule (4), Rule 10, these references have to be decided by the Municipality at its next meeting. This period had passed long before 15th November 1930-the date on which the Municipality actually made the alterations. I agree therefore with the view taken by the learned District Judge and by the learned First Class Subordinate Judge, that it was not competent to the Municipality to make any alterations in the roll originally published, except those ordered by the District Judge.

5. I am however unable to accept the finding of the lower appellate Court that no notice under Section 206, Bombay Municipal Boroughs Act was necessary. It was contended on behalf of the appellant Municipality that in view of the decision of their Lordships of the Privy Council in Bhagchand Dagadusa v. Secy, of State 54 I A 338 a notice under Section 206 was necessary. The question in Bhagchand Dagadusa v. Secy, of State 54 I A 338 was one of notice under Section 80, Civil P.C. Prior to this case there had been a marked difference of opinion between the view taken by this High Court on the one hand and the High Courts of Calcutta, Madras and Allahabad on the other with regard to Section 80, Civil P.C. It had been held by this Court that in suits to restrain by injunction the commission of some official act prejudicial to the plaintiff where the immediate result of the act would be to inflict irremediable harm, Section 80 did not compel the plaintiff to wait for two months before bringing his suit. Their Lordships of the Privy Council agreeing with the view taken by the other High Courts held that the provisions of Section 80 were express, explicit and mandatory, and admitted of no implications or exceptions. Both the lower Courts have taken the view that the ruling in Bhagchand Dagadusa v. Secy, of State 54 I A 338 was not applicable to the facts of the present case, it was a ruling with regard to Section 80, Civil P.C., and not with reference to Section 206, Bombay Municipal Boroughs Act. But in two recent decisions of this Court: Patel Mathurbhai Barbadbhai v. Patel Ambalal Samaldas, L.P.A. No. 14 of 1929, decided on 3rd July 1930, by Madgavkar and Barlee, JJ & Section Ganesh Shripad Chifcnis v. The Belgaum City Municipality, Second Appeal No. 669 of 1930, decided on 26th September 1933, by Murphy, J the decision of their Lordships of the Privy Council in Bhagchand Dagadusa v. Secy, of State 54 I A 338 was held applicable to suits coming under Section 206, Bombay Municipal Boroughs Act.

6. In Patel Mathurbhai Barbadbhai v. Patel Ambalal Samaldas, L.P.A. No. 14 of 1929, decided on 3rd July 1930, by Madgavkar and Barlee, JJ it was held by Madgavkar and Barlee, JJ., that Section 206, Bombay Municipal Boroughs Act did not limit the requirement of notice to particular kinds of suits for damages or money, and that the decisions in Patel Panachand v. Ahmedabad Municipality,(1896) 22 Bom 230 and Harilal v. Himat (1896) 22 Bom 636 in so far as they purported to limit the necessity of notice to particular kinds of suits according to the relief claimed, could not, in view of the decision in Bhagchand Dagadusa v. Secy, of State 54 I A 338 be supported. In Section Ganesh Shripad Chifcnis v. The Belgaum City Municipality, Second Appeal No. 669 of 1930, decided on 26th September 1933, by Murphy, J Murphy, J., held that the reasoning in Bhagchand Dagadusa v. Secy, of State 54 I A 338 must be held applicable to suits coming under Section 206, Bombay Municipal Boroughs Act, and pointed out that there were two decisions of this Court holding that the view taken in Bhagchand Dagadusa v. Secy, of State 54 I A 338 applies also to suits in which a notice was required under Section 206, Bombay Municipal Boroughs Act. The decision in Patel Mathurbhai Barbadbhai v. Patel Ambalal Samaldas, L.P.A. No. 14 of 1929, decided on 3rd July 1930, by Madgavkar and Barlee, JJ is a decision of a Division Bench and is binding on this Court.

7. It has been contended on behalf of the respondent that Section 206 is not applicable to this case because the action of the Municipality in retaining the names on the list of voters, in spite of the order of the District Judge, was not an act which was done or which purported to have been done in pursuance of the Act. The words purporting to be done' used in Section 80, Civil P.C., were interpreted in Koti Reddi v. Subbiah 41 Mad 792 and it was held by a Full Bench of the Madras High Court that the question of the good faith or bad faith of the Public Officer either as regards his belief in the legality or propriety of his act, or the limit of his powers, or the existence of facts justifying the exercise of such powers, is irrelevant in the consideration of the question whether the officer is entitled to notice under Section 80, Civil P.C. In the course of his judgment Sadasiva Ayyar, J., said (p. 810):

But if the act done is so outrageous and extraordinary that no reasonable man could detect in it any resemblance to any act which the powers of such an officer could allow him to do on the facts as represented and declared by such officer, his mere allegation that he did the act in his official capacity would not suffice.

8. It is contended on behalf of the respondent that the act of the Municipality in the present case was so outrageous and extraordinary that it could not be said that it acted or purported to act in pursuance of the Bombay Municipal Boroughs Act. I am unable to accept this contention. That the Municipality had an honest doubt as to the interpretation of the order passed by the District Judge is clear from the application which was made by it to the District Judge on 7th November 1930, asking for directions on this particular point. The District Judge unfortunately refused to pass any order on the ground that there was no ambiguity in the language of his judgment. After this, as appears from Ex. 18., the Municipality made a reference to the Collector asking for his orders in the matter. It seems clear from this that the Municipality was honestly under the impression that the District Judge's order did not prevent it from amending the roll so as to enter on it the names of persons who it thought had been through oversight omitted from the electoral roll, and whose qualifications under Section 11, Sub-section (1), had not been considered at all. The act of the Municipality was clearly one which purported to have been done under Rules 10 and 11 of the Rules under the Municipal Boroughs Act. In my view therefore notice of the suit was necessary, and the plaintiff having brought his suit without such notice, the suit must fail. The decree of the lower Court will therefore be reversed and the appeal allowed with costs throughout.


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