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Nawal Kishore Agarwala Vs. Municipal Board and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All365
AppellantNawal Kishore Agarwala
RespondentMunicipal Board and ors.
Excerpt:
- - 8. the argument urged on behalf of the plaintiff is that it was in consequence off the omission of the returning officer in not preparing the electoral roll from the lists and registers maintained at the municipal office that the failure of the plaintiff has been brought about, resulting in the forfeiture of his security. the condition of the forfeiture is the failure to secure the minimum number of votes out of the votes actually polled. the condition is not that there should be a failure to secure a minimum number of votes out of all the persons eligible as voters. the plaintiff's failure to obtain the requisite number of votes out of the votes actually polled enrolled his forfeiture......has been omitted from it or of any person not qualified to vote has been inserted in the electoral roll or rolls, or on the ground of any non-compliance with this act or any rule or any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with the carrying out of this act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election. it is therefore obvious that there are certain grounds mentioned which alone can be made the grounds for an election petition, and the election cannot be challenged on any other ground. provision is then made for the hearing of such petitions and a tribunal is constituted under section 22 of the act. under.....
Judgment:

1. This is a plaintiff's appeal arising out of a suit for (a) a declaration that the election of 16 members of the Municipal Board of Gorakhpur was illegal and accordingly the Board is not legally and validly constituted; (b) an injunction restraining the Board from acting as such; and (c) refund of Rs. 50 which had been deposited as security by the plaintiff who was a candidate at the election. The first Court decreed the claim for refund of the amount of security, but dismissed the rest of the claim; its finding was that there was some irregularity or illegality committed in the preparation of the electoral rolls. On appeal the learned District Judge has come to the conclusion that the suit does not lie in the civil Court at all, and has accordingly dismissed it.

2. It cannot be disputed that where there is any special or local law in force or any special jurisdiction or power conferred by any special form of procedure prescribed by any other law, nothing in the Code of of Civil Procedure will apply. This is expressly provided in Section 4, Civil P.C. It follows that where there is such special or local law the civil Court would not have jurisdiction under Section 9, Civil P.C., to entertain a claim merely because it is of a civil nature. So far as the reliefs for the declaration regarding the illegality of the election of the members of the Board and the injunction against the Board are concerned, the point is covered by the ruling of the Full Bench in Abdul Rahman v. Abdul Rahman : AIR1925All380 where it was laid down that no suit would lie in a civil Court for a declaration that the result of a Municipal election has been wrongly declared and that the plaintiff is the person entitled to be declared elected. It follows that no injunction can be issued against the Board for the same purpose. The learned advocate for the appellant has then urged before us that so far as relief (c) for the refund of the security money is concerned, the matter is cognizable by a civil Court. His argument is that the claim is brought against the Municipal Board expressly which has received this amount and has appropriated it. It is argued that no relief could have been claimed against the Municipal Board before the election officer, and it is further urged that there is no provision in the Municipalities Act or in the rules framed the re-under under which the election officer can pass an order directing a refund of such security after it has been once forfeited. It is therefore contended that there is no special or local law affecting this matter, and accordingly the jurisdiction of the civil Court is not barred.

3. The case put forward by the plaintiff in the plaint was that the electoral rolls which had been prepared had not been compiled from the lists and registers maintained in the Municipal office under Rule 5 (Election Rules for 1931), and that the Returning Officer appointed by the District Magistrate committed mistakes in not compiling the electoral roll from such registers. The allegation was that when the plaintiff after having been nominated went about to find out the houses of the voters with reference to the lists and registers in the Municipal office, he came to know that the rolls were not prepared from such lists and registers and did not tally with them, and accordingly he could not trace some of the voters for the purpose of canvassing. This overlooks the provision in Rule 6 that the Returning Officer can depart from the Municipal lists and registers, although it is necessary for him to record his reasons therefor. It does not follow therefore that the electoral roll must exactly tally with the lists and registers originally maintained at the Municipal office.

4. The object of the preparation of the electoral roll is to have a list ready for the purpose of convenience, so that anyone whose name is not entered therein may come forward and claim that his name should be entered, and also that objection may be raised to the entry of the name of anyone who is not eligible as a voter. Copies of the electoral roll thus prepared are fixed up at the Municipal office and other important places, and time is allowed to persons to come forward to object to its correctness. Thus under Rule 10 any person whose name is not entered in the electoral roll and who claims to have it inserted therein can come forward and make an objection. There is also provision for objecting to the wrong entry of names. Claims and objections are heard under Rule 11 and then the proceedings are concluded by the Revising Committee under Rule 13. Rule 14 then provides that:

Subject to any orders of the District Magistrate on the proceedings of the Revising Committee or Returning Officer and to any correction in any electoral roll enjoined by the District Magistrate.... (a) the orders made by the Revising Committee or by the Returning Officer shall be final; (b) the electoral roll shall be amendedin accordance with those orders; and (c) the electoral roll so amended shall not be altered so long as it continues in operation.

5. The District Magistrate alone is given authority to order corrections in the electoral roll. Rule 15 then provides that after the electoral roll has been completed it shall continue in operation until the next ordinary election for the ward. There is no doubt therefore that the election rules intend that after all claims and objections have been heard and decided, the final electoral roll shall be completed and shall remain in operation until the next election.

6. The learned advocate for the appellant argues before us that Section 19, Municipalities Act, under which an election petition is heard, does not contemplate the hearing of an objection that the name of an eligible voter was wrongly excluded from the list, and that accordingly the jurisdiction of the civil Court is not barred. But Section 19(2) specifically provides that the election of any person as a member of a Board shall not be questioned on the ground that the name of any person qualified to vote has been omitted from it or of any person not qualified to vote has been inserted in the electoral roll or rolls, or on the ground of any non-compliance with this Act or any rule or any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with the carrying out of this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election. It is therefore obvious that there are certain grounds mentioned which alone can be made the grounds for an election petition, and the election cannot be challenged on any other ground. Provision is then made for the hearing of such petitions and a tribunal is constituted under Section 22 of the Act. Under Section 23 the procedure provided in the Civil Procedure Code applies to such claims, and Section 24 specifically states that unless it is otherwise provided by the rule, the election Court shall have the same powers and privileges as a Judge of a civil Court.

7. It is quite clear from these provisions that there is no right given to a person to challenge the election of a member otherwise than on the grounds mentioned in Section 19. This is a special law which must override the general jurisdiction conferred on civil Courts to entertain suits of a civil nature. It follows therefore that it is not open to the plaintiff now to say that the election of any single member of the Board was illegal. It also follows that it is not open to the plaintiff to say that the elections of all the 16 members of the Board were illegal, and accordingly it is not open to, the plaintiff to say that the board consisting of these members is not legally and validly constituted. If the voters whose names were wrongly excluded had come forward, or if the plaintiff had taken steps to ensure that their names were included, no trouble might have arisen. Again, if there were some names wrongly included, it was open to the plaintiff, who was a candidate, to take objections thereto. No such claim having been preferred and no such objection having been raised, the electoral authority completed the electoral roll, which accordingly became final and is no longer open to question.

8. The argument urged on behalf of the plaintiff is that it was in consequence off the omission of the returning officer in not preparing the electoral roll from the lists and registers maintained at the Municipal office that the failure of the plaintiff has been brought about, resulting in the forfeiture of his security. This is a very farfetched argument. In the first place the Municipal Board cannot be blamed for any omission of the electoral officer or any mistake made by him in not preparing the electoral roll from the lists and registers maintained by the Municipal office. In the second place, even if there were any such mistakes, then this would merely be in the nature of an irregularity and not an illegality so as to vitiate the election itself. This is made quite clear from Section 19(2) which says that these errors, irregularities and mistakes can be taken into account by the tribunal only if they have materially affected the result of the election, and such mistakes, irregularities, etc., can be enquired into by the tribunal whose decision is final. It follows in our opinion that a civil Court cannot declare an election to be wholly void merely because any such mistake or irregularity had occurred. In the third place, as regards the omission of names of eligible persons from the electoral roll, the argument urged on behalf of the appellant appears to proceed on several fallacies. It assumes that if these persons had been on the electoral roll, they would have necessarily come forward and recorded their votes. This was by no means necessary. It then assumes that if they had come forward and recorded their votes, they would have recorded their votes in favour of the plaintiff. This is still more problematical. Again, it assumes that the security has been forfeited on account of the plaintiff not having secured the votes of the men whose names were excluded from the list.

9. Indeed, the scheme of the Rules is that after the electoral roll has been completed and is made known to all the candidates they get themselves nominated. Rule 34 provides that if a candidate is not elected and the number of votes polled by him does not exceed a certain prescribed fraction of the total number of votes polled, his deposit shall be forfeited to the Board. The condition of the forfeiture is the failure to secure the minimum number of votes out of the votes actually polled. The condition is not that there should be a failure to secure a minimum number of votes out of all the persons eligible as voters. It follows that for the purpose of forfeiture attention is to be confined to the completed electoral roll as it exists and to the voters on that roll who actually record their votes. The plaintiff's failure to obtain the requisite number of votes out of the votes actually polled enrolled his forfeiture. We are accordingly unable to accept the contention that the forfeiture of the plaintiff's security was brought about by the initial mistake made by the returning officer in not compiling the electoral roll from the lists and registers maintained in the Municipal office, much less that the Municipal Board can be taxed with liability for that omission. The plaintiff has not put forward any allegation that there was any fraud committed during the election itself which could have been made the basis of an objection before the tribunal. The view taken by the lower appellate Court is therefore correct. The appeal is dismissed with costs.


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