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Shewlal Agarwal Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 84(W) of 1964
Judge
Reported inAIR1965Cal380
ActsBengal Municipal Act, 1932 - Sections 6(1), 7, 8, 20, 23, 23(1), 23(2), 24(2) and 529A; ;Bengal Municipal (Amendment) Act, 1962; ;West Bengal Commissioners of Municipality (First General Election) Orders, 1963; ;Constitution of India - Article 226
AppellantShewlal Agarwal
RespondentState of West Bengal and ors.
Appellant AdvocateA.P. Chatterjee and ;Mrinmoy Bagchi, Advs.
Respondent AdvocateP.S. Basu, ;S.K. Banarjee and ;Ganendra Narayan Roy, Advs.
DispositionApplication dismissed
Cases ReferredThe Queen v. Drury
Excerpt:
- orderd.n. sinha, j. 1. the facts in this case are shortly as follows : it relates to the affairs of the english bazar municipality situated within the district of malda and particularly the last general election which took place on the 2nd february, 1964. previously, there were 14 commissioners of the said municipality and the wards into which it was divided were not single-member wards. on or about 24th april, 1962 the west bengal government informed the municipalities situated in the state that there should be universal adult franchise, to effectuate which it was desirable to have one commissioner for one ward. in other words, there should be single-member constituencies elected by universal adult franchise. under section 6(1)(i) of the bengal municipal act, 1932 (hereinafter referred.....
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this case are shortly as follows : It relates to the affairs of the English Bazar Municipality situated within the District of Malda and particularly the last general election which took place on the 2nd February, 1964. Previously, there were 14 commissioners of the said municipality and the wards into which it was divided were not single-member wards. On or about 24th April, 1962 the West Bengal Government informed the municipalities situated in the State that there should be universal adult franchise, to effectuate which it was desirable to have one commissioner for one ward. In other words, there should be single-member constituencies elected by universal adult franchise. Under Section 6(1)(i) of the Bengal Municipal Act, 1932 (hereinafter referred to as the 'said Act') the State Government may by notification alter the number of commissioners of a municipality in consideration inter alia of the increase or decrease in the population, income, number of voters and commercial and general importance of the place. The State Government by notification No. 4696/M. IM-75/62. dated 18th July, 1962 altered the number of commissioners of the said municipality from 14 to 17. Under Section 20 of the said Act, the State Government may, in case of new municipalities of its own motion, and in case of municipalities already in existence at the time the notification is made, after considering the views of the commissioners at a meeting, by notification, divide any municipality into wards for the purpose of the election of commissioners and determine the number of commissioners to be elected from each such ward. The said municipality was superseded in 1960, since when it was being administered by an Administrator. On the 28th July, 1962 the said Administrator caused a resolution to be passed which has the effect of a resolution of the commissioners of the said municipality passed at a meeting, to the effect that the said municipality should be divided into 17 wards. The area and the boundaries of the wards were stated in the resolution. This was communicated to the District Magistrate by a letter written by the Administrator, enclosing the said resolution, dated 31st July, 1962. Thereupon, the State Government accepted the said recommendations embodied in the said resolution and by a notification, dated 10th August, 1963 divided the said municipality into 17 single-member wards. On the 31st July, 1962 the State Government informed the Commissioner, Presidency Division, Jalpaiguri that it was proposed to hand back the administration of the said municipality to an elected body of commissioners on the expiry of the period of supersession, on the 15th March, 1963 and it was requested that steps should be taken for holding a general election on the basis of single-member constituencies. On the 19th June, 1963 the State Government, in exercise of the power conferred by Sub-section (2) of Section 24 of the said Act, issued an order called the 'West Bengal Commissioners of Municipality (First General Election) Orders, 1963' (hereinafter referred to as the 'said Orders') for regulating the general election which was directed to be held According to the provisions of the said Act as amended, a general election held after the amending Act of 1962 had come into operation would be deemed as a first general election. It is stated on behalf of the respondents, in the affidavit in opposition filed on behalf of the Election Officer of the said municipality, that the election rules were prepared in accordance with the said orders.

2. It is provided in the said orders that within thirty days from the date when the said orders came into force, or within such extended period as the District Magistrate may, by order, direct in any particular case, the registering authority was to prepare in Form A appended to the said order, a preliminary electoral roll for the municipality containing the names of all persons qualified to vote under the said Act. The preliminary electoral roll should be published at the municipal office and at such other places as the registering authority may think fit. As soon as the preliminary electoral roll has been published, the registering authority was to give public notice as widely as possible within the municipality to the effect that the roll had been prepared and might be inspected at the municipal office during working days and hours and shall state in the notice at what other places it might be inspected. Any claim for the insertion of a name in the preliminary electoral roll or any objection against any entry thereon shall be preferred to the registering authority within 15 days of its publication. Every person filing a claim or objection at aforesaid shall be served with a notice by the registering authority specifying the place and the time when his claim and objection shall be heard and notifying him that he may produce or cause to be produced by an agent authorised in writing such evidence as he may wish to adduce. Thereafter, a date is fixed and the claim or objection heard and a summary enquiry Is made into the said claim or objection. After considering any evidence produced the registering authority shall make an order either allowing or disallowing the claim or objection. For the purpose of enquiry, the preliminary electoral roll as published shall be presumed to be correct and complete until the contrary has been proved. The registering authority then shall cause the roll to be amended in accordance with the orders passed, and the preliminary electoral roll thus amended shall be the final electoral roll which shall be published in the same manner as the preliminary electoral roll, not later than 10 days after the last day of disposal of claims and objection made as aforesaid. Against such orders there is an appeal under the said Act under Section 529A of the said Act. An order made in appeal is made effective by amending the final electoral roll prepared as aforesaid.

3. It might be mentioned here that there has been a significant change in the qualifications necessary to be an elector in a municipal election, by an amendment of Section 23(2) of the said Act. That provision now runs as follows:

'Save as otherwise provided in this Act, a person who resides in a ward of the municipality and whose name is included in the electoral roll for the time being in force for election of members to the West Bengal Legislative Assembly from an area which includes the area comprised in the municipality shall be qualified to be electors of that ward.'

4. It is clear, therefore, that two things are necessary now to qualify a person for being a voter at a municipal election. The first is that his name should be included In the electoral roll for the time being in force for election of members to the West Bengal Legislative Assembly from an area which includes the area comprised in the municipality. The second is that he should be a resident within area. The electoral roll for election of members to the West Bengal Legislative Assembly is drawn up under the provisions of the Representation of the People Act, 1950. Under the provisions of that Act, residence is also a qualification but with this restriction that a person cannot be included as a voter in more than one constituency. Therefore, if a person is qualified to be included in the roll in more than one constituency, he can only be given the franchise in one constituency. I will now come back to the facts of the present case. According to the petitioner, he is a resident and rate-payer of the said municipality. His name, however, is not in the electoral roll for the area as prepared under the Representation of the People Act, 1950, for the West Bengal Legislative Assembly. I am told that the reason is that his name appears in some other constituency outside the said area. The next thing to b' considered is as to how this new method of preparing electoral rolls under the said Act is to be carried out. A decision of the Supreme Court which throws a great deal of light on the subject is Commr. of Ajmer v. Radhey Shyam Dam', (S) : [1957]1SCR68 . In that case, the respondent claimed to be a voter of the Ajmer Municipality. Under the Ajmer Merwara Municipalities Regulation (6 of 1925) a person had to fulfil two conditions to be entitled to be enrolled as an elector, viz., (1) that he should be entitled under the Representation of the People Act, 1950 to be registered in the electoral roll for a Parliamentary Constituency if that constituency had been co-extensive with the municipality and (2) that his name should be registered in the electoral roll for the Parliamentary Constituency comprising the municipality. If both these conditions were fulfilled, then only a person would be entitled to be enrolled as an elector of the municipality. Under Section 43 of the said Regulation, the Chief Commissioner was empowered to make rules consistent with the Regulation for the purpose of regulating inter alia the preparation and revision of electoral roll and the adjudication of claims to be enrolled and objections to enrolment. The Chief Commissioner framed the Ajmer State Municipality Election Rules, 1955 for that purpose. It provided that the electoral roll for the particular municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the municipality. The electoral rolls were not independently prepared. It was held that the electoral roll was not prepared in accordance with law. Bhagwati, J., said as follows:

'These Rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency was in fact entitled under the Representation of the People Act, 1950 (XLII of 1950) to be so registered and whether he possessed the qualifications prescribed in that Act in this behalf nor did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.'

5. As the electoral rolls were not prepared in accordance with these principles it was held to be invalid.

6. The next case to be considered on the point is a decision of the Punjab High Court, Nitya Nand Kul Bhushan Lal v. Khalil Ahmed Ali Ahmad . In that case, the dispute was with regard to the electoral rolls prepared for the election for the year 1959 of the Pataudi Municipality. What was done there was to take a verbatim copy of the Punjab Legislative Assembly Electoral Rolls and to arrange it ward-wise and publish it as a preliminary roll. Under the Municipal Election Rules, 1952 it was necessary that a person to be entitled to be a voter should be ordinarily resident in the constituency. The Assembly Electoral Rolls had been prepared and corrected upto 21st March, 1958. It was held that the electoral rolls had not been properly prepared and in accordance with law. It was held that the electoral roll was wrongly based on the Assembly Rolls which was corrected only upto 21st March, 1958. There was no check as to the persons who became entitled to be enrolled after that date. Relying on the Supreme Court decision mentioned above, it was held that the electoral rolls should have been prepared after due checking and after the preparation thereof, opportunity should have been given to the parties concerned to scrutinise whether the persons enrolled as electors possessed the requisite qualifications and also opportunity should be given for the revision of the electoral rolls and for the adjudication of claims to be enrolled therein. So far as West Bengal is concerned, I have already mentioned that the preparation of the preliminary and final electoral rolls for the municipality has to be done under the West Bengal Commissioners of Municipalities (First General Election) Orders, 1963. Under Section 23(2) of the said Act, there are two qualifications for being enrolled as a voter. One is that the voter must be enrolled in the corresponding Electoral roll of the Assembly and secondly, that he must be a resident within the area. It is argued that this second fact cannot be determined without a house-to-house checking. A person may be in the Assembly list but may have died or ceased to be a resident in the area at the time when the electoral roll for the municipality was being prepared, in which case he would not be entitled to be in the electoral roll for the municipality. The said orders contain provisions for entertaining claims and objections and the publication of the preliminary and final electoral rolls, but there is no provision for a house-to-house check and it is admitted that in fact no such check has been made.

7. I now come to the various points argued before me. The first point to be considered is as to whether the petitioner is entitled to maintain this application at all. As I have stated above, he is not shown as a voter in the municipal area in the corresponding electoral roll of the Legislative Assembly. He is not in the preliminary or final electoral rolls of the municipality as prepared under the said order. What he says in his petition is that he is a resident and rate-payer of the municipality. Assuming that he is a resident, still he would not be entitled to be shown in the electoral roll of the municipality if his name is not in the corresponding electoral roll of the Legislative Assembly for the area. It is admitted that his name is not in the Legislative list because it appears in the Assembly list for another constituency and under the Representation of the People Act, 1950 a person cannot be shown as a voter in more than one constituency. In this connection, reference may be made to a Supreme Court decision, N. P. Ponnu-swami v. Returning Officer Namakkal, : [1952]1SCR218 . In that case, Fazl Ali, J., said as follows:

'The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.'

The right of franchise is neither a civil right, nor a common-law right nor a fundamental right, Mr. Chatterjee argues that it is sufficient for his client to be a rate-payer and as a rate-payer his client is entitled to challenge the validity of the electoral roll and the election of commissioners of the municipality. In support of his contention he has cited several cases. The first case is a decision of the Andhra High Court Venugopalan v. Commr. Vijayawada Municipality AIR 1957 Andh Pra 833. In that case, the petition was made by three rate-payers and electors of the Vijayawada Municipality praying for the issue of a writ of mandamus directing the respondents not to hold municipal elections for wards Nos. 7, 12, 15 and 30 of the said municipality. In that case also the preparation of the electoral roll was challenged. Vlswanatha Sastri, J., said as follows:

'It cannot be said that the applicants have no specific legal right to be enforced or that their right would not be affected or infringed by the act of the respondents in holding the elections. The matter may be looked at in one of two ways. The applicants are electors in the constituencies to which the proposed elections relate. They can rightly claim that in a democratic set up it is their valuable right not only to exercise their vote but also to see that their wards are properly represented in the municipal council and for that purpose elections conducted in accordance with the law framed For that purpose.

A violation of the statutory rules of election affects the applicants who are voters in the wards and it is for this reason that voters are given an equal right with the candidates, to call in question an illegal and invalid election. The applicants have another and a more substantial right as ratepayers who contribute to the municipal fund and they have a right to prevent the municipal authorities to which they pay rates, from spending municipal funds on unauthorised and illegal elections.... As rate-payers, the applicants have a specific legal Interest which entitles them to come to Court for the protection of that interest and in order to prevent the misapplication of municipal funds on elections held contrary to law... Rate-payers who have contributed to the municipal rates are injured in their property within the meaning of the rules regulating the issue of a writ of mandamus if the rates are misapplied for unlawful enterprises. The contention of the respondent that the applicants have no locus standi to apply for a writ must, therefore, be overruled.'

8. The next case cited is a Bench decision of the Bombay High Court, Municipal Corporation for the City of Bombay v. Govind Laxman Savant AIR 1949 Bom 229. In that case, what happened was as follows: The Municipality of Bombay decided to Improve and increase the water-supply of the City of Bombay and with that view decided to launch, what was popularly known as the Vaitarna-cum-Tansa Project. For that purpose, it was necessary to lay a new pipe line and tenders were invited. The tender of Messrs. Hindustan Construction Co., Ltd. was going to be accepted when an application was made under Section 45 of the Specific Relief Act, praying that the Municipal Commissioners of the Corporation be ordered to forbear from signing and executing the contract with M/s. Hindustan Construction Co., Ltd., and they be ordered to invite fresh and proper tenders. The petitioner there was a rate-payer and paid taxes, but there was nothing to show that he was a voter. It was contended that the petitioner had no right to maintain the application as he was not a person whose property, franchise or personal right would be injured by the acceptance of the contract. Chagla, C. J. pointed out that under Section 45 of the Specific Relief Act, a party must have some interest in property, franchise or personal right, the injury to which alone would entitle him to maintain a petition under that section. The rate-payer was undoubtedly interested in the application of the municipal funds both as a ratepayer who had actually contributed to that fund and also as a beneficiary who was entitled to the various benefits which accrued to the citizen by the application of that fund. If the municipal fund was proposed to be misapplied the rate-payer was a person whose property was injured within the meaning of Section 45 of the Specific Relief Act. The learned Chief Justice relied on the Irish decision, The Queen v. Drury, (1894) 2 Ir 489. Under the relevant law, the municipal bodies in Ireland were directed to be audited yearly by the auditor of accounts relating to the relief of the poor in the locality; and, by Section 12, any person aggrieved by the allowance, disallowance, or surcharge of any sum by such auditor could apply to the Queen's Bench for a writ of certiorari, and the Court, if it appeared that the auditor's decision was erroneous, could order the payment of such sum improperly allowed, disallowed or surcharged to the party entitled thereto by the party who ought to repay the same. A ratepayer applied for a writ of certiorari to quash certain allowances made by the auditor and also for a writ of mandamus to compel him to enforce the disallowances by recovering the amount of the same against whom they had been or should have been certified to be due. The point agitated was whether the rate-payer could make such an application and whether he was a person 'aggrieved', which alone could entitle him to make an application. O'Brien, C. J. held that a rate-payer was certainly a person aggrieved. He was specially and peculiarly aggrieved by having his money misapplied. It was held that the application was maintainable. Chagla, C. J, held that upon a review of the authorities it seemed clear to him that a ratepayer who had contributed to the rates was injured in his property within the meaning of Section 45, if the rates were misapplied or utilised contrary to the provisions of the law.

9. In my opinion, the position in law is as follows : In order to maintain an application for a writ of mandamus, as the petitioner has done in this case, there must be first a legal right and that lagal right must be affected. The legal right may be a right of property or a right of franchise. A right of franchise is a creature of statute. There is no common-law right of franchise. In this particular case, the petitioner has not got the right of franchise so far as this particular municipality is concerned. In this connection, one thing must be borne in mind. Previously, the qualification for being a voter as contained in Section 23(2) of the said Act was completely different. Under the said provision as it stood prior to the amendment in 1962, a person was entitled to be a voter if he attained the age of 21 years, was a citizen of India, had for a period of not less than 12 months preceding the application been a resident within the limits of the municipality or had for the said period been in occupation of a holding and carrying on any trade or profession within the limits of the municipality and either had during the financial year immediately preceding the year in which such election was held, paid municipal rates specified in Clauses (a), (b), (c) or (d) of Sub-section (1) of Section 23 or paid in respect of municipal fees and taxes for such financial year, an aggregate amount not less than the sum prescribed by the State Government in this behalf as a minimum for the municipality. There was provision also for being entitled to vote at the first general election held under the said Act and a person who paid rates or had been assessed to income-tax or had certain educational qualification nentioned therein could become a voter. By the said amendment of 1962 these qualifications have been changed. Now there is to be universal adult franchise, and the only two qualifications are that a person should be in the rolls of the corresponding Legislative Assembly and be a resident within the municipal area. Therefore, payments of rates and taxes or fees are not now to be regarded as qualifications for obtaining the franchise. Therefore, can it be said that a person who has no franchise right and whose franchise right has been expressly excluded by the law as it now stands, can still claim that there is any invasion of such a right The answer is obviously in the negative. The petitioner's complaint in this case is entirely confined to the franchise. He challenges the drawing up of the electoral rolls and the application is based upon it. The cases that have been cited namely the Bombay case and the Andhra Pradesh case can be clearly distinguished. In the Andhra Pradesh case, the applicant was a voter, in the Bombay case it does not appear whether the petitioner was a voter, but Section 45 of the Specific Relief Act expressly entitled a person aggrieved by an invasion of his property right, to make an application. Undoubtedly, a rate-payer contributes to the municipal funds. If it can be shown that the said fund was being misapplied then a cause-of-action may arise. In the present case, the petition does not mention the existence of any such fund nor is there any allegation that such fund is about to be misapplied. After all, a writ of mandamus must be based on an invasion of a legal right. That legal right must be specifically formulated in the petition and the invasion clearly set out. It is nowhere stated in the petition that the petitioner's property right was being affected or any allegation that any fund to which he contributed was being misapplied. There is not a single ground in paragraph 25 which mentions any such property right or any invasion thereof. In my opinion, the petitioner has not brought his application within the mischief of the decisions stated above which give a right to a rate-payer to maintain an application if his right to property is affected. The application as framed is not maintainable. However, as the points raised are of considerable public importance I do not intend to decide this application only on the preliminary point of maintainability. I will now proceed to deal with the objections raised. This is of course under the assumption that the petitioner is a person who has some right relating to the municipal franchise.

10. The first objection raised is that the electoral rolls have not been prepared in accordance with the law. I have already mentioned above the qualifications for voters and the procedure to be followed in the preparation and publication of the electoral roll. The former is governed by Section 23 of the said Act and the latter by the provisions of the said orders. I have also mentioned above that under the said orders, the preliminary electoral roll has to be drawn up on the basis of the electoral roll of the Legislative Assembly prepared under the Representation of the People Act, 1950 and an opportunity has to be given to the persons affected, by enabling them to make claims and objections. After the claims and objections are heard, the final electoral roll is published. What has been complained of in the petition is that the electoral roll for the election of commissioners of the said municipality was prepared on the basis of the Assembly Electoral Roll prepared in 1958 and modified upto 1962 and did not contain the name of all persons qualified to vote under the Bengal Municipal Act. It has been further stated that there was not sufficient publicity given to the electoral roll nor there was 'any intensive revision of the same'. It is said that there has been many omissions of names of persons in the electoral roll. These allegations have all been denied in the affidavit in opposition. It is not admitted that the name of any person entitled to vote has been omitted from the electoral roll. It is pointed out that the preliminary electoral roll was published in accordance with the provisions of law, and a large number of claims and objections were received and considered, and thereupon the final electoral roll was prepared. The petitioner, if he had the right of franchise could put forward any claim or objection in accordance with the law. It is denied that there was no intensive revision of the electoral roll. So far as the allegation that the preliminary roll has been prepared on the basis of the Assembly Electoral Roll is concerned, this is admitted. It is also admitted that a house-to-house check has not been made. The position with regard to that is as follows. The Assembly Electoral list was prepared under the Representation of the People Act, 1950 and since it was meant for an election to a very important body like the State Legislature, the Act and the rules framed under it provided a number of precautions. In fact, for preparing the Assembly list, a house-to-house check was in tact made and a variety of other precautions were taken. The municipal elections are now held on the same principle of universal adult franchise as are followed in elections to Parliament and the State Legislatures, Since the same list was taken to be the basis of the municipal election, it was not thought necessary to provide the same safeguards once again. Section 23(2), however, provides for two qualifications. The first is that a voter's name should be in the Assembly list and the second is that a person must be a 'resident' within the municipal area. In order to ensure the latter, it is necessary that an opportunity should be given to persons affected, to prefer claims and objections. This is considered to be sufficient, and a house-to-house check is not considered necessary. This is in accord with the Supreme Court decision, (S) : [1957]1SCR68 (Supra). For ensuring this, the State Government has promulgated the said order and under it, a preliminary electoral roll is prepared on the basis of the Assembly list and after entertaining claims and objections, a final electoral roll is prepared and published. This is subject to appeal under Section 529A of the said Act. Tinder the said order, claims and objections have to be entertained and heard in the presence of the parties, and it is only after deciding such claims and objections that the final electoral roll is drawn up and published. If all these operations are performed, it is to be presumed that the electoral roll that emerges is up-to-date, and correct. Since a legal procedure has been laid down, it must be followed if there is a challenge to the correctness of the electoral roll. If ft person has not availed himself of the remedy provided by law he cannot take collateral proceedings for the same purpose. In other words, the correctness of the preliminary electoral roll should be challenged by putting in claims and objections. If no claims and objections are put in the same cannot be remedied by making a writ application. In the present case, the case made out in the petition is that there has not been publication and 'intensive revision' with the result that the names of many persons have been left out It is denied that there has been no publication and no 'intensive revision'. These are after all questions of fact and at best, they are disputed questions of fact which cannot be decided in this jurisdiction. If by intensive checking it is meant that a house-to-house enquiry is necessary, then no such thing is possible because the form prescribed under the order does not require the address to be given, nor is it to be found anywhere in the Assembly list The next point taken is that the age of voters given in the electoral roll as finally published is not correct. In the said orders, form A is the prescribed form for the preliminary and final electoral roll One of the columns to be filled is the age. As stated above, the bails upon which the electoral rolls were prepared is the Assembly Electoral Roll of 1958 as revised upto 1962. The age as set out against the name of a voter is the age given in the Asiembly list, but there is a note given on each page of the roll to the effect that the age shown in the roll is the age that appears in the Assembly Electoral Roll, corrected upto 1962. The municipal roll in question was published in 1964. Therefore, the note appended clearly gives the information to persons interested that the age given is true upto 1962. In other words, all that has to be done is to add a couple of years to the age as shown in the roll. In my opinion, there is nothing inherently wrong In the preparation of the electoral roll of the municipality. Next, it is to be considered as to whether the Court should intervene at this stage. It is true that in the case of an election, the law creating the franchise and the rule regulating it must be strictly enforced. However, where an election has already taken place, it should not be lightly interfered with unless it it shown that there has been a material Infringement or violation of the Act or the rules which goes to the root of the matter. In this connection, reference has been made to the Punjab decision, (Supra). In that case, one of the defects found in the municipal electoral roll was that the same age had been incorported therein as was published and found in the Legislative Assembly Electoral Roll. The municipal electoral roll was prepared in August, 1959 and the Assembly Electoral Roll was corrected upto March, 1958. There was no note appended to the electoral roll stating that the age given was corrected upto March, 1958, so that the voters were likely to gather the impression that the age given was the age on the date that the municipal electoral roll was prepared. This was a wrong impression and consequently was found to be a defect in the municipal electoral roll. In the present case, however, there is such a note appended to every page of the electoral roll. In my opinion, this is not a defect for which election can be Interfered with. The third point taken is that there has been a violation of Section 20 of the said Act Section 20 provides that in the case of municipalities already in existence, the State Government may by notification divide any municipality into wards for the purpose of the election of commissioners and determine the number of commissioners to be elected from each such ward after considering all the views of the commissioners at a meeting. It is stated that the views of the commissioners at a meeting were not considered. I have already mentioned mat in the present case there were originally 14 wards. This was altered to 17 single-member wards for the purpose of election. Therefore, under Section 20 of the said Act the views of the commissioners at a meeting would have to be considered before such a notification was issued. It appears from the materials placed before me that views of the commissioners were, in fact, considered. What happened was that at the relevant time the municipality had been superseded and was being administered by an Administrator. Under the relevant provisions, an Administrator has all the powers of the commissioners and can do all that can be done by resolutions passed by the commissioners at a meeting. The Administrator did cause such a resolution to be passed, dated 28th July, 1962. On the 18th July, 1962 the State of West Bengal altered the number of commissioners from 14 to 17. In April, 1962, Government had intimated its desire that the municipalities in West Bengal should have single-member constituencies and election should be held on the basis of universal adult franchise. The Administrator accepted that policy and caused the said resolution to be passed. By that resolution, it was recommended that the municipality should be divided into 17 single-member wards and the boundary of each ward was fixed. This was communicated to the Government, who accepted the same. Therefore, not only was there a consultation, but the fact is that the original recommendation came from the commissioners at a meeting and this was accepted by the State Government. In my opinion, there has bten sufficient compliance with the provisions of Section 20 of the said Act. The next objection taken is that the number of commissioners was increased without complying with the provisions of Section 6(1)(i). I have already mentioned that under Section 6(1)(i) the State Government may by notification or by such other means as it may determine, declare its intention to alter the number of commissioners of a municipality. It if, however, stated in Clause (i) that this should be done in consideration inter alia of the increase or decrease of the population, income, number of voters and commercial and general importance cf the place. In reality, Section 6(1)(i) is to be read with Section 8(g). Section 6(1)(i) read with Section 8(g) gives right to the State Government to declare by notification its intention to alter the number of commissioners. When such a notification is issued, objections may be preferred under Section 7, by any inhabitant of the town or local area. After considering any such objection and after three months from the date of the publication of the notification, Government may by notification alter the number of commissioners. The notification under Section 6(1)(i) is Annexure X(1) to the affidavit in opposition filed by Sureshwar Sinha affirmed on the 16th March, 1964 and Annexure X(2) is a notification under Section 8(g). In these notifications, it is not stated as to what considerations moved the State Government to alter the number of commissioners. In other words, it is not stated as to whether the increase was found necessary as a result of an increase in the population or income, the number of voters or the commercial and general importance of the place. There is nothing in either Section 6(1)(i) or Section 8(g) which requires that the consideration must be stated in the notification itself. The question is one of fact. If the petitioner wished to challenge the notification on the ground that these considerations or any of them were absent or nonexistent, he should have stated so in the petition. There is, however, no such ground taken in the petition and the respondent had no opportunity to meet the same or to point out the consideration which moved the State Government to issue the notification. In my opinion, this point cannot be allowed to be agitated without taking a specific ground in the petition. The next point taken is that there has been a non-compliance with Form A of the said order, inasmuch as the name of the mother of each voter has not been set out in the electoral roll. It is true that in Form A the mother's name is to be given. In the Legislative Assembly list, it is not necessary to mention the mother's name. It is only necessary to mention the name of the father or the husband of a married woman. The mother's name is necessary only in the case of Illegitimate children. Since the municipal list has been prepared from the Assembly list and the form under the Representation of the People Act, 1950 does not require the name of the mother to be given, I do not know why the mother's name was included. But the complete answer is that the municipal list being based on the Assembly list, the mother's name is not necessary to be given in any case, because no such name appears in the Assembly list. These particulars are for the purpose of identification and it was never meant that where the name of the father or husband is given, still It was necessary to give the name of the mother. There is also no specific objection taken by the petitioner in this behalf in the grounds set out in the petition.

11. For the reasons abovementioned, the petitioner has failed to establish sufficient grounds for interference by this Court and the application is dismissed, the rule is discharged. Interim orders, if any, are vacated There will be no order as to costs.


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