1. This is a Rule issued upon the opposite parties to snow cause why appropriate writs should not be issued for the purpose of excluding 172 names from the Final Electoral Roll of the Jiaganj Azimganj Municipality in terms of the order passed by the District Magistrate, Murshidabad, on 18-10-1952, and why the holding of the election on the basis of the Final Electoral Roll, as published, should not be prohibited and for such further order or orders as to the Court may seem fit and proper.
2. The facts of this case are as follows: The petitioner is a resident of Begumganj Mohalla of Baluchar within the Jiaganj Azimganj Municipality in the District of Murshidabad. The opposite party No. 1 is the Chairman of the said Municipality. Under Section 21, Bengal Municipal Act (Act 15 of 1932) a committee consisting of the Chairman and two commissioners are appointed by the commissioners of the Municipality at a meeting held' for this purpose and this committee which is (according to the rules) known as the 'registering authority' prepares the Preliminary and Final Electoral Rolls in accordance with the provisions of the Act. In this particular case, the registering authority published the Preliminary Electoral Roll on 8-7-1952, and fixed 22-7-1952, as the date for preferring claims or objections. Certain claims and objections having been preferred, were heard and decided and the Final Electoral Roll was published on 6-9-1952.
On 20-9-1952, one Kamala Kanta Bhattacharjee preferred an appeal before the District Magistrate Murshidabad, under Section 529A of the Act. This was numbered MA. 11 of 1952. Five further appeals were filed, numbered MAs. 12 to 16 of 1952. On 26-9-1952, the District Magistrate called for the records and explanation, if any, and fixed the hearing on 9-10-1952. In the appeal filed by Kamala Kanta Bhattacharjee, namely, MA. 11 of 1952, it was urged that the names of 173 persons were wrongly included as they were not members of a joint family within the meaning of Section 23(5) (i) of the Act and that two names were wrongly included inasmuch as they were the owners of holdings in respect of which no municipal rates had been paid in terms of the Act. No notice was given to any of these 173 persons that the hearing had been fixed for 9-10-1952.
On 2-10-1952, the District Magistrate called for an explanation from the Chairman of the Municipality, the opposite party No. 1, and directed that the explanation should reach him by 6-10-1952. The memorandum containing this direction was received by the Chairman on 6th October, and he sent a wire asking for the time to be extended till the 8-10-1952. On the 8th he sent an explanation. The Chairman pointed out, amongst other things that these 173 persons had not been served with any notice of the proceedings. It appears that either on 12-10-1952, or on the 14th, the District Magistrate directed notices to be issued on 171 persons to show cause why they should not be excluded from the Electoral Roll and fixed 18-10-1952, for the hearing of the case. Whichever be the date of the order, it is remarkable that theDistrict Magistrate thought that they could be adequately served and that the parties served would be in a position to contest the proceedings within a period of 4 to 6 days.
3. It appears from the affidavits before me that with regard to most of the notices they were posted on 15th October and some of them reached the addressees on the 18th of October and some were delivered on the 10th, that is to say, after the hearing. The original covers of a number of letters were produced in Court and it is not denied that they were so delivered, although the learned Advocate for the petitioner commented on the fact as to how these letters came into possession of the petitioner. It appears that on 12-10-1952, the five appeals Nos. MAs. 12 to 16 of 1952 were allowed. As regards the 172 persons who were not served, it appears that at the hearing on 18-10-1952, 23 persons appeared and 15 persons addressed a representation to the District Magistrate, all of them objecting to the exclusion of the 172 names. They stated that the notices had not been served but they had come to know that an appeal had been preferred and so objected to the same. So far as the remaining persons are concerned, namely, 135 persons, it does appear that they had no proper notice that their names were going to be excluded from the Electoral Roll.
On 18-10-1952, the District Magistrate passed art order in MA. 11 of 1952 directing 172 names to be excluded from the Final Electoral Roll. So far as the order in MAs. 12 to 16 of 1952 is concerned, it was duly received by the Chairman and the amendment incorporated in the Final Electoral Roll, but with regard to the order dated 18-10-1952, in MA. 11 of 1952, the Chairman states that the order was received by him on 24-10-1952. 22-10-1952 was the date when, according to the Act and the rules, the Final Roll had to be published and was, in fact, published.
A great deal of trouble in this application centres round the question as to whether the Chairman did receive this order on or before the 22nd. The order was communicated by registered post. It appears that on 22-10-1952, it was delivered at Jiaganj from the window delivery to a sepoy said to be in the service of the opposite party No. 1 but was returned to the post office on 23rd and reposted to Azimganj where the Municipal Office is situate. It is really difficult to say without further evidence as to whether this was done honestly or as a device to delay the service of the order upon the Chairman. Be that as it may, the Final Electoral Roll was published on 22-10-1952, including the names of these 172 persons.
It appears that correspondence passed between the Chairman and the District Magistrate end the Chairman pointed out that there was a statutory period during which the Final Electoral Roll had to be published and there appears to be no provision in the Act or the rules framed thereunder enabling a second amended Final Electoral Roll to be published thereafter.
4. On 10-11-1952, the petitioner and six others wrote a letter to the Chairman to comply with the order of the District Magistrate. On 2-12-1952, there was an announcement that the general election of the Municipality would take place on 18-1-1953. At or about this time Kamala Kanta Bhattacharji who was the appellant in MA. 11 of 1952 made an application to this Court under Article 226 of the Constitution directing the Chairman to exclude from the Final Electoral Roll 172 names in terms of the order of the District Magistrate, Murshidabad, dated 18-10-1952.
A Rule was issued in that application by Bose, J. and was disposed of on 14-1-1953. The learned Judge inter-alia pointed out that District Magistrate in disposing of the appeal under Section 529A, Bengal Municipal Act was exercising a 'quasi' judicial function and a duty was therefore cast upon him to give a proper hearing to the persons sought to be affected by the order. In the view of the learned Judge, the 173 persons did not get sufficient and reasonable opportunity to be heard in that appeal and therefore he was not prepared to exercise his discretion under Article 226 of the Constitution by granting any of the reliefs asked for. Purtner, the learned Judge pointed out that some of the reliefs, sought for, were in respect of the duties cast upon the District Magistrate but the District Magistrate had not been made a party and as such no relief could be granted in respect of such matters. The Rule was discharged.
The petitioner then appealed and the appeal was heard by a Division Bench of this High Court (Appeal No. 84 of 1953) and was disposed of on 17-6-1953. The learned Judges held that the application could not proceed in the absence of the District Magistrate, who was a necessary party and was not impleaded. In view of this the learned Judges did not think it necessary to deal with the other points raised in the appeal. The appeal was accordingly dismissed and there was no order passed in the cross-objection.
5. So far as the petitioner is concerned, it will be observed that he took no steps to challenge the Electoral Roll which had been published as early as 6-9-1952, by way Of an appeal or otherwise until 27-2-1953, when he made this application and a Rule was issued. When this application came up for hearing on the 24th of March, I was told that Appeal No. 84 of 1953 mentioned above was still pending and involved the same facts. Mr. Dutt appearing on behalf of the opposite parties, pointed out that if the election was not allowed to proceed at all, various difficulties would arise inasmuch as if the period mentioned in Section 58 of the said Act expired, this election could (not?) be held. Of course, I did not decide that point, but so far as I remember the petitioner did not object to the course that was followed, namely that the election should proceed but the opposite parties were restrained from publishing the results of the election until further orders. Quite obviously, it was not right that I should have decided the point at that time when the precise point was being considered by the Appeal Court.
It is, of course, to be observed that so far as this application is concerned, the District Magistrate has been made a party and has appeared before me. But although this difficulty is out of the way, the application suffers from another drawback. The main relief asked for in this application is for the issue of a writ in the nature of Mandamus upon opposite party No. 1 commanding him to exclude from the Final Electoral Roll 172 names in terms of the order of the District Magistrate, Murshidabad, in MA. 11 of 1952. This relief must involve three things : firstly, the publication already made will have to be cancelled secondly, the Final Electoral Roll will have to be amended, and thirdly, the amended Final Electoral Roll will have to be published. The question is as to whether it is sufficient to make the Chairman a party in order to carry out these three things. Under Section 21 of the Act, the Electoral Roll has to be prepared and published by a committee consisting of the Chairman and two commissioners. This is known as the 'registering authority' in the rules.
6. The relevant rules with regard to the preparation and publication of the Electoral Roll are Rules 3 to 16. It will appear therefrom that the duties in connection therewith devoive not upon the Chairman alone but upon the registering authority. Tne scheme appears to be roughly as follows : The registering authority prepares a Preliminary Electoral Roll and gives public notice thereof. Claims and objections are thereafter received and determined by the registering authority. Then comes Section 529A(i) which runs as follows:
'529A. (1) Any person aggrieved by any entry in or omission from the final electoral roil publish-ed under Section 21 may, within fifteen days from the date of publication of such roll, appeal to the District magistrate & if the District Magistrate on such appeal directs any modification or addition to be made in such roll, the roll shall be amended accordingly and the amendment so made shall be published in the same manner as the final roll.'
Rule 15A of the Rules framed under the Act runsas follows:
'Rule 15A. (1) The District Magistrate shall dispose of appeals, if any, received by him under Section 529A of the Act, by the 21st day after the last day of filing such appeals and forthwith communicate his decision to the Chairman of the Municipality.
(2) Not less than 45 days before the election day, the amendments, if any, made by the District Magistrate in the Final Electoral Roll, shall be published in the same manner as the Final Roll.'
7. There can be no question that it is the dutyof the registering authority to amend the FinalElectoral Roll and publish the same in the samemanner as the final Roll that had been published.This appears from Rule 15 which is as follows:
'15. (1) The Registering authority shall thencause the roll to be amended in accordance withany orders passed under Rule 14 and shall endorsethe amendments in token that this has beendone.
(2) The roll thus amended shall be the Final Electoral Roll, and after being printed and, if necessary, renumbered serially, not less than 90 days 'before the election, day, be published in the same manner as the Preliminary Electoral Roll.'
8. This rule however clearly shows that the amendment has to be carried out by the registering authority, although the District Magistrate communicates the order to the Chairman. It is the registering authority which must publish the Final Electoral Roll as amended. How then is it possible to order the Chairman alone to amend or publish the Final Electoral Roll when the proper body to do so would be the committee or the registering authority? Suppose this Court ordered the Chairman to amend and re-publish the Final Electoral Roll, but the order will not be binding on the two other commissioners who are members of the committee and are not before me.
9. In my opinion, the difficulties faced by the applicant in the application disposed of by Bose, J. are not obviated in this application because of the fact that the District Magistrate is a party. The application still suffers from defect of parties.
10. The second point is the point which has been decided on the same facts by my learned brother Bose, J. There can be no doubt that in respect of the 135 persons the order dated 18-10-1952, was passed 'ex parte'. It is argued by thelearned Advocate on behalf of the petitioner that none of these persons has come forward to dispute the order. But Mr. Dutt rightly points out that none of these persons have been made a party to this application. It appears that some of them have issued lawyers' notices although no actual legal proceedings may have yet been commenced. The position is this: Applications under Article 226 of the Constitution invoke the equitable jurisdiction of the Court and it is entirely discretionary as to whether the Court should grant any relief. This application seeks to uphold the order of the District Magistrate taking away the right of franchise of a large number of persons who have had no opportunity of being heard and I agree with Bose, J. that this Court ought not to exercise its discretion in support of such an action.
11. In addition to the two reasons set out above, Mr. Dutt has also raised a number of objections. Firstly, he points out that the petitioner is himself a voter but he had taken no steps whatsoever to challenge the Final Electoral Roll as published by the registering authority. In fact, he did not take any steps at all for a long period of time and without preferring any appeal has come up straight to this Court. There is a good deal of force in this objection save and except the fact that if the order passed by the District Magistrate in appeal was a valid order and free from all blemish, I do not think that it would be right to say that the petitioner could not take advantage of it and say that the amendment should have been carried out whether the order of amendment is procured at his instance or not.
12. The next objection is that some of the persons affected are also voters in other wards and in fact in two of these wards commissioners have already been elected uncontested. Mr. Dutt argues that the result of any order made on this Rule would affect the election of all the wards although the petitioner is not interested in the result of the election so far as the other wards are concerned. If however the order of the District Magistrate was free from blemish, an election held in pursuance of a faulty procedure in contravention of the Act and the rules cannot be supported even if the result means hardship to others. It is however quite arguable that in view of the election having been held, all persons elected not only in ward No. 2 but other wards, are parties interested and should be given notice of this application. In view, however, of my finding on the first two points it is not necessary to consider this.
13. It is further argued that the publication in the official Gazette is under Section 50 and this is done by the State Government which again is not a party. In view of my findings on the first two points, it is not necessary to consider this either.
14. For the reasons stated above, I do not think that upon this application as framed I can or ought to interfere.
15. The rule is accordingly discharged. The interim order is vacated save and except that the order staying the publication of the results of the election will be further stayed up till 10-1-1954, in order to enable the petitioner to obtain appropriate orders from the Appeal Court in case there is any appeal preferred against this decision. There will be no order as to costs.