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Subodh Kumar Bose Vs. Commissioner of Krishnanagar Municipality - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 67 of 1956
Judge
Reported inAIR1956Cal393
ActsBengal Municipal Act, 1932 - Section 529A; ;Code of Civil Procedure (CPC) , 1908 - Section 9; ;Bengal Municipal Rules - Rule 8; ;Constitution of India - Article 226
AppellantSubodh Kumar Bose
RespondentCommissioner of Krishnanagar Municipality
Appellant AdvocateKashi Kanta Maitra, Adv.
Respondent AdvocateSatya Priya Ghosh, Adv. (for No. 2), ;Jnanendra Nath Mukherjee, Adv. (for Nos. 1, 2 and 4), ;N.C. Chakravarty and ;D.N. Basu, Adv. (for No. 3)
DispositionApplication dismissed
Excerpt:
- .....529a is as follows:'1(1) any person aggrieved by any entry in or omission from the final electoral roll published under section 21 may, within fifteen days from the date of publication of such roll, appeal to the district magistrate and 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. (2) no entry in or omission from a final electoral roll published under section 21 shall be liable to be called in question otherwise than by such appeal.'2. in the petition of appeal, the petitioner stated that being a resident of a house situate in krishnanagar he had the requisite qualification and was entitled to be a voter under.....
Judgment:
ORDER

Sinha, J.

1. In this case the point involved is about the interpretation of Section 529A, Bengal Municipal Act, 1932. The point is small but of some importance. It arises in the following way. The petitioner is a resident of the town of Krishnanagar where he was previously living in a rented house at No. 10-A Dhaipara Lane situate in Ward No, 1 within the limits of Krishnanagar Municipality and from which he removed to his own house in Amiruddin Punjabi Lane also in Ward No. 1. On or about 17-5-1955 respondent 3, the District Magistrate of Wadia, fixed the next general election of the said Municipality to be held on 6-3-1956. This notice was duly published on 25-5-1955, both by hanging up in prominent places as well as by beat of drums. Thereafter on 30-5-1955, the Registering Authority was appointed to prepare the voters' list. On 31-8-1955, the said Authority published the preliminary electoral roll. This was done by fixing copies in the different Wards in prominent places & by proclamation throughout the Municipality. A copy was hung up on the notice Board of the Bar Association of which the petitioner is a practising member and which is within the precincts of the Court where he pursues his profession as a pleader. On the same day the Chairman invited members of the public to file claim petitions in cases of omissions or inaccuracies in the preliminary electoral roll. I am informed that a very large number of objections were filed and were dealt with according to law. The final electoral roll was then prepared. The petitioner's name does not occur in either the preliminary or the final electoral roll. On 15-12-1955, the petitioner made an application before the District Magistrate, Nadia, under Section 529A of the said Act. Section 529A is as follows:

'1(1) Any person aggrieved by any entry in or omission from the final electoral roll published under Section 21 may, within fifteen days from the date of publication of such roll, appeal to the District Magistrate and 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.

(2) No entry in or omission from a final electoral roll published under Section 21 shall be liable to be called in question otherwise than by such appeal.'

2. In the petition of appeal, the petitioner stated that being a resident of a house situate in Krishnanagar he had the requisite qualification and was entitled to be a voter under the Municipal law, but that in the electoral roll published, his name did not appear. It will be observed that in the petition he did not make out any ground that the provisions as to publication of notices etc., under the said Act and the Rules framed thereunder had not been made properly or in accordance with law. He simply stated that he had the requisite qualification and his name did not appear in the electoral roll and that he was highly prejudiced thereby. He prayed that the Municipality may be directed to enlist his name in the electoral roll so that he might exercise his vote. A certified copy of this petition was produced at the hearing and I have directed that it may be marked as an exhibit and kept as of record. The learned District Magistrate heard the appeal and passed his order on 30-12-1955. He pointed out that the petitioner did not avail himself of Rule 8 of the Election Rules and did not move the Registering Authority for inserting his name in the final roll. He then proceeded to say as follows:

'Where therefore a party fails to apply for relief in time under Rule 8, I cannot entertain his petition under Section 529A. The petition is accordingly rejected.'

3. This Rule was issued by Bose, J., on 9-1-1956, calling upon the opposite parties to show cause why a Writ in the nature of Certiorari should not issue quashing and/or setting aside the order as also the proceedings in appeal being Miscellaneous Case No. 147 of 1955-56 complained of in the petition, and for other relief.

4. The position therefore is as follows: The petitioner did not follow the procedure laid down, in the said Act or the Rules framed thereunder, for challenging the accuracy of the preliminary or the final electoral roll, but straightway came up before the learned Magistrate under Section 529A of the said Act. Before the learned Magistrate he did not give any reason why he had not complied with the provisions of the Act or the Rules. The ground upon which he based hia appeal was that he had the requisite qualification but his name had not been included in the electoral roll. Two questions arise out of this. The first question is whether the learned Magistrate was right in holding that inasmuch as the petitioner had not proceeded under Rule 8 of the Rules framed under the Act, he had no Jurisdiction to entertain the appeal. The second question is as to whether, even if the appeal was entertained, the Magistrate could have granted any relief. The second question may be formulated in a slightly different manner. The Bengal Municipal Act provides in Section 21 as to how the electoral roll has to be prepared and published. The relevant provinsion is as follows;

'21. (I):-- A Committee consisting of the Chairman and two Commissioners to be appointed by the Commissioners at a meeting for this purpose shall prepare and publish at the time and in the manner prescribed an electoral roll showing tile names of persons qualified to vote.

(2) Every person whose name appears in the final electoral roll published under this section shall, so long as such roll remains in force, be entitled to vote at an election and no person whose name does not appear in such roll shall vote at an election'.

5. Section 27 of the Act lays down that the manner of holding elections shall be prescribed by rules made under the Act. Section 65 lays down that the State Government may make rules to regulate and determine the preparation and revision of the electoral roll. Therefore the electoral roll will have to be prepared and published at the time and in the manner laid down by the Rules which are to be framed under the Act. Such Rules have been framed. In the Rules, an elaborate procedure has been laid down to provide for every stage of the election including the preparation and revision of the electoral roll. It is obvious that the first thing to do in the conduct of an election is to lay down the time-schedule. Since the operation of an election involves a large number of persons, no election could be held unless a time-schedule is laid down and strictly adhered to. The Rules lay down as to how the preliminary electoral roll has to be prepared, how it is to be published, how objections are to be made and how such objections are to be heard. Rule 8 deals with objections preferred against any entry or omission made by the Registering Authority in, respect of the preliminary electoral roll. Such objection has to be preferred within 15 days of its publication. There are then provisions for hearing the objections. Upon the result of the objections, depends the preparation of the final electoral roll. According to Rule 15, the roll amended by any order passed by the Registering Authority shall be the final electoral roll. There are then provisions for the publication of the final electoral roll. Then we come to the provisions of Section 529A of the Act, which has been set put above. The petitioner here did not comply with any of these Rules. He did not take any steps to have his name put in the preliminary electoral roll. He did not prefer any objection when his name was not included therein. When he came to prefer the appeal under Section 529A before the learned Magistrate, he propounded no reason why his appeal should be allowed. Therefore this question resolves itself into a very short compass. Is it permissible for a voter in a municipal election to abstain from taking the steps that are required under the Rules and then straightway come before the appellate authority, namely, the District Magistrate and succeed in altering or amending The final electoral roll simply on the ground that he was a voter duly qualified to have his name entered in such roll?

6. These being the two questions, I shall deal with them one by one. With regard to the first question, namely, the question of jurisdiction or the learned Magistrate to hear the appeal under Section 529A, I am of the opinion that the learned Magistrate was clearly in error in holding that he could not 'entertain' the petition under Section 529A because the petitioner had not previously proceeded under Rule 8. Section 529A does not make his jurisdiction conditional upon any, other previous application being made anywhere else. The right of appeal having been given by a section in the Act, could not be affected or taken away by the Rules, in using the word 'entertain' the learned Magistrate committed an error because that could only mean that he was doubting his own jurisdiction. One can think of many circumstances under which the learned Magistrate could grant relief, even if there was no application under Rule 8. For example supposing the notice fixing the election or the preliminary electoral roll was not properly published according to the Rules, in that case, the petitioner would not be in a position to know about the fact that an election had been fixed on a particular date or that the preliminary electoral roll had been made or published. He would therefore not have an adequate opportunity of making objections under Rule 8, if he came to know of these facts upon a date which would not make it possible for him to approach the Registering Authority within the specified time. In such a case, the learned Magistrate could grant a relief, and it is erroneous to say that his jurisdiction is conditional upon an application being made under Rule 8. It will however be observed that in this case the petitioner never made out any ground before the learned Magistrate for amending the final electoral roll. Even here before me, he says that as he was busy shifting from the rented house to his newly constructed one, he could not make any application objecting to the publication of the preliminary electoral roll or verify it to ascertain if his name was duly entered in the said roll. He also says that he had no knowledge or information as to the constitution of the Registering Authority etc., and as to when and how the preliminary electoral roll was published. In the affidavit in reply the position has been sought to be further improved by stating that the publication was defective and that several pleaders of the Bar Association did not see any such notice. I do not think that I should take any notice of grounds which had not been advanced before the learned District Magistrate.

7. I now come to the second question. Assuming that the learned Magistrate was technically in error as to his own jurisdiction, the question is as to what he could do upon the facts of this case. The learned Advocate appearing on behalf of the petitioner says that he would interpret Section 529-A to mean that his client has an un-fettered right to file an appeal under Section 529-A and also to allege therein for the first time that he was a qualified voter, and that the learned Magistrate had ample power to deal with that aspect of the matter and if he found that he was a qualified voter, the appellate authority, namely, the District Magistrate, was bound to order an amendment of the final electoral roll. He argues that the section provides an appeal against any entry or omission in the final electoral roll and not against the orders of the Registering Authority. I am unable to accept this argument. I have already said that the learned Magistrate was en-titled to deal with the appeal, but he was also bound to consider as to whether the final electoral roll which had been published under Section 21, was published in accordance therewith. As I have already mentioned, Section 21 of the said Act requires an electoral roll to be prepared and published in the manner prescribed. The manner in, which it is to be prepared and published has been prescribed. If a person entitled to have his name put into such an electoral roll, fails to take advantage of the provisions of the Act and the Rules, he is himself to blame. If a person is too busy to keep information relating to the exercise of his own right of franchise, he cannot legitimately make a grievance that such rights have been affected. An election requires a time-schedule to be carefully prepared and adhered to, in the interest of the general body of the electorate. It cannot be permitted that an individual ratepayer, or a person qualified to vote, should be entitled to upset the entire time-schedule at any time or in any manner that he likes. The Rules have been framed in order to give effect to the provisions of the Act and must be obeyed. Of course if the provisions of the Rules are contrary to the provisions of the Act, to that extent they become illegal. We are proceeding on the assumption that the Rules have been properly framed. It would be absurd to contemplate that a person could be allowed to completely ignore the Rules relating to the framing of the electoral rolls and straightway come to the appellate authority to have the entire electoral roll, so elaborately prepared and so carefully got up, upset, merely because he was too preoccupied with other things, to comply with such Rules. In that event, the Rules become entirely nugatory and nobody need follow the Rules, and one could always come up to the District Magistrate at the last moment to have the electoral roll upset and to have his name entered therein. If this were permitted, the District Magistrate would soon be converted into the Registering Authority, and compelled to exercise the functions thereof. In my opinion, that is not permissible. Therefore, on the facts of this case, the learned Magistrate was bound to consider as to whether the Rules have been followed. He has already held, and it is admitted, that the Rules have not been followed. Under such circumstances, it is not open to the District Magistrate to order an amendment of the final electoral roll which has been prepared and published according to the Rules as prescribed, at the instance of a prospective voter who has not himself cared to follow the Rules as prescribed and thus finds himself in the wilderness. That being the case, it would be utterly futile for me to set aside the order of the learned Magistrate and send the matter back to him, because the only result that will follow is that the appeal must be dismissed. It is wellknown that this Court does not issue a high prerogative Writ which is bound to fail or would be ineffective.

8. The result is that I must dismiss the application. The Rule is discharged but I makeno order as to costs.


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