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Amulya Ratan Karmakar and ors. Vs. the Commissioner of Basirhat Municipality and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Revision No. 722 of 1959
Judge
Reported inAIR1959Cal548,63CWN541
ActsConstitution of India - Articles 32 and 226; ;Bengal Municipal Act, 1932 - Sections 44 and 529A; ;Bengal Municipal Rules, 1932 - Rules 3 and 8
AppellantAmulya Ratan Karmakar and ors.
RespondentThe Commissioner of Basirhat Municipality and ors.
Appellant AdvocateChittatosh Mukherjee, Adv.
Respondent AdvocateNani Coomar Chakrabarty and ;Archana Sen Gupta, Advs.
Cases ReferredR. A. Singh v. Atmaram
Excerpt:
- .....and to regulate and determine the preparation, publication and revision of the electoral roll. rules have been framed by government in exercise of the powers given by section 44 of the act; the election rules provide that the registering authority shall prepare in form a appended to the rules, a preliminary electoral roll for the municipality containing the names of all persons qualified to vote under the said act and after causing it to be printed shall, not less than 150 days before the day fixed for general election under section 24 of the said act, publish it. under rule 8 of the election rules, any person who objects to a name entered therein, or who claims that a name has been omitted, can make an application before the registering authority for rectification of the.....
Judgment:
ORDER

Sinha, J.

1. The petitioners are rate-payers of the Basirhat Municipality. The petitioner No. 2 is a sitting Commissioner and has also stood as a candidate for election as Commissioner of the said municipality at the next general election. The respondent No. 1 are the Commissioners of the Basirhat Municipality. The respondents Nos. 2 to 4 are members of the committee appointed under Section 21, of the Bengal Municipal Act, 1932 called the 'Registering authority.' Section 21 of the said Act lays down that 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 the names of persons qualified to vote. Every person whose name appears in the final Electoral Roll published under this section, so long as such Roll remains in force, is entitled to vote at an election and no person whose name does not appear in such Roll can vote at an election. It is provided that when a Municipality has been divided into wards the Electoral Roll shall be divided into separate lists for each ward. The Electoral Roll as published remains in force till the publication of a fresh Electoral Roll. Finally, it is provided that the preliminary and final Electoral Rolls shall be printed and be made available for purchase by any inhabitant of a Municipality, at a reasonable price to be fixed by the Commissioners at a meeting. The word 'prescribed' means as prescribed by rules framed under the Act. Section 44 of the Act gives power to the State Government to make rules for the purpose of election of commissioners, and to regulate and determine the preparation, publication and revision of the Electoral Roll. Rules have been framed by Government in exercise of the powers given by Section 44 of the Act; The election rules provide that the registering authority shall prepare in form A appended to the rules, a preliminary Electoral Roll for the Municipality containing the names of all persons qualified to vote under the said Act and after causing it to be printed shall, not less than 150 days before the day fixed for general election under Section 24 of the said Act, publish it. Under Rule 8 of the election rules, any person who objects to a name entered therein, or who claims that a name has been omitted, can make an application before the registering authority for rectification of the preliminary Electoral Roll. After these objections are dealt with, the final Electoral Roll is published. Under Section 529A of the said Act, any person aggrieved by any entry in or omission from, the final Electoral Roll published under Section 21 may, within 15 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. I have already stated above that under Section 21 of the Act, the Electoral Roll shall be prepared and published 'in the manner prescribed'. I have also mentioned above that by the election rules the manner has been prescribed namely, that it must be in form A appended to the rules. A copy of form A is annexed to the petition and marked with letter 'A'. In the said form there are 9 columns, and the registering authority has to prepare the preliminary and final Electoral Roll by filling or causing to be filled, the said 9 columns. These columns are headed as Follows :

'1) Serial No.

2) No. in assessment list

3) Name of voter

4) Father's name, or in the case of female voter, the husband's name

5) Age

6) Period of residence

7) Address

8) Particulars of qualification

9) Remarks'

2. In or about 25-6-1958, the Registering authority in this particular Municipality, published a preliminary Electoral Roll of the said Municipality. Objection was immediately made to the form in which the preliminary Electoral Roll as a whole had been prepared. It was pointed out that the preliminary Electoral Roll was not prepared in accordance with form A. The age of the voters had not been given. In many cases columns regarding the father's husband's names had not been filled, or filled up with the remark 'not known'. It was also pointed out that throughout the roll, the addresses of the voters were not given. No notice was taken of such objection and the final Electoral Roll was published on or about 23-8-1958. The registering authority prepared the final Electoral Roll in the same manner, with the same defects as the preliminary Electoral Roll. Against the final Electoral Roll also objection was taken, but with no effect. The petitioners have now made an application to this Court stating that the preliminary and final Electoral Rolls that have been published are not in accordance with law and therefore, the ensuing general election should not be allowed to proceed without a proper Electoral Roll being prepared and published in accordance with law. I might mention here that the next General election is scheduled to be held on the 29th March next. The respondents have not filed any affidavit, but Mr. Chakraborty appearing on their behalf has stated that the Electoral Rolls were there and it was for the Court to judge the validity of the same by looking at them, and that the filing of affidavits would not improve matters. It was agreed between the parties on 17-3-1959 that the application would proceed upon a consideration of the certified copies of the final Electoral Rolls which have been produced. The first thing to be determined is as to whether in view of Rule 8 of the election rules, and Section 529A of the Act, this application is maintainable. As I have mentioned above, Rule 8 of the election rules enables a party interested to challenge the entry of a name in the preliminary Electoral Roll, or any omission therefrom Similarly, Section 529A of the Act enables any person aggrieved by an entry in or omission from the final Electoral Roll to appeal to the District Magistrate for modification of the same. The principle is well-established that the right of franchise created by an Act is governed by the provisions of the Act, and if the Act creating the franchise provides a remedy, then that remedy must be followed, at least in the first instance, before invoking the jurisdiction of this Court. Therefore, if the complaint that has been made in this application could have been the subject matter of an application under Rule 8 of the election rules or Section 529A of the Act, then this application would fail. In my opinion however, neither Rule 8 nor Section 529A is appropriate for this purpose, and cannot provide a complete remedy for the complaint that has now been made. The petitioners are not objecting to the Electoral Rolls on the ground that their own names have not been included therein or that any particular name included therein should be expunged. The grievance is regarding the manner in which these Electoral Rolls have been framed. In other words, the objection -is to the Electoral Roll as a whole and not to any particular entry therein. It is alleged that the so-called Final Electoral Roll is not an Electoral Roll at all. In my opinion, such a matter does not come within the scope of either Rule 8 of the election rules or Section 529A of the Act. Since the Registering authority is bound to prepare the Electoral Roll in accordance with the provisions of the Act and the rules, an application lies, if there is any violation thereof, to compel the Registering authority to act according to law.

3. Before I proceed to consider the next objection, namely as to whether these provisions are mandatory or directory, I will have to deal with the nature of the defects that are patent in the Electoral Rolls that have been prepared. Before me, certified copies of the final Electoral Rolls have been produced. It is not disputed that the preliminary Electoral Roll had also been prepared in the same manner. I direct that the copies produced should be marked as Exhibit 1 in this case and placed in the record. Coming to the Final Electoral Rolls, it is found that with regard to column 1, the serial numbers have been correctly set out. There is no complaint about this. The second column is also correctly entered, because against each name, the number in the assessment list has been mentioned. The third column, namely the name of the voters has been correctly filled up. When I say this, it must be remembered that in this application we are not concerned with the correctness of any particular name being entered or excluded from the list. Such a complaint would be within the scope of Rule 8 of the election rules or Section 529A of the Act. Coming now to the 4th column, we find that in some cases the father's name and in the case of females, the husband's name has been given. In numerous cases however, the word 'not known' is entered, and in number of other cases, for example, in serial Nos. 15, 41, 245, 485, 495, 513, 514 530,531, 578, 579 of Ward No. 8, this column is left absolutely blank. Coming to the 5th column, it is found that the correct age of no person in the list is mentioned. Instead, all of them have been declared to be 'more than 21 years of age'. Coming to the 6th column, which requires the period of residence to be mentioned, no particular period is mentioned with regard to any entry, but there is a general entry against all the names to the effect that the persons whose names have been entered have been residing within the jurisdiction of the Municipality for a period of more than 1 year. Against the 7th column there is no particular address given excepting a general entry in respect of each ward. For example, in ward No. 4 the address of all the persons has been declared to be 'Basirhat'. Similarly in ward No. 5 all the residents have the same address namely 'Basirhat' So far as column 8 is concerned, it is stated that the voter pays rates or has an educational qualification, Column 9 has been left entirely blank.

4. The question is whether there has been a sufficient compliance with the Act and the rules. As I have stated above, under Section 21 of the Act, the Electoral Rolls are to be prepared in the manner prescribed. Rules have been prescribed and under Rule 3 of the Election Rules, the Electoral Rolls must be prepared in form A, and form A requires that certain particulars should be given. The question is as to whether the Electoral Rolls have been prepared according to form A and whether the necessary particulars have been set out therein. In order to decide this question, it is necessary to consider as to the underlying reason why these particulars are at all required to be set out in the Electoral Rolls. There must be an object and a purpose in setting out certain particulars which are required to be set out. The primary reason for setting out these particulars in the Electoral Rolls is the identification of the voter. This identification is necessary for various reasons. Each and every resident within the jurisdiction of a municipality is not entitled to vote at an election. The right of franchise, which has been given under the Act, is not given to every such person. In order that a person shall be entitled to vote at an election of commissioners in any municipality, he must have certain qualifications and these qualifications are set out in Section 23 of the Act. The qualification may relate to age, period of residence, property or education. One qualification is that a voter must have attained the age of 21 years. Another qualification is that he has for a period of not less than 12 months immediately preceding such election been residing within the limits of the municipality. Then there are other qualifications, namely the payment of municipal rates, or certain educational qualifications mentioned and so on. There can be no doubt that the primary object of publishing a list of voters is to collect in one place, the names of all persons who are qualified to be voters and set out all the particulars necessary to identify them and to show how they are qualified to vote at an election of commissioners, Let us now examine the Final Electoral Roll a little more closely. It has been stated that all the entries in the Roll are of persons more than 21 years of age, and that they have been residing within the jurisdiction of a municipality for over 1 year. The headings of column 5 and 6, show that the age and length of residence of the voter within the jurisdiction of the municipality should be stated and not whether the provisions of Section 23 (2) (i) or (iii) have been complied with. The heading in column 8 requires the necessary qualifications to be shown as would entitle a person to become a voter. Most of the entries under this column show that the voter is a payer of rates. This however is an incomplete information.

5. Section 23 (2) (iii) (a) speaks about payment of municipal rates under Clauses (a), (b), (c) or (d) of Sub-section (1) of Section 123. Without knowing the kind of rate that the voter actually paid it would be impossible to check up the correctness of the entry.

6. There can be no doubt that the Electoral Roll must furnish necessary particulars to show what qualifications a voter has, so as to entitle him to be in the voter's list. But is it the only reason for furnishing such particulars? If this was the only object of making the entries in the Roll, then there was no necessity of mentioning the father's name of the voter or in the case of female voters the name of the husband. Nor was it necessary to give the addresses of the voters. The obvious object of giving these particulars is to ensure the identification of the voter. This identification is required for various purposes, An intending candidate who is going to stand in an election, for being elected as a Commissioner, must have a list of voters from which he can identify each voter so as to be able to approach him for the purpose of procuring his vote. Then again, identification of the voter is necessary, if at the time of polling, any objection is to be made. There may be impersonation or false voting. Unless a voter can be identified from the Electoral Roll, no challenge can be made. Then again, I have already stated that the Act and the Rules contemplate objections to be made with regard to the entry of a name in the Electoral Roll or in respect of an omission therefrom. If the requisite particulars are not there to identify an entry beyond doubt, no objection can be made, because it cannot be clearly established as to whether a name entered has been properly entered or not or whether a name has been really omitted or not I have mentioned above that with regard to the 4th column, in numerous cases it is stated that the voter's father's name is 'not known'. It is certainly possible to argue that in spite of all possible diligence it might not be possible to ascertain the name of the father or the husband in the ease of each voter on the list; There is however, nothing to show that any such thing has happened in this case. In such a case, there would have been an entry in the remark column to the effect that the names could not be ascertained in spite of enquiry. But even assuming that this land of entry is permitted, there can be no excuse for totally omitting to make any entry in column 4 in the case of numerous persons in the list. The very fact that in some cases the entry 'not known' is made and in other cases the entries are blank, shows that there is a difference between the two. Assuming that in the case of entries where, 'not known' is entered, due enquiries were made and the particulars could not be discovered, it must equally be assumed that such is not the case where the column is left blank. In a case where the column is left blank, it is evident that no attempt whatsoever has been made to obtain the particulars necessary to be entered in this column. Coming to column 5, I do not think that the object was merely to discover whether the age qualification as contained in Section 23 (2) (i), has been satisfied The age of a person is extremely necessary for the purpose of identification. There may be more than one person of the same name in a ward, one of whom may be young and the other old. If the age is given, it would be easy to identify the person. But otherwise identification would be difficult. I do not suggestthat it is necessary to make searching enquiries aboutthe correct age of each and every voter. But if it isnecessary in law to give the particular, it is necessary to make some enquiry and at least to give anapproximate figure, or such information as can reasonably be gathered. When we come to the 7thcolumn, we find that there has really been no attemptto give the address of the voter. To say that in theBasirhat Municipality one lives in Basirhat, is to giveno information at all. Of course it is not to be expected that in a mofussil town the same kind ofparticulars can be given as in a presidency town likeCalcutta. There may or may not be street addresses ornumbers of municipal premises. But surely some kindof address cap be given which would enable one toidentify the residence of the voter. There must beeither a holding number or premises number or mahalla or some such identifying description whichwould fix the particular place where the voter resides. If there are more than one Voter of the samename, and if in both cases the father's name is blank,and no particulars of age is given, and in both casesthe address is 'Basirhat', then identification is impossible.

7. Before I proceed further, I will shortly refer to a few decisions. The first is a Supreme Court decision, Rattan Anmol Singh v. Atmaram, : [1955]1SCR481 . The case was under the Representation of the People Act, 1951. Under Section 33(1) of the said Act, each nomination paper is to be 'subscribed' by a proposer and a seconder. Where the proposer or the seconder was illiterate, and so placed his thumb-mark instead of his signature it is necessary to attest the same. The question was whether certain thumb marks, without attestation, could be accepted as valid. It was held that there must be a strict compliance with the Act and without attestation, a thumb-mark could not be accepted. While delivering judgment, Bose J. mentioned the fact that the question was whether attestation was a mere 'technical or unsubstantial requirement'. He held that where the law enjoined observance of a particular formality, it could not be disregarded and must be complied with in substance. The learned Judge further held that the substance of the matter wag that the returning officer should be satisfied about the identity of the person making a mark, and the provision of law as to attestation was necessary to be complied with for such identification. The next case to be considered is another Supreme Court decision, Pratap Singh v. Shri Krishna Gupta, : [1955]2SCR1029 . This was a case under the Central Provinces and Berar Municipality Act 1922. The appellant there was a candidate for the office of the President of a Municipal Committee. Nomination was required to be made in forms supplied by the Municipal Committee. Under the old rules, candidates were required to mention their caste. In July 1949 however, the rules were changed, and instead of caste, the occupation had to be entered. But in the nomination papers that were handed to intending candidates, there was a column as regards caste but none as regards occupation. Many candidates gave their caste and only one candidate struck out the word 'caste' and gave his 'occupation'. The question was as to whether the nomination forms of those who mentioned their 'caste' and not their 'occupation' should be declared invalid. The High Court, referring to the Supreme Court decision in R. A. Singh v. Atmaram (Supra) held that the failure to comply with the provisions of the rules which required the occupation to be mentioned, was fatal and the nomination papers should be rejected, Bose J. said that in determining such matters a tendency towards technicality should be deprecated. It was the substance that counts and must take precedence over mere formality. The learned Judge held that the setting out of the occupation or caste was only directory and was a part of the description of the candidate. 'It does not go to the root of the matter' said the learned Judge, 'So long as there is enough material in the paper to enable him to be identified beyond doubt'. In my opinion, the principle that is to be deduced from these authorities is that we must look to the substance and not merely the form. If the particulars given are sufficient to identify a person for all the purposes for which an Electoral Roll is prepared, then a mere technical defect will not render it bad. On the other hand, if the particulars given do not serve the purpose, or are insufficient for that purpose, then the matter is of substance & not merely of form. I have already mentioned above the object and purpose for which the electoral roll is prepared and the particulars furnished therein. It is plain to me that in this case the electoral roll not been drawn up in a manner that fulfils these objectives. In other words, entries have been made perfunctorily and in some cases omitted to be made altogether, so that looking at the roll it is not possible to identify many of the voters or to check up their qualification. It may be that if a person took an electoral roll and himself went from house to house and made enquiries or obtained further particulars, then it might be possible to satisfy himself. This is however, not the duty cast upon the voter or the intending candidate, but is the statutory duty to be performed by the Registering authority. In England, it has been held that for the purpose of preparing a register of electors there should be house-to-house enquiry and investigation. In, Schofields' - 'Local Government Election, 2nd edn. page 38, it has been stated as follows :

'With a view to the preparation of the registers, the registering officer shall have a house-to-house or other sufficient enquiry made as to the persons entitled to be registered. The registering officer may require any house-holder or person owning or occupying any land or premises within the area for which he acts ....... to give information required for the purpose of his registration duties (Regulation 22, Representation of the People Regulation 1949)'.

8. Section 68 of the said Regulations lays down that misnomer or inaccurate description of any person or place in any electoral list shall not prejudice the operation of that document with respect to that person or place in any case where description of the person or place is such as to be commonly understood. (Schofield page 670).

9. There is no corresponding section to Section 68, in the Bengal Municipal Act or the rules, but I think that Section 68 of the English Regulations supports the view that the prime object or an electoral roll is to ensure the identification of the voter, and an electoral roll which does not fulfil that purpose is not an Electoral Roll at all.

10. In my opinion, for the reasons aforesaid the electoral roll as published by the Basirhat Municipality has not been prepared in accordance, with law and is not an electoral roll as contemplated by the Act and the rules. Consequently, an election cannot take place on the strength of this electoral roll.

11. The Rule is accordingly made absoluteand a Writ in the nature of Certiorari is issuedquashing the electoral rolls which have been published. There will also be issued a Writ in thenature of Mandamus directing the respondents notto give effect to the said electoral rolls. The respondents will now proceed to draw up proper electoral rolls in conformity with the law and also totake further steps for election of Commissioners inaccordance with law. There will be no order as tocosts.


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