1. In this case the plaintiff, who is the appellant before us, is a resident within the Municipality of Manicktolla.
2. A general election of the Commissioners of the Manicktolla Municipality was held on the 27th March 1920, and of this date due intimation had been given by a notification published in the Calcutta Gazette of the 3rd September 1919. Thereafter in accordance with the Rules framed by Government under the provisions of Section 15 of the Bengal Municipal Act, III of 1884, the register of persons qualified to vote was revised under the provisions of Rule 4 of the said rules and on the 23rd January 1920 was duly published under Rule 5.
3. It is not disputed that the plaintiff possesses the qualifications required of voters by the proviso to Section 15 of the Act, and that his name appears on the assessment or rating lists. It follows that his name should have appeared in the revised and published register of qualified voters and the omission of his name can be attributed only to the laches of the chairman or of those acting under the chairman's orders. The case of the plaintiff is that he discovered the omission on the 5th of March, and forthwith made application to the chairman for the necessary rectification of the register. On the next following day the 6th of March he brought his present suit, in order to have it declared that he is a qualified voter, and for a mandatory injunction directing the chairman to insert his name in the register.
4. The defence in substance was and is that under Rule 6 of the rules already referred to, the plaintiff should have made his application to the chairman within 15 days from the date of publication of the register i.e., on or before the 2nd of February.
5. To this the appellant replies that on his application the chairman should have proceeded under the proviso to Rule 11, and contends further that if Rules 6 and 11 must be so construed as to deprive him of the right to vote conferred upon him by the proviso to Section 15, to that extent they must be held to be ultra tires.
6. Section 15 authorises the Local Government inter alia to make rules 'in respect of the mode of election.' This language is possibly not very happy, but we must construe the words, if possible, in such manner as to further and not defeat the purpose of the Act. We take it, therefore, that this provision of the section authorises the Local Government to frame rules in all matters necessary to the proper conduct of elections. For the proper conduct of any election it is essential that the Polling Officer should have at hand a ready means of ascertaining and determining whether the parsons appearing before him are entitled to have their votes recorded. To leave it to the Polling Officer on the polling day, amid a crowd of expectant voters, in face of possible objection?, to inquire whether the would be voter is over 21, has been resident for 12 months, has paid the required sum in rent, rates or taxes or possesses the prescribed education qualifications would be to cause inordinate and intolerable delay, to render the polling booth a scene of disorder and confusion and make the holding of any election impossible. The preparation of a register of voters at once suggests itself as the easiest mode of obviating difficulties and facilitating the performance of the Polling Officers' duties. In view of the explanation to Section 15 it might possibly be said that it is open to the Local Government, subject to the provisions of Section 14, to provide by rule that entry in this register shall by itself be a sufficient qualification. But in the case of persons possessing the qualification referred to by the proviso to Section 15 or by the rules framed under such section, entry in the register is to be regarded not so much as in itself a qualification but as the evidence upon which the Polling Officer must proceed. For this purpose the register is conclusive and if the result is that a duly qualified person finds himself debarred from voting, the conclusion to be drawn is not that Government by rule has improperly deprived him of his rights, but that be himself has failed to furnish the necessary evidence of his title.
7. When it is once held, as we hold, that Government by rule may require the preparation of a register, it must also be conceded that for the various stages or proceedings in the due preparation or revision of that register reasonable time must be Billowed and it is from this point of view that we must regard, Rules 6 and 11. Rule 6 read with Rules 5, 7, 9 and 10 in effect allows 15 days for the inspection by residents of the published register and 30 days for the adjudication on claims and objections in the 1st instance by the chairman, who is responsible for the due preparation of the register, and, on appeal, by the Magistrate, the authority appointed to decide disputes. Within the said 30 days and not less than 15 days before the election, the register as amended by the revising authorities must be republished. The periods allowed by Rule 6 for inspection and for adjudication on claims and objections appear to be reasonable and should be sufficient in the generality of cases, but the question arises for what purposes is the interval of 15 days between the republication and the election intended. It would seem fairly obvious that the intention must be to give electors a further opportunity for inspection and a further opportunity for the rectification of possibly accidental omissions. If this were not so, the republication and the interval of 15 days would alike be unnecessary. This brings us to Rule 11. That rule read with Rule 9 has the effect of closing the register 15 days before the date of the election. But at the same time it contains a proviso to the effect that any person whose name has been omitted may still apply to the chairman and that the claims thus made should be dealt with in the manner provided in Rules 9 and 10.
8. It is contended by the respondent that this proviso applies only to the rectification of the register for the purposes of bye-elections That contention appears to be founded on Section 23 of Bengal Act II of 1888, from which Rules 10 and 11 have been largely taken. But Section 23 has not been reproduced in its entirety and the clause upon which the contention of the respondent might perhaps have been urged with success has in fact been omitted from the rule.
9. Apart from this, as the law provides that the qualifications of voters in point of residence and in point of payment of rates and taxes may be complied with on the day immediately preceding the election, unless the proviso is read as giving qualified electors a further opportunity of substantiating their claims, it would be difficult to justify the closure of the register for a period of 14 days preceding the said date.
10. We, therefore, hold that in so far as they apply to general elections and reading the proviso to Rule 11 of the rules made by Government under the provisions of Section 15 of the act are intra vires.
11. It follows that the claim made by the appellant on 4th March should have been investigated by the chairman. The materials necessary to an adjudication were available in the chairman's office, and on the facts now admitted could only have resulted in a decision in the appellant's favour.
12. We, therefore, decree this appeal, reverse the decree of the 1st Additional District Judge and restore the decree of the Munsif.
13. We may here note that it has been faintly suggested before us that the Courts had and have no jurisdiction to entertain this suit, In view, however, of the finding that the chairman has acted in contravention of the rules , the provisions of Section 9 of the Civil Procedure Code, of Section 42 of the Specific Relief Act, and of the 2nd proviso to Section 15 of the Act under consideration, any such contention necessarily fails.
14. With regard to costs, there have been laches on the part of the chairman of his officers. There have also been laches on the part of the appellant, who should have been more on the alert against mistakes which are always possible. Moreover, if he had applied to the Magistrate, the authority appointed to decide disputes, he might possibly have secured the remedy which he has obtained by this litigation.
15. We, therefore, direct that each party do bear his own costs throughout.
16. I agree.