1. This is an appeal from a judgment and order of Sinha J., dated 28-7-1953, by which an application made by the appellants under Article 226 of the Constitution of India was dismissed.
2. The appellants who are eight in number challenged an order by which a Union, called the Mohulla Union, was divided into three electoral wards. Of the eight appellants, four, that is, Nos. 1, 2, 5 and 7 were members of the old Union Board, of whom two have been elected at an election subsequently held. The remaining four ant residents of the locality and therefore interested in the affairs of the Union.
3. The facts, briefly stated, are as follows. On 20-4-1949, a notice signed by the Circle Officer of the area was issued to the President of the Mohulla Union Board and he was asked to submit his proposals as to how best the Union could be divided into three wards of a reasonably equal size and how many members could properly be elected from each. No notice appears to have been taken of that communication. Subsequently on 8-4-1952, a similar notice, signed by the same Officer, was sent to the President.
This time the language was more emphatic and it was stated that for the purposes of the ensuing general election, the Union would have to be divided into three wards; therefore, the Union Board was being invited to submit its proposal for the contemplated division in the form set out in the notice itself. The case of the appellants is that on receipt of that notice, the Union Board deliberated on the matter and adopted a resolution on the 13th or 14th of April, 1952, by which a certain manner of dividing the Union into three wards was decided on.
It is said that a copy of the relevant resolution was sent to the Circle Officer. On 5-9-1952, the Circle Officer submitted his proposal for the division of the Union into wards to the District Magistrate through the Sub-Divisional Officer. Prior thereto, he claims to have conducted some kind of an enquiry and also considered a representation submitted to him by some pe0ple of the locality, including the Secretary of the Mohulla Congress Committee.
The proposal submitted to the District Magistrate is said to have been approved by him on 32-9-1952. Thereafter, a copy of the proposal was sent to the Union Board, which also received a notice that the election would be held on 13-3-1993. After that notice had been received, a petition signed by a fairly large number of persons, including the appellants before us and dated 26-12-1952, was submitted to the District Magistrate and by that petition objection was taken to the division of the Union, as purported to have been made.
As no information was received as to the fate of that petition, a second petition, dated 11-2-1953, was submitted for a reconsideration of the matter. Both these petitions were rejected. Thereafter the appellants moved this Court under Article 226 of the Constitution and obtained a Rule on 9-3-1953. On 28-7-1953, the Rule was discharged.
4. It appears that two points were taken before Sinha J. In the first place, it was contended that the division of the Union into electoral wards was wholly had in law, inasmuch as the Bengal Village Self-Government Act, 1919, contained no provision for such division and inasmuch as Rule 2 of the Rules framed under Clauses (a) and (b) of Sub-section (2) of Section 101 of the Act, under which the division was claimed to have been made, was wholly 'ultra vires' the Act.
It was contended, in the second place, that assuming that Rule 2 was a good rule, it left the decision as to whether a Union should be divided into wards or not and if divided, what the number of the wards shall be, to the District Magistrate, but in the present case the District Magistrate had decided nothing, and had merely appended his signature to certain ready-made proposals, submitted to him by his subordinate officers.
5. Sinha J., found no merit at all in the second contention. He held that the exigencies of administration required that many of the duties allotted by statutes to superior officers should be performed at the outset by subordinates and that unless the groundwork was done by officers in the lower grades, it would be impossible to carry out any project or perform any administrative duty at all.
In the learned Judge's view, the facts of the case made it sufficently clear that what the District Magistrate had done amounted to his making a decision within the meaning of the Rule, As regards the first point, the learned Judge found it to be of some difficulty, because Section 101 which contained the rule-making power of the Government spoke only of 'the manner of election' and the learned Judge thought that however wide that expression might be, to construe it as covering a division of a Union into wards would be to put a severe strain on the language.
Ultimately, however, die learned Judge did not give effect to the doubt felt by him, because he felt pressed by the consideration that the Act had been in force since 1919 and although it had become one of the commonest things to divide Union into wards, it had never been contended that no power to make any such division existed under the Act at all. The expression 'Manner of election', the learned Judge thought, was capable of a wide as well as a narrow meaning and therefore he preferred to adopt the wide meaning which had so long been accepted.
6. I need not make any serious reference to a third point, also raised before the learned Judge and disposed of by him with the brief comment that it was of little substance. The point was that even assuming that the Government had power to divide a Union into wards, such power could not be delegated to the District Magistrate and that the true effect of Rule 2 was that the Government had made a delegation.
7. Having been taken through the materials in the paper-book at some length and heard the parties, I must say that we did not at all feel happy as regards the manner in which the respondents had proceeded in the case. This however bears only upon the point that the District Magistrate never decided that the Union had to be divided into wards and that only his subordinates had done so. Before dealing with that point, I might consider the other point which Sinha J., found to be one of some difficulty.
8. The point, as I have said, is that the Bengal Village Self-Government Act, 1919, only provides that the districts or parts of districts may be divided into convenient local areas and each such area may be declared to be a Union for the purposes of the Act. In terms, the Act does not say anywhere that an area, once declared to be a Union, can be further sub-divided for any purpose. So far as the broad language of the statute goes, it certainly seems to treat each Union as a single unit, but the Act also provides for elections and among the rule-making power which it has conferred on the Provincial Government by Section 101, is included the power to make rules 'determining the manner and time of election of members of union boards.'
We are concerned with only the manner and may leave aside the time. If mere be any division of a Union into wards in the contemplation of the Act at all, it must be found in the provision which I have just read.
9. The statute, therefore, speaks of making rules for the manner of election of members. How are members elected at any election? It is trite knowledge that in order that an election may be held and members elected at such an election there must be constituencies. There is certainly nothing inherently impossible in the whole area of a Union constituting a single constituency, but the point is not whether the whole area of a Union can be a constituency for the purposes of an election, but whether the division of the total area of a Union into electoral wards can be said to have any relation to prescribing the manner of an election.
In my opinion, such relation clearly exists. The division contemplated by Rule 2 of the Rules framed under Clauses (a) and (b) of Section 101 (2) is not a division for all purposes and the total area of a Union is not divided under that rule into separate self-contained wards in the same manner and with the same effect as the area of a municipality. There is no question of there being separate wards, each provided with the same set of amenities, such for example, as a charitable dispensary, a primary school, a tube-well and vaccination centre and institutions of that kind.
The division into wards contemplated by the Rule is wholly and solely for the purpose of furnishing constituencies for Union Board elections and consists only in dividing the population of the Union into separate groups, giving to each the right to elect a specified number of members. The so-called division into wards is therefore nothing more or less than a grouping of the inhabitants into different sections in order that they may function as distinct and separate constituencies for the purpose of electing the members of the Union Board.
It appears to me to be perfectly clear that such division of a Union into wards for such purpose amounts to prescribing the manner of election pf members. I am thus clearly of opinion that Rule 2 cannot be said to be 'ultra vires' the Act.
10. I might refer here in passing, before I take up the point involving questions of fact, to the third point urged by the appellants before Sinha J. That point, it will be remembered, was that in so far as Rule 2 embodied a delegation of the powers of the Government to the District Magistrate, it was a rule bad in law. I do not find any delegation of any kind in Rule 2, The Rule reads as follows:
'The District Magistrate shall decide in what manner each union shall be divided into electoral wards and the number of members to be returned for each of such wards;
Provided that the District Magistrate may, if he thinks convenient, decide that a union shall consist of one electoral ward only.'
As a matter of language, it is clear that when the Rule says that the District Magistrate shall decide in what manner each Union shall be divided into electoral wards, it assumes that the Union will be so divided and leaves to the District Magistrate only the manner of the division. Read with the proviso, the Rule appears to me to mean that, normally, a Union shall be divided into a convenient number of electoral wards, but the District Magistrate may decide in a particular case that no such division is necessary; and further that where the District Magistrate does not so decide, it will be for him to decide in what particular manner the division into wards shall be made.
In my view, Rule 2 is entirely within the rule making powers of the Provincial Government, as contained in Section 101 (2) (a) and there is no element of delegation in it at all.
11. I have now cleared the ground for approaching the principal question in the case, which is that assuming everything against the appellants, they are still entitled to succeed on the facts, inasmuch as the District Magistrate, who is the authority nominated by the Rule to decide whether a Union shall be divided or not and if divided what the manner of the division shall be, had not applied his mind in this case at any stage at all and the real fact was that everything had been done by subordinates with the name of the District Magistrate kept in front.
I cannot say that there is not some legitimate grund for criticism of the manner in which the officials concerned proceeded. The very first notice, to which I referred a few moments ago, refers to the division of the Union into three wards as a settled plan and it is a notice, not signed by the District Magistrate or on his behalf, but by the Circle Officer. There is nothing to show that it was the District Magistrate's decision that the Union should be divided and that the number of wards should be three.
I agree entirely with the learned trial Judge that the subsequent field-work was properly done by the Circle Officer and to a certain extent by the Sub-Divisional Officer and that it was only they who could do and could be expected to do that kind of work. But when one reaches the stage of final decision, one finds again a rather curious state of facts. On the affidavit of the Circle Officer, which the District Magistrate has supported by an affidavit of his own, what happened was that proposals for the division of as many as thirty-one Unions, submitted by this particular Circle Officer and proposals for the division of other Unions submitted by another Circle Officer were all placed before the District Magistrate in a lump with a top-sheet upon which it was stated that the papers below contained the proposals of the Circle Officers, which might be approved.
That note was by the Officer in charge of the District Chowkidari Department who appears to function, in regard at least to Union Board matters something like the Seristadar of the District Magistrate. On that top-sheet and below the collective note, if I may use that expression, of the Officer in Charge of the District Chowkidari Department, occurs the single word 'yes' and below that word there is something like a tick-mark which is said to be the signature of the District Magistrate. Neither the note of the Officer in Charge of the District Chowkidari Department, nor the alleged signature of the District Magistrate bears any date, so that there is no means of knowing what time elapsed between the mass submission of the proposals and the inscription by the District Magistrate of his affirmation.
Giving the maximum value to what appears from the affidavits of the respondents, it would appear that so far as the District Magistrate was concerned, he came to know of the proposals for the first time when they were submitted to him by the Officer in charge in the District Chowkidari Department and having the proposals for the many more than thirty Union Boards before him, all submitted in a lump with a top-sheet containing a covering note, he discharged his duty of deciding whether those numerous Unions should be divided into different wards and whether they should be divided in the manner proposed, by inscribing the single word 'yes' on the small sheet of paper placed on the top of the proposals.
It would seem that the true nature of the act performed by the District Magistrate was correctly decided by the Circle Officer in his affidavit, perhaps unconsciously, when he said that the District Magistrate had 'put his signature, approving all the proposals.' The District Magistrate has, however, sworn that he considered the delimitation proposals of the Circle Officers, including the present one, and approved the proposals.
Although from the facts which I have recited, appearances are not favourable to the contention of the respondents, we shall not be justified in disregarding the statement affirmed by the District Magistrate himself. However unhappy one may feel that matters in regard to which the decision has been left to the District Magistrate should be dealt with in what appears to be a very summary manner, the Court must, in the absence of any other material, accept the statement made by a responsible officer, who has pledged his oath, although it may be left guessing what manner of a 'decision' it was.
It will be remembered that the initial notice which stated that the Union would have to be divided into three wards, had not been issued by the District Magistrate. If the District Magistrate had even tentatively decided that the Union should be divided into three wards and therefore left the actual division to be worked out by the subordinates and then approved their proposals regarding the manner of the distribution of the Union area, little could be said in criticism of the procedure followed by him.
As matters stand, he was nowhere on the scene, till the proposal regarding this particular Union Board, along with proposals regarding a multitude of other Union Boards, was placed before him and he had occasion to exercise his mind only at that stage, doing whatever he did in that behalf in a wholesale manner and not even, strictly speaking, deciding anything but only approving of the proposals.
12. These considerations, however, do not avail the appellants. It will be remembered that when the Union Board received the notice, its reaction was not to raise an objection that the Union could not be divided into wards, nor to say that the division should not be into three wards, but should be divided into a larger or a smaller number. What the Union Board did was that it itself submitted certain proposals for the division of the Union into three wards.
It would thus appear that the appellants never raised the point that the area of a Union could not in law be divided into wards, nor the point that this particular Union should not be divided, nor even the point that the division should not be into three wards. In fact, the members of the Board themselves made a proposal for a division of the Union and for a division into three wards in the manner proposed by them. In those circumstances, it seems to me that it is not open to the appellants, in an application under Article 226 of the Constitution, to seek to question, the order of division on the ground that no such division is contemplated in law or on the ground that the division should not have been into three wards or on the ground that the District Magistrate had not applied his mind to the question of the number of wards into which the Union should be divided.
In an application for a high prerogative writ, a party cannot have a relief which he had never asked for and that on a case which he had never made in the course of the actual proceedings before his coming to the Court. What remains, therefore, is only the question of the actual distribution of the Union area in the manner done by the respondents. So far as that distribution is concerned, Mr. Das Gupta contended that the order of 22-12-1952, when the division was finally approved, must be taken as final and having regard to the fact that there is an affidavit by the District Magistrate, which must be accepted, Mr. Das Gupta's contention should, in my view, prevail.
Since the appellants are not entitled, in my view, to raise the question of the legality of any division of a Union at all, nor the question of the divisibility of the present Union or its divisibility into three wards, the area of the alleged impropriety on the part of the respondents which is questionable in these proceedings shrinks to a considerable degree. It narrows down to the decision as to the actual composition of the three wards into which the Union had been divided.
I have less difficulty in holding that so far as that single matter is concerned, the approval of the District Magistrate may be taken to be a decision. Apart from that, the fact of the matter seems to be that the respondents accepted the proposals made by the local District Congress Committee, whereas the appellants proposed a different manner of division. The subject-matter of the contest is therefore not any question of principle, but a question of the merits of the division actually made -- a matter hardly to be agitated on an application under Article 226 of the Constitution.
13. One other matter remains to be noticed. It will be recalled that after the division of the Union, as proposed by the Circle Officer and assented to by the District Magistrate, had been announced, two petitions of objection were _submitted to the District Magistrate by certain people of the locality. According to the District Magistrate's own affidavit, both of them were sent by him to the Sub-Divisional Officer, the earlier one for 'disposal' and the later one for 'report'.
In fact, the second petition also was disposed of by the Sub-Divisional Officer as, to adopt the District Magistrate's own language, 'the D. M. in Charge.' How, in the face of Rule 45 of the Rules which forbides delegation of the District Magistrate's functions under Rule 2, the first petition could have been sent to the Sub-Divisional Officer for disposal is not intelligible, unless it be assumed that the Rule was not known to the District Magistrate or was forgotten by him. Mr. Das Gupta made no attempt to support the action of the District Magistrate in regard to the first petition and conceded that the disposal by the Sub-Divisional Officer was wholly contrary to law.
What he still contended was that since the two petitions asked for the same relief on the same grounds and since the second of them was disposed of by the Sub-Divisional Officer, acting as District . Magistrate, the second petition at least was considered and disposed of by the proper authority and, therefore, in the result, no illegality affecting the ultimate decision had occurred. On that contention being advanced, we wanted to know what the phrase 'D. M. in charge' meant and how the Sub-Divisional Officer had come to act as the District Magistrate. After making the necessary enquiries, Mr. Das Gupta informed us that the District Magistrate had gone on leave during the relevant period and left a note that his work will be carried on by the Sub-Divisional Officer. Asked Whether that could make the Sub-Divisional Officer a District Magistrate, Mr. Das Gupta frankly conceded that it could not and he admitted without any further argument that neither of the petitions had been considered and disposed of by the proper authority contemplated by the law.
He contended, however, that the irregularity, patent and indefensible as it was, could not be said to have affected the validity of the division of the Union, as made, because if the approval by the District Magistrate of the proposals of the Sub-Divisional Officer was his 'decision', a valid division of the Union had already taken place when that approval was given and the disposal of the subsequent petitions by an authority, having no jurisdiction in the matter, could not invalidate the division.
Much as one must regret the disregard of the rules in regard to the disposal of the petitions. I feel pressed to assent to Mr. Das Gupta's argument. If the rules had provided for a review of the District Magistrate's decision, it would have to be held that where there was an application for a review, there could be no final decision till the application was disposed of and therefore if such application was disposed of by an authority not contemplated by the rules, there could be no valid decision or division of the Union.
But the Rules in the present case do not provide for any review and therefore once a division has been made by the decision of the District Magistrate, that division must remain valid, although subsequent petitions for a reconsideration of the division are not considered and disposed of by him and although he was the only authority who could and ought to have disposed of them.
14. It must, however, be admitted that by requiring the District Magistrate to decide for himself in the case of each one of the numerous Unions within his jurisdiction whether it should be divided into electoral wards, if so, into how many and what the distribution of the area between the different wards should be and by forbidding any delegation of that function to any other authority, the Rules impose upon the District Magistrate a burden which it may not always be practicable for him to bear.
Government may, therefore, consider whether they should not repeal or at least modify Rule 45 of the Rules. The Rule must have been framed because it was considered important to keep certain functions under the Act exclusively in the hands of the head of the District, but if the present case be typical of the manner in which the functions are performed in practice, there is no reality in the provision and nothing will be lost by its disappearance.
15. In my view, although it is not possible to approve of the manner in which the respondents proceeded, the appeal must, for the reasons I have given, fail. It is accordingly dismissed, but no order will be made as to costs.
16. I agree.