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Bimal Chand Bothra Vs. the Chairman Jiaganj-azimganj Municipality and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 52 of 1954 (Mandamus)
Judge
Reported inAIR1955Cal541
ActsConstitution of India - Article 226; ;Bengal Municipal Act, 1932 - Sections 21, 21(1) and 529A; ;Bengal Municipal Rules, 1932 - Rule 15A(1)
AppellantBimal Chand Bothra
RespondentThe Chairman Jiaganj-azimganj Municipality and anr.
Appellant AdvocateProbhat Kumar Sen Gupta and ;Sushil Kumar Biswas, Advs.
Respondent AdvocateAjit Kumar Dutta and ;Prasun Chandra Ghosh, Advs. for Respondent No. 1
DispositionAppeal dismissed
Excerpt:
- .....the amendments directed by the district magistrate shall be published in the same manner as the final roll. the contention of mr, sen gupta was that sub-rules (1) and (2) of rule 15a should be read together and they should be construed as laying down -- since at the stage when a direction from the district magistrate would be received, the registering authority would be 'functus officio' -- that it was to the chairman that the magistrate's decision was to be communicated andit was he who would have to publish the amend-merits in the same manner as the final boll.if so, the conclusion obviously followed that the chairman of the municipality could, acting singly and without the assistance of anyone else, carry out the directions asked for by the rule and therefore there would be no.....
Judgment:

Chakravartti, C.J.

1. This is an appeal against an order of Sinha, J., dated 14-12-1953, by which the learned Judge discharged a Rule obtained by the appellant under Article 226 of the Constitution of India. The judgment of the learned Judge covers a fairly large variety of points, but Mr. Sen Gupta, who has appeared before us on behalf of the appellant, elected to press only one of them.

2. In view of the ground upon which we propose to dispose of the appeal, it is not necessary to set out the facts at any great length. Suffice it to say that on 8-7-1952, a preliminary electoral roll in respect of the Jiaganj-Azimganj Municipality was published by file relevant registering authority under Section 21, Bengal Municipal Act. The final electoral roll was thereafter published on the 6th September following. It appears that on 20-9-1952, one Kamalakanta Bhattacnarjee preferred an appeal before the District Magistrate under Section 529A, Bengal Municipal Act, whereby he prayed for the exclusion of the names of as many as 172 persons from the final electoral roll. That appeal was Appeal No, M-11 of Z952.

Five more appeals are said to have been preferred in respect or the same final electoral roll by which the inclusion of other persons was objected to- The appeal of Kamalakanta Bhattacharjee was disposed of by the District Magistrate on 18-10-1952, and he allowed the appeal. According to the District Magistrate's order, therefore, the names of 172 persons, objected to by Kamalakanta Bhattacharjee, became liable to be excluded from the final electoral roll.

The order of the District Magistrate was received by the Chairman of the Municipality on24-10-1952. There were some allegations to theeffect that the delivery of the District Magistrate'sorder was delayed by the adoption of certain dishonest manoeuvres, but to those allegations it is notnecessary to refer.

The Chairman, it is alleged, disregarded the order of the District Magistrate passed in Kamala-kanta Bhattacharjee's appeal, although he gave effect to the orders passed in the five other appeals and caused only the amendments directed in the latter to be published. It is alleged that when requested to give effect to the exclusions ordered by the District Magistrate in Kamalakanta Bhattacharjee's appeal, the Chairman declined to do so. on the ground that the District Magistrate had no jurisdiction to pass the order he had made after the expiry of the statutory period within which only he was entitled to make orders of that kind.

Thereafter, it was announced that the general election would take place on 18-1-1953, but the date was shifted from time to time till it was pushed forward to 28-3-1953. On 25-2-1953, the appellant, who was one of the candidates for election as a Commissioner, made a final demand of the Chairman for the exclusion of the 172 names, but that demand being refused, he moved this Court on 27-2-1953, and obtained a Rule. On 28-3-1953, the election was duly held, but by an order made earlier on 24-3-1953, Sinha J., restrained the publication of the results till the disposal of the Rule.

On 14-12-1953, the Rule was disposed of and discharged. We understand that thereafter the results have been published elections held and the Commissioners elected have duly assumed office.

3. One of the several grounds upon which Sinha J., discharged the Rule was that no effective order could be made in the absence of the registering authority, who had not been made parties to the Rule. The learned Judge held that the prayer of the appellant being that some one should be commanded to exclude from the final electoral roll the 172 names in terms of the order of the District Magistrate, such a command could issue only to persons who were in a position to carry it out.

In the learned Judge's view, the authority contemplated by the Act and the Rules, whose function it was to carry out amendments directed in an appeal under Section 529A, Bengal Municipal Act, was the registering authority which is the same as the Committee referred to in Section 21 of the Act. The appellant had not impleaded the registering authority as such, but had impleaded only the Chairman, who was one of the members of the Committee known as the registering authority, but not also the two remaining members.

The learned Judge pointed out that were he to make the Rule absolute and give the directions asked for by the appellant, he would be passing an ineffectual order and consigning the Chairman to an impossible position, because the latter would. be directed to amend and republish the final electoral roll which he could not possibly do, acting alone and without the co-operation of the other two members, who would not be bound by the learned Judge's order.

4. It was strenuously contended by Mr. Sen Gupta that the learned Judge's view that it was the registering authority whose duty it was to carry out the amendments directed in an appeal under Section 529A of the Act, was wholly erroneous. He referred to the provision contained in Rule 15A(1) which says that after the disposal of an appeal, the District Magistrate shall communicate his decision forthwith to the Chairman of the Municipality.

Mr. Sen Gupta next referred to Sub-rule (2) of the same Rule which says that after the expiry of a certain period, the amendments directed by the District Magistrate shall be published in the same manner as the Final Roll. The contention of Mr, Sen Gupta was that Sub-Rules (1) and (2) of Rule 15A should be read together and they should be construed as laying down -- since at the stage when a direction from the District Magistrate would be received, the registering authority would be 'functus officio' -- that it was to the Chairman that the Magistrate's decision was to be communicated andit was he who would have to publish the amend-merits in the same manner as the Final Boll.

If so, the conclusion obviously followed that the Chairman of the Municipality could, acting singly and without the assistance of anyone else, carry out the directions asked for by the Rule and therefore there would be no danger of the Court making an ineffectual order.

5. I find myself entirely unable to accept Mr. Sen Gupta's contention. There is nothing to show that after the publication of the final electoral roll, the Committee contemplated by Section 21 of the Act would become 'functus officio' or would cease to exist.

It is true that neither the Act nor the Rule says expressly that after the receipt of the decision of the District Magistrate given in an appeal under Section 529A, the Chairman shall lay the same before . the Committee and that thereupon it shall become the duty of the Committee to carry out the amendments in the final electoral rolls and publish the roll as so amended. But if there is no provision expressly laying such duty on the Committee, nor is there any provision laying the same duty expressly or otherwise on the Chairman.

It is elementary that no one can be directed by a writ of mandamus to do something which he is not under a binding obligation to do. Mr. Sen Gupta contended that because the District Magistrate's decision was directed to' be communicated to the Chairman, it should be held that from that stage it was the Chairman and the Chairman alone whom the Act and the Rules had in view. I am quite unable to see any force in that argument.

It is to be noticed that the Committee contemplated by Section 21 of the Act is a committee consisting of the Chairman of the Municipality and two Commissioners. When, therefore, Sub-rule (1) of Rule 15A provides that the decision of the District Magistrate is to be communicated to the Chairman of the Municipality, it is reasonable to hold that it is sent to the Chairman in his capacity as a member of the Committee constituted by the Act to deal with the preparation and the publication of the roll.

I might add that Sub-rule (2) of Rule 15A enjoins that any amendments that may be directed by the District Magistrate shall be published in the same manner as the Final Roll. The Final Roll has to be published by the Committee contemplated in Section 21, as Sub-section (1) of that section clearly provides. It is true that the language of Sub-rule (2)' of Rule 15A does not go further than the 'manner', but in any event it goes nearer to the Committee contemplated by Section 21(1) than to simply the Chairman of the Municipality as such. Taking the whole scheme of the Act and the Rules, I have no doubt in my mind that even after the publication of the final electoral roll, it remains the duty of the registering authority, that is the Committee contemplated by Section 21(1), to carry out any further amendments that may be directed by the District Magistrate in an appeal.

Indeed, the Final Roll is not really made final till remedies by way of appeal under Section 529A are exhausted, should anyone of the voters be inclined to have recourse to that section. In my view, Sinha J,, was entirely right in holding that the constitution of the Rule was defective and it was impossible to make in the appellant's favour the orders which he asked for in the absence of the remaining members of the registering authority.

6. Although, as I have said, Mr. Sen Gupta chose only one point for pressing this appeal and that point fails, I may refer to one of the many other grounds upon which the learned Judge's decision rests. He has pointed out that according to an earlier decision of Bose' J., given on an earlier application under Article 226 of the Constitution inanother chain, it had been held that the District Magistrate's decision for the exclusion of 172 names had been given without any proper opportunity being afforded to at least 135 of the persons who were interested in the present proceeding.

It is true that none of the persons affected by the District Magistrate's order had taken any steps to challenge it, but Sinha, J., pointed out rightly, if I may say so with respect, that a Court exercising the equitable and discretionary jurisdiction under Article 226 could not ignore a fact which had come to its notice and if such fact made the grant of relief by way of a writ inappropriate, it should desist from granting such relief.

Any order made by the Court in the appellant's favour in terms of the relief asked for would affect the rights of franchise of as many as 172 persons, not one of whom had been impleaded in the Rule as an opposite party. I fail entirelly to understand how the appellant could expect to obtain an order by way of a high prerogative writ affecting, the rights of municipal franchise of not one but as many as 172 persons wholly behind their back and without their being brought before the Court to say what they might have to say against the proposed deprivation of their rights.

It will be remembered that the appellant took no exception to the electoral roll. Someone else,. one Kamala Kanta, objected to 172 names and included in an appeal under Section 529A of the Act, but when he came up to this Court for a writ on the Chairman' to exclude the 172 names, he failed to obtain an order in his favour, because the Court held that the appellate order of the District Magistrate was not a valid and proper order.

What the appellant wants is that he should get the benefit of Kamala Kanta's success with the District Magistrate which Kamala Kanta himself failed to get and that he should get an order against the 172 persons without even impleading them and giving them an opportunity for saying what they might have to say. No prayer can be less tenable. In my view, this second ground is by itself as much sufficient for the disposal of the appellant's application and necessarily the present appeal as the other ground which Mr. Sen Gupta particularly urged.

7. For the reasons given above, this appeal is dismissed with costs to respondent No. 1, -- the hearing-fee being assessed at three gold mohurs.

Lahiri J.

8. I agree.


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