Skip to content


Aparna Prasad Chunder Vs. Chairman, Garulia Municipality and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in161Ind.Cas.749
AppellantAparna Prasad Chunder
RespondentChairman, Garulia Municipality and anr.
Excerpt:
bengal municipal act (xv of 1932), section 18(1), clauses (1) and (2) - clauses (1), (2), if to be read disjunctively--action taken under clause (1)--action under clause (2) also if should be taken at the same time. - .....(1) and (2) are to be read conjunctively or disjunctively: in other words, whether when the local government takes action under clause (1) of sub-section (1) it is at the same time bound to take action under clause (2). mitter, j., agreeing with the trial court and disagreeing with the first appellate court, has held that the clauses are to be read disjunctively. that view is challenged in this letters patent appeal.2. the appeal arises out of a suit for a declaration that the preparation of the electoral roll of the garulia municipality was contrary to the provision of section 18. it appears that the plaintiff has been entered as a voter in a certain ward of this municipality. by notification no. 7017-m of december 14, 1933, the local government acting under sub-section (1) of.....
Judgment:

S.K. Ghose, J.

1. This is a Letters Patent Appeal from a decision of R.C. Mitter, J., and it raises a question with regard to the interpretation of Section 18, Bengal Municipal Act, 1932. The question is whether in Sub-section (1) of Section 18, Clauses (1) and (2) are to be read conjunctively or disjunctively: in other words, whether when the Local Government takes action under Clause (1) of Sub-section (1) it is at the same time bound to take action under Clause (2). Mitter, J., agreeing with the trial Court and disagreeing with the first Appellate Court, has held that the clauses are to be read disjunctively. That view is challenged in this Letters Patent Appeal.

2. The appeal arises out of a suit for a declaration that the preparation of the electoral roll of the Garulia Municipality was contrary to the provision of Section 18. It appears that the plaintiff has been entered as a voter in a certain ward of this Municipality. By Notification No. 7017-M of December 14, 1933, the Local Government acting under Sub-section (1) of Section 18 increased the number of Commissioners from 10 to 12 and by a further notification of the same date it fixed the number of appointed Commissioners at live with the object of securing proper representation of the jute and cotton industries therein. It appears further that by a separate notification the Local Government in the exercise of its power under Sub-section (2) of Section 24 directed the preparation of electoral roll in Form A, and accordingly the electoral roll was prepared. It included the names of all voters connected with the jute and cotton industries as well as of those not so connected. The contention of the plaintiff-appellant is that as the Government increased the number of appointed Commissioners to five under Clause (1) it was bound to direct the preparation of a special electoral roll of non-industrial voters under Clause (2), and that such electoral roll not being prepared the election could rot proceed on the basis of the general electoral roll. This is a point which was argued before Mitter, J., and having perused his judgment and listened to the arguments on both sides, we may say at once that we are in entire agreement with the opinion of our learned brother. The points may be briefly indicated: It is noteworthy that the word 'may' occurring in the first part of Sub-section (1) of Section 18 governs Clause (1) as also Clause (2) in other words, it is optional with the Local Government to take action under Clause (1) and it is also optional with the Local Government to take action under Clause (2). There is nothing to indicate that, where Government does take action under Clause (1) it is bound to proceed to take action under Clause (2) as Mitter, J., has pointed out. If the contrary had been the intention of the legislature, one would expect the words 'and shall' to occur before the first word 'provide' in Clause (2).

3. The second point is that the third provision, which is in the words 'and the Local Government may further provide for election by general electorates in any portion of such Municipality', applies not merely to Clause (2), but also to Clause (1). This is confirmed not only by the position of the clause I have quoted, but also by the re-appearance of the word 'may' going to show that it is an independent provision which applies not to only one of the two clauses aforesaid, but to both of them. Therefore, it follows that if the Government chooses to take action under Clause (1) it may further provide for election by general electorates, and it may also do the same thing if it chooses to take action under Clause (2) or if it chooses to take action under both the clauses. There has been some argument as to the word 'portion'. If has been contended for the appellant that the expression 'portion of such municipality' does not refer to a local area: but this is inconsistent with the definition of the word 'municipality' occurring in Section 3, Sub-section (34) which shows that the word means 'any place in which this Act, or any part thereof, is in force

4. The next point is that Clause (1) of Sub-section (1) of Section 18 contains two separate provisions under either of which action can be taken namely, first, that the Government may increase the number of appointed Commissioners beyond the proportion mention in Section 16, and secondly, that the Government may constitute industrial constituencies. The learned Advocate for the appellant in this Court appeared to us to argue that Clause (2) would be a necessary corollary to Clause (1) beause if industrial constituencies were formed, it would be necessary also to form electoral constituencies for the representation of inhabitants who were not directly connected with industries. This argument may have some force: but, on the other hand, where action is taken on the first part of Clause (1), i.e., where the only action taken is to increase the number of appointed Commissioners, as has been done in the present case, it is difficult to see how the argument on the basis of the corollary applies. The Government may only increase the number of appointed Commissioners and it may further provide for election by a general electorate and that may amount to the representation of all the inhabitants. There has been some argument about double representation as Mitter, J. has pointed out. That is a question of policy but it may be pointed out that double representation is not so objectionable as non-representation.

5. Then it is pointed out that the electoral roll was not specifically prepared under Section 18, Sub-section (3), and it is contended that it is a self-contained section. It is apparent that Section 18 is an exception to Section 16. In terms it is so; and it does provide a self-contained rule for the preparation of electoral rolls under certain circumstances. But, as Mitter, J. has pointed out, the circumstances maybe such that the same set of rules framed by the Local Government will apply to Section 16 or to Section 18. In the present case rules have been actually framed under Section 24, Sub-section: (2) and there is no reference either to Section 16, Sub-section (1) or to Section 18, Sub-section (2). The argument, therefore, has no force. There is no reason why we should take a view of Section 18 different from that taken by Mitter, J. The appeal will, therefore, be dismissed with costs.

Mukerji, Ag. C.J.

6. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //