Balai Chand Majumdar vs Commissioners of Naihati Municipality

S.K. Sen, J.—These are four revisional applications under Article 227 of the Constitution and they arise from the decision of Shri Bimalendra Nath Maitra, Subordinate Judge, 7th Court, Alipore, in suits for setting aside election to Naihati Municipality. The election was held on March 25, 1956. There were four suits filed challenging the election. In suit No. 79 of 1956, the election in respect of Ward No. VI of Naihati Municipality was challenged. In suit No. 80 of 1956, election to Ward No. IV was challenged. In suit No. 81 election to Ward No. V was challenged; and in suit No. 78 election to Ward No. III was challenged and there was an alternative prayer for re-counting the ballot papers and declaring the successful candidates after a proper count.

The successful candidates were made Defendants and so were the Commissioners of the Naihati Municipality and the Chairman of the Naihati Muncipality. The successful candidates filed written statements, but they did not thereafter appear and contest the suits. The contest was carried on by the Commissioners of the Naihati Municipality and the Chairman of the Naihati Municipality. The learned Subordinate Judge found that there had been some irregularity in the matter of final publication of the electoral roll, but on this ground he did not set aside the elections. The learned Subordinate Judge decided other issues against Plaintiffs who challenged the election except one issue regarding Ward No. III. Accordingly, the election to Wards Nos. IV, V and VI were declared valid and suits 79, 80 and 81 were dismissed. As regards Ward No. III, the learned Subordinate Judge held that there was one item of irregularity or error which stood out in the case, the Polling Officer had reported that 805 votes had been cast and 44 of the votes had been rejected and the result of the election had been declared by counting the remaining votes, and that all the 805 voting papers had been sent on to the Election Tribunal; but on careful counting it was found that not 805. but 801 voting papers had been received by the Tribunal, and there were therefore four voting papers missing. The learned Subordinate Judge held that on count of the voting papers received, it appeared that Ratikanta Banerjee had secured 545 votes and Sisir Kumar Ghose had received 422 votes while Amulya Majumdar had got 309 and San tosh Kumar Sarkar 308 votes. The polling officer had declared Ratikanta Banerjee, Sisir Kumar Ghose and Santosh Kumar Sarkar as duly elected, because according to his count the number of votes received by Santosh Sarkar was 311 and that received by Amulya Majumdar was 307. The learned Subordinate Judge, therefore, held that in the absence of the four missing voting papers, it could not be decided whether Santosh Sarkar or Amulya Majumdar had received the larger number of votes, and while the count of the four missing votes could not affect the result so far as Ratikanta Banerjee and Sisir Kumar Ghose were concerned, still the election of the three members of one Ward was one indivisible process, and if it had to be set aside in respect of one member it had to be set aside as a whole. The learned Subordinate Judge, therefore, set aside the election in respect of Ward No. Ill and directed re-election.

The Plaintiffs who challenged the elections have filed the revisional applications 3023, 3024 and 3025 in respect of Wards Nos. IV, V and VI respectively. The Commissioners of Naihati Municipality have filed the revisional application 3109 challenging the order of the learned Subordinate Judge setting aside the election of Ward No. III.

Mr. Chittatosh Mukherjee, appearing for the Petitioners in C.R. Cases Nos. 3023, 3024 and 3025 has urged four points to show that the order of the learned Subordinate Judge refusing to set aside the election was bad. The first point urged by him is that the final electoral roll had not been legally published and that the election on the basis of such electoral roll would be void. Chapter III, Sections 15 to 65, of the Bengal Municipal Act, 1932 contain the provisions as to the constitution of the Municipality and election of Commissioner. Section 21 of the Act provides that a committee consisting of the Chairman and two Commissioners to be appointed by the Commissioners at a meeting for the purpose shall prepare and publish at the time and in the manner prescribed an electoral roll showing the names of persons qualified to vote. This committee is termed Registering Authority in the rules framed u/s 44 of the Act. u/s 529A, any person aggrieved by any entry or omission from the final electoral roll published u/s 21 may within 15 days from the date of the publication of such roll appeal to the District Magistrate and the District Magistrate may direct any notification, omission or alteration to be made in the electoral roll and the electoral roll shall be amended accordingly. The rules framed u/s 44 provided that there shall be a preliminary publication of the electoral roll by the Registering Authority, and that after objections have been disposed of by the Registering Authority, it shall publish the final electoral roll, and that this shall be done not less than 90 days before the election day. Rule 15A provides that after the District Magistrate has disposed of all by the appeals u/s 529A of the Act, the amendments if any, ordered by the District Magistrate in the final electoral roll shall be published in the same manner as the final roll, not less than 45 days before the date fixed for the election.

In the case of the Naihati Municipality, the final publication of the electoral roll was done by the Registering Authority on December 22. 1955. This final publication of the electoral roll is not challenged by the Petitioners. The District Magistrate after hearing certain appeals u/s 529A of the Act directed certain amendments to the final electoral roll by an order dated February 1, 1956. The amended roll published on February 7, 1956. but under the signature of the Chairman alone and not all of the three members of the Committee. There was a writ petition filed before Sinha J., under Article 226 of the Constitution, challenging the publication of the amended roll as made on February 7, 1956, on the ground that it was not done by the Registering Authority but by the Chairman alone. Sinha J. held that the publication under the signature of the Chairman alone was not in accordance with the Rules, and before him the Chairman gave an undertaking that he would republish the amended roll in accordance with the Rules, and on the basis of the undertaking the writ petition was disposed of March 7, 1956. On March 8, 1956 there was a fresh publication of the amended Toll of electors, and in the printed copies published the names of the Chairman and the other two members appeared; but the contention of the Plaintiffs Petitioners is that this was done without the consent of the other two members and that their signatures were not taken on the original or office copy of the amended roll. The election was. however, held on March 25, 1956. the date fixed by the District Magistrate under Rule 2. and it is urged by Mr. Mukherjee that since the election was held on the basis of the amended roll which was published by the Chairman alone and not by the Registering Authority as a whole, it was not held in accordance with the law and was, therefore, void. In connection with this point, the learned Subordinate judge. observed that it had been admitted before him that the re-publication on March 8, 1956, was actually made by the Chairman alone without the express consent or authority of the other two commissioners, and in view of the admission the learned Subordinate Judge held that there was no legal publication of the amended electoral roll by the registering authority.

The learned Subordinate Judge observed that it would be discussed at the proper place whether this had materially affected the result of the election, but a perusal of the judgment shows that he omitted to deal with the question later on. Mr. Mukherjee, has, therefore, urged that the order of the learned Subordinate Judge was bad and cannot be supported. There is, however, the provision of Section 38(1)(c) of the Bengal Municipal Act that the Judge shall set aside an election only if the result of the election has been materially affected by any non-compliance with this Act or any rule made under this Act or by any mistake in the forms required thereby or by any error, irregularity or informality on the part of any officer charged with carrying out any duty under the Act or the rales; and the trend of the judgment of the learned Subordinate Judge is that the result of the election was not materially affected inspite of the fact that the final publication of the amended electoral roll was done by the Chairman alone and not by the Registering Authority. In any case, I must take the view that the result of the election was not affected because it was the Chairman alone and not the Registering Authority which published the amended electoral roll. It has been mentioned that the final electoral roll was published on December 22, 1955 and admittedly that was done by the Registering Authority. After some amendments had been ordered by the District Magistrate u/s 529A. the amended roll was published by the Chairman alone, but it is not suggested that the amendments ordered by the District Magistrate were not faithfully incorporated in the amended roll. Accordingly, there was no departure from the procedure in substance, although there was a technical departure in as much as the amended roll was not published by the Registering Authority, but by the Chairman alone. It was because the Chairman had thus ignored his colleagues at the final stage of the publication of the electoral roll that these colleagues filed a writ petition before Sinha, J., and obtained the order in C.R. Case No. 464 of 1956, which as stated before was disposed of on the undertaking of the Chairman to republish the roll in accordance with the rules. If the Chairman did not comply with his undertaking faithfully, the Chairman might be guilty of an offence, but in connection with the question of setting aside an election the point for consideration is whether the non-compliance with the strict provisions did in fact materially affect the result of the election and in view of the fact that the rules of procedure were in substance complied with, I must hold the non-compliance with the strict provisions did not in fact materially affect the result of the elections. I do not see what practical difference it would have made if the publication on February 7, 1956 had been strictly in order.

This also disposes of the second point urged by Mr. Mukherjee. Mr. Mukherjee''s second point is that after the re-publication of the amended roll, a fresh date ought to have been fixed for filing the nomination papers and for scrutiny of such nomination papers, because Rule 17 of the election rules provides that not less than 45 days before the election day the Commissioners shall fix for the nomination of the candidates a date which shall not be less than 35 days before the election day. In other words, as soon as the amendments made by the District Magistrate u/s 529A are published under Rule 15A(2), the Commissioners have to fix a date for the nomination of the candidates. Now the programme for the election had been drawn up on the basis of the order of the District Magistrate fixing March 25, 1956, as the date of election and therefore February 7, was the date for the publication of the amended roll and February 17, 1956, was the last date for filing nomination papers. Sinha, J., in disposing of C.R. Case No. 464 of 1956, did not consider it necessary to order that there should be a fresh programme drawn up for the election. He issued no mandamus on the District Magistrate to fix a new date for election. Apparently, he considered that the defect was too technical and it would be sufficient to correct the defect by a formal republication of the amended roll. After the re-publication of the. amended roll on March 8, 1956, there could be no further date fixed for filling nomination papers without changing the election date. Therefore, election took place in accordance with the original programme. Under the original programme, the Plaintiffs Petitioners had sufficient opportunity to file nomination papers. In this connection, it is relevant to remark that the writ petition was not filed by any of the Plaintiff-Petitioners, and the Plaintiff Petitioners had no reason to think that the publication of the amended roll made on February 7, 1956, was illegal. There was no evidence to indicate that on the footing that the publication of the amended roll on February 7, 1956, any of the Plaintiffs was waiting for a fresh publication of the amended roll before filing his nomination paper. Accordingly, I must agree with the learned Subordinate Judge that the omission to fix a fresh date for filing nomination after the re-publication of the amended roll on March 8, 1956, did not materially affect the result of the election.

The third point urged by Mr. Mukherjee is that the electoral roll was not prepared in strict accordance with form A prescribed by Rule 3 of the election rules. The form contains a column for the name of the father or the name of the husband in the case of a female voter there is also another column for indicating the age of the voter. Now in the electoral roll published for Naihati Municipality the name of the father or the husband was generally given, but in some case it was mentioned that the name was not known. As regards the age there was the common entry against the names of all the voters that the age was "21 or more". Mr. Mukherjee has urged that the omission of the names of the father or the husband in Mime cases, and non-recording of the exact age in all cases, made it possible for false personation to be made comparatively easily, it being difficult to challenge such false personation. In this connection Mr. Mukherjee has referred to a decision of Sinha J., in Amulya Ratan Karmakar and Others Vs. The Commissioner of Basirhat Municipality and Others, , where for similar defects Sinha J., quashed the electoral rolls altogether and issued a mandamus directing the Commissioners to draw proper electoral rolls in strict conformity with the law. But the order of Sinha J., in the above case was made in a writ petition under Article 226 just after the publication of the electoral roll and before any further step had been taken up towards election. In the present case, although there was a writ petition filed before Sinha J., in the course of the election, the defect in the form of the electoral roll was not challenged. What the learned Subordinate Judge had to see as Election Tribunal u/s 36 of the Ac: was whether the defect had in fact materially affected the result of the election. The Plaintiffs Petitioners alleged that there were in fact certain false prsonations, but the learned Subordinate Judge after discussing the evidence held that the alleged false personations were not at all proved. It follows therefore, that in spite of the defect in the form of the electoral roll the result of the election was not in fact materially affected. Therefore, tin-; could not he a ground for setting aside the election.

The last point urged by Mr. Mukherjee is that the candidates who would be actually affected in the different suits if the suits succeeded though they filed written statements, did not appear and contest the suits and so the suits should have been decreed or parte, and the Commissioners and Chairman of the Naihati Municipality had no locus standi to contest the suits for setting aside the election because they were not directly affected. In this connection however, there is Rule 4 of the rules regulating the procedure to he followed by a Judge in inquiring into an election petition. This Rule 4 is that the Judge on receipt of an selection netition. must cause a copy of the petition to be served on the person the validity of whose election is called in question and on the Chairman and the Commissioners of the Municipality concerned. Thus not only the person the validity of whose election is challenged but also the Chairman and the Commissioners are proper and necessary parties in a suit for setting aside the election, and therefore, the Commissioners and the Chairman of the Municipality may put in appearance and contest the suits for setting aside the election. The Chairman and the Commissioners generally are interested in seeing that the present administration of the Municipality is not disturbed by frivolous applications for setting aside a particular election; and the candidates whose elections might be affected by the result of the suits contested through the Chairman and the Commissioners. I hold that the Chairman and the Commissioners had Incus standi in opposing the suits and also in opposing filing revision applications.

In C.E. Case No. 3109 of 1959, we are concerned with the question whether the learned Judge was right in setting aside the election of Ward No. III as a whole. Mr. Rabiranjan Das Gupta appearing for the Petitioners in this case has urged that there was an alternative prayer in connection with Ward No. III, that the voting papers should be scrutinized by the Judge himself i.e. under the provisions of Section 39 of the Municipal Act, and that he should thereupon declare the candidates who have obtained the largest number of votes as duly elected; and that in the circumstances the learned Judge should have acted u/s 39 and not u/s 38. The learned Judge, however, pointed out that he could act under the provisions of Section 39 only when there was no challenge to the election on the ground of any defect or illegality or malpractice under the provisions of Section 38; and that in the case such charge had been made and therefore the case came u/s 38 and not u/s 39. I must fully agree with the view taken by the learned Judge. The next point is, whether the election ought to have been set aside as a whole. Mr. Das Gupta has urged that it was found by the learned Judge himself that the four missing ballot papers could not in any case have affected the election of Ratikanta Bnnerjee and Sisir Ghosh, and could only have affected the election of Santosh Sarkar, and that in the circumstances, the learned Judge should have set aside the election of Santosh Sarkar only and not of all the three successful candidates. The learned Judge referred to two Division Bench rulings of this Court viz., Rathis Munshi v. Amulya Charan Ghatak (1930) 34 C.W.N. 741 , and held on the authority of those rulings that when in a plural number constituency the election of one of the candidates is successfully challenged, the result would be that the entire election in the constituency should be set aside and a fresh election ordered, because the election of the members of the multi-member constituency is one indivisible process. There is however, a decision to the contrary viz., Ahmed Hossain Vs. Aswini Kumar and Others, , which is also a Division Bench ruling, where it was held that u/s 38(1)(d) of the Bengal Municipal Act, an election may be set aside of the delinquent candidate only without interfering with the result of the election of the other successful candidates of the Ward. Debabrata Mookerjee, J., who delivered the judgment of the Bench in the case Mahammad Anisul Islam v. Kali Kumar Mukherjee (1954) 59 C.W.N. 127 noticed the earlier case of Sk. Ahmed Hossain (supra) and distinguished that case by pointing out that in that case which was dealt with by Lahiri and Guha JJ. there was actually no polling and only three nominations had been accepted, and they were declared elected unopposed; and, therefore, when it was found that one particular candidate was disqualified and his nomination paper ought to have been rejected it was open to the Court to set aside the election of that particular person without interfering with the election of the other two candidates. After making the distinction, Debabrata Mookerjee J., observed (at page 134) that Sk. Ahmed Hossain v. Aswoni Kumar Pal (supra) was no authority for the proposition that when the election of a particular candidate is brought in question a plural member constituency, the election of the non-delinquent candidates remains unaffected in all circumstance. In. other words, in some circumstances the election of non-delinquent members may remain unaffected, but in some circumstances the election has to be set aside as a whole. It is, therefore, not correct that by the Division Bench ruling of this Court the law has been settled that when election of a candidate in a multi-member constituency is successfully challenged, the election must be set aside as a whole. The circumstances of each, case must be taken into consideration. Debabrata Mookerjee,. J., quoted with approval two of the reasons given in the earlier case Rathis Munshi v. Amulya Ghatak (supra) for holding that the entire election should be set aside. The first reason given was that the intention of the legislature clearly appeared to be that two or more members of a multi-member constituency should be elected from a Ward at one election, and it was not contemplated that such an election might be held piecemeal. The second reason was that if the District Magistrate or the Chairman had refused to accept the nomination of a particular candidate or wrongfully accepted the nomination of a particular candidate, it would be difficult to say how the electors would have voted if no such mistake had been made. i.e. if no nomination had been wrongfully accepted or rejected, i.e., if there was one more or one less candidate in the field. As regards the first reason. I must point out that the Municipal Act also contemplates election for filing casual vacancies and it is not always necessary that the election of all the members for a Ward should take pake at one election. Reference may be made to Sub-section (4) of Section 24 of the Act, which refers to election in respect of casual vacancies. There is also Section 42 that provides if an election is set aside by the Judge, steps would be taken for filling up the vacancy, as though it had been a casual vacancy. I do not, therefore, think that the first reason which weighed with Debabrata Mookerjee, J., is really of much importance. The second reason is however of much importance and it is applicable whenever the position is such that if the defect which has been found had not occurred the result of the election as a whole might well have been different. Such a case occurs when there is polling after a nomination has been wrongfully rejected or accepted. In every such case, the election as a whole of a multi-member constituency has to be set aside. When however it is clear that the defect would only affect one candidate and the election of the other candidates could not have been affected if such error or defect had not occurred, then it is not necessary and it is in fact improper to set aside the election of the remaining candidates. Accordingly in the present case, I must hold that the learned Judge acted improperly in setting aside the election of Ratikanta Banerjee and Sisir Ghosh, and bis order must therefore be modified so that the election of Santosh Sarkar alone be set aside.

Accordingly, it is so ordered that the rules in C.R. Cases Nos. 3023, 3024 and 3025 be discharged without costs and that the rule in C.R. Case No. 3109 be made absolute in part, and the order of the learned Judge be modified so as to read that the election be set aside in respect of Santosh Sarkar only and not in respect of Ratikanta Banerjee and Sisir Kumar Ghosh. No order is made as to costs in any of the Rules.

Before parting with the case, I should like to impress upon all learned Judges the need for the greatest expedition in dealing with suits for setting aside Municipal elections. The suits in the present instance were instituted on April 4, 1956, but they were disposed of on August 29, 1959-a duration of three years four months and twenty-five days. The next general election of Naihati Municipality is scheduled for March, 1960 only three months ahead. No useful purpose could have been nerved in setting aside the election to Wards IV, V. and VI at this stage, even if I had been so inclined. Section 90 of the Representation of the People Act as amended in 1956 provides that election petitions in respect of elections to State and Central legislatures shall be ordinarily disposed of within six months of the publication of the election results, and Section 116A provides that appeals in such cases to the High Court shall ordinarily be disposed of in three months. There is no doubt no such statutory provision in the Municipal Act, hut there is need for even greater expedition, in view of the fact that the term of a member of a legislature is five years, while that of a Municipal Commissioner is four years. It is imperatively necessary therefore that all Judges dealing with Municipal election suits should give utmost attention to them to see that they are disposed of in six months or less.