Fani Datta vs Corporation of Calcutta

Sinha, J.—The Appellant in this case is Fani Datta whose name is borne in the Electoral Roll for the time being in force for election of members to the West Bengal Legislative Assembly from the Assembly Constituency No. 123 Burtolla North which corresponds to the present Calcutta Corporation Constituency No. 11 Section 48 of the Calcutta Municipal Act, 1951 (West Bengal Act XXXIII of 1951), deals with the qualification of electors to the Corporation of Calcutta. It runs as follows:

A person who resides in a constituency and whose name is included in the electoral roll for the time being in force for election of members to the West Bengal Legislative Assembly from an area which includes that constituency shall be qualified to be an elector of that constituency.

It would be observed that there are two qualifications mentioned in Section 48, the first being that the name should be included in the electoral roll of the Legislative Assembly from an area corresponding to the Corporation constituency and the second is that the person concerned must be a resident within that area. Section 52 deals with the preparation of the electoral roll. Sub-section (1) provides that an electoral roll shall be prepared for every constituency. Sub-section (2) empowers the State Government to make rules providing for the preparation of the electoral roll, the mode of making claims and objections to lay down the manner in which such claims and objections should be decided and generally for all matters relating to the publication of electoral rolls. In exercise of powers given under Sub-section (2) of Section 52 the State Government has framed a set of rules known as the Calcutta Municipal Electoral (Preparation and Publication and Revision and Republication of Electoral Rolls) Rules, 1952. Briefly speaking, the rules provide that first of all a preliminary electoral roll shall be prepared of every constituency by the Registering authority appointed for the purpose of preparing electoral rolls. In these preliminary electoral rolls names of all persons will be included who are in the corresponding area of the roll prepared for the Legislative Assembly and who reside within that constituency. Objections are to be called for and such objections when received are to be decided in the manner prescribed by the rules and thereafter a final electoral roll is to be published. This is the electoral roll upon which is based the municipal election.

So far as the constituency No. 11 is concerned, the preliminary electoral roll was made and published on January 9, 1965. The last date of filing objection was January 30, 1965 and the last date for deciding the objection to the preliminary electoral roll was February 13, 1965. In the preliminary electoral roll of constituency No. 11 the name of the Appellant was included as entry No. 1158 showing him residing at 38A, Nalin Sarkar Street. Objections were filed as to the inclusion of the name of the Appellant as also of his wife and daughter and several other persons and on or about February 10, 1965, the Revising authority made an order deleting entries Nos. 1158 to 1160 along with other entries. A copy of the objection dated January 30, 1965, together with the order of the Revising authority is at p. 25 of the paper book. It shows that the names of the Appellant and others were objected to and were deleted on the ground that they had left the area. The facts with regard to the objection are as follows: The objection was made by one Sukumar Ghosh on January 30, 1965. So far as the Appellant and his family are concerned, the objection was that they had left 38A, Nalin Sarkar Street and had not been residing there for more than 2� years. Mrinal Kanti Banerjee, a temporary assistant of the Election department, was entrusted by the Revising authority to serve notice regarding objection. He was entrusted with the task of serving notice of objection upon the Appellant. He has filed an affidavit affirmed in March, 1965, the copy of which is at pp. 26 to 28 of the paper book. He says that he went to 38A, Nalin Sarkar Street which is the address of the Appellant as given in the preliminary electoral roll and ascertained that he had long ago left the said address. He accordingly served the notice addressed to the Appellant by affixation in the presence of a witness Shri A. Datta who also signed as a witness. It is stated in the endorsement that Sri Datta belonged to the same premises namely, 38A, Nalin Sarkar Street. In fact, we have been informed that he is the owner of the house. Thereafter the Revising authority struck out his name from the preliminary electoral roll. This appears from the order of the Registering authority dated February 10, 1965, a copy of which is at p. 25 of the paper book. The final electoral roll of constituency No. 11 was published on February 20, 1965. The Appellant filed a nomination paper for standing as a candidate for councillorship of the Corporation on February 28, 1965. The Respondent No. 8 filed his nomination paper as a rival candidate. March 5, 1965, was fixed for scrutiny of nomination papers. On March 5, 1965, an objection was filed against the nomination of the Appellant. The ground was that the Appellant''s name did not appear in the final electoral roll published on February 20, 1965, but that his name had been struck out. The second objection was that in fact the Appellant did not reside within constituency No. 11 but lived with his family at A-244 Bangur Avenue within the jurisdiction of the South Dum Dum Municipality and that he had falsely given his address in the nomination paper as No. 357-C, Acharya Prafulla Chandra Road, which was a furniture shop and not a residential house at all. Along with the objection the objector filed a certified copy of the final electoral roll which showed that the Appellant''s name against serial No. 1158 stood deleted. He also filed a certified copy of the Ration card of the Appellant, a copy of which is at p. 49 of the paper book and annexure ''g'' in which the Appellant''s wife made the following endorsement on March 4, 1965, relating to the Appellant and various members of his family:

shifted from Calcutta area (38A, Nalin Sarkar Street) 2� years ago.

This Ration card has been endorsed by the Inspector of Rationing and the Rationing Officer, Dum Dum. Before the Returning Officer the Appellant supported his nomination by saying that his name did, appear in the final electoral roll, that there was no objection to the name so appearing and that if there was any deletion it was an interpolation. He produced a certified copy of the final electoral roll and claimed that his name appeared in it. I have already mentioned that the objector had produced a certified copy of the final electoral roll showing the deletion. What happened was as follows: The deletion was printed in a separate sheet. While the Appellant produced only one sheet showing his name, the objector produced two sheets, one containing the Appellant''s name and the other relevant sheet showing the deletion. This second sheet has not been produced by the Appellant. The Returning Officer went into the facts and was satisfied that the Appellant''s name was not included in the final electoral roll and that he was not qualified to stand for election. He rejected the nomination paper of the Appellant. Aggrieved by this order the Appellant moved this Court under Article 226 of the Constitution praying inter alia for a writ of mandamus directing the Election Officer and the Returning Officer to forbear from giving effect to the rejection of the Appellant''s nomination paper and to forbear from declaring the Respondent No. 8 as elected uncontested from constituency No. 36, as also for a writ of certiorari quashing the purported deletion of the Appellant''s name from the electoral roll of the constituency No. 11 and the order of the rejection of the Appellant''s nomination paper from constituency No. 36 as also orders, if any, passed in the meantime declaring the Respondent No. 8 as elected. Also he asked for writ of prohibition and ad interim injunction restraining the Respondent No. 6 from declaring the Respondent No. 8 as elected uncontested from the constituency No. 36. This application was considered by Banerjee, J. and for the reasons given in his judgment dated March 22, 1965, which is not out at pp. 71 to 101 of the paper book, the learned Judge dismissed the application and discharged the Rule. This appeal is directed against this order.

The first point which appears to us to be fatal for the Appellant in respect of his application is that the decision depends on numerous facts which are strongly contested. It is an established principle that disputed questions of fact cannot be decided in the writ jurisdiction. Let me recapitulate some of the contested facts. The first contested fact is as to where the Appellant resides. The address given in the Assembly electoral roll is 38A, Nalin Sarkar Street. In the petition he gives his address as 9/4, Nalin Sarkar Street. There are other addresses mentioned in various documents and proceedings, namely, 157-C Acharya Prafulla Chandra Road, 306, Acharya Prafulla Chandra Road and 244 Bangur Avenue, South Dum Dum. Without taking evidence it is impossible to decide as to where the Appellant does reside. Next comes the question of his name being included or not included in the final electoral roll. As regards this, the Appellant makes a serious charge of interpolation. Obviously, this charge cannot be substantiated without taking evidence. If the matter has to be investigated, it will have to be decided as to whether the Appellant was residing at 38A, Nalin Sarkar Street when the notice of objection was served. Apart from this, the case is bristling with disputed questions of fact. In fact, this point is so patent that Mr. Chatterjee had no answer for it. He has, however, tried to get out of the difficulty in the following way. He argues that for purposes of this application he was prepared to proceed on the admitted facts. He says that in this view of the matter he can no longer contest the service upon him of the notice of objection to his name being included in the preliminary electoral roll. He states, however, that upon the admitted facts it should be held that there was no proper service. Mr. Roy appearing on behalf of the Respondents has argued that the Court should take note of the fact that by now the Respondent No. 8 Shiv Kumar Khanna has been declared as elected and is functioning as a councilor of the Corporation and by a writ in the nature of mandamus the results of the election cannot be set aside, apart from the fact that there is no demand for justice of the Election Officer. He has also pointed out that if the Appellant had been aggrieved he should have filed an application by way of an election petition u/s 73 of the Calcutta Municipal Act which provides for an election petition before the Chief Judge, Small Causes Court, Calcutta and since he has not done so a writ petition will not lie as has been held by the Supreme Court in Rameshwar Vs. The State of Rajasthan, . It is doubtful whether the Appellant could have availed himself of the provisions of Section 73. If we take only uncontested facts into consideration, it follows that the Appellant''s name was not in the final electoral roll. Under the circumstances it is doubtful whether he could avail himself of the provisions of Section 73. Let me, however consider as to the nature of the contention put forward, based on uncontested facts. It must then be held that the Appellant''s name was not in the final electoral roll. That being so the Returning Officer had no option but to reject the nomination paper. If the Appellant is at all entitled to go further back, the position is that the ground now taken is that the Appellant was, in fact, served with notice of objection to his name appearing in the preliminary electoral roll but that the deletion thereof was made, not in accordance with law, because the manner of service was defective. No such ground has been taken in the petition and the learned Judge in the Court below rightly refused to go into the question. The clear case of the Applicant in his petition is that his name is in the final electoral roll, but that the copy produced by the objector was forgery and that no notice of any objection to his name appearing in the preliminary electoral roll was ever served upon him and in fact no such objection was ever made or decided. No such alternative case as stated above was ever made out. Some attempt was made in the Court below to cast doubt on the legality of the Rule 21, but the learned Judge said that as no such ground was taken challenging that rule he would not allow the same to be urged. The point in this form had not also been taken in the memorandum of appeal. The only point that has been taken is that no notice of the alleged local enquiry was given to the Appellant and therefore, the order passed by the Revising authority was illegal. No such ground'' had been taken in the original petition. In my opinion, the Appellant should not be permitted at this stage to take this alternative point which was never made before. I will, however, briefly deal with his point on its merits, because I think that it is not well-founded. The uncontested facts are as follows. The Petitioner was shown in the preliminary electoral roll as residing at 38A, Nalin Sarkar Street. There was objection to the inclusion of his name. Notice of this objection was attempted to be served upon him at this address. The serving officer went there, made enquiries and found that he had long ago left this place. He thereupon served the notice by affixation and made a return. On the date fixed for enquiry, the Appellant did not turn up and the Revising authority dealt with the matter on the available evidence including the return of the serving officer and decided that the Appellant did not reside in the said premises No. 38A, Nalin Sarkar Street and rectified the preliminary electoral roll. The relevant rules are Rules 15, 16, 19, 21(1) and 25(1). Rule 15 provides that claims and objections may be preferred in respect of the preliminary electoral roll and lays down the time within which it should be made and that it should be made before the Revising authority. Rule 19 provides that when such an objection has been made, notice shall be served by the Revising authority on the person concerned of the grounds of such objection and the time fixed for hearing. Rule 21(1) is as follows:

21(1). Every notice issued by the Revising authority shall be in writing and shall be served at the address as entered in the preliminary roll or at such other address as may be specified by the claimant or objector in his notice of claim or objection, the person objected to being served only at the address given in the roll.

Provided that a notice may be served by the Revising authority by sending it to the person concerned by post.

The relevant part of Rule 25(1) is as follows:

25(1). On the date fixed for the hearing or on such date to which the hearing may be adjourned the Revising authority shall hold a summary inquiry into the claims or objections preferred and shall record his orders either allowing and disallowing the claims or objections. He shall also, after considering any verbal or written objections that may be preferred, decide on any application made by the Registering authority for corrections to the roll under Sub-rule (1) of Rule 20. For the purpose of the enquiry the roll as published under Rule 10 shall be presumed to be correct and complete until the contrary has been proved. No party shall be represented by any legal practitioner at any proceeding under this rule.

It will appear from Rule 21(1) that the notice has to be served at the address as entered in the preliminary electoral roll and the person objected to must be served "only at the address given in the roll". The address given in the preliminary roll was 38A, Nalin Sarkar Street. No particular procedure has been laid down for the service of notice. If, therefore, a person can only be served at the-address given in the roll and he is not found there and the evidence is that he has left the place 2� years ago, then how can the service be effected? It will be observed that the rule does not merely provide service at the address as entered in the preliminary roll but "only" at that address. Therefore, the reasonable conclusion is that if the person is not found at that place, then service can only be by affixation at that address or by post. So far as the alternative mode of serving notice by post is concerned, it would only be addressed to the residence given in the preliminary electoral roll. That, in the present case, would not have advanced the matter any further because the letter would have come back, since the person had left premises No. 38A, Nalin Sarkar Street, a long time ago. Admittedly, he lives somewhere else. Coming now to Rule 25(1), it says that the Revising authority shall hold a "summary enquiry". This does not mean that the Revising authority must personally enquire into the matter. Like all administrative enquiries, it will have to be done upon the materials before the Revising authority. If a certain officer goes to a certain address to serve a notice, then his note or explanation as to why the notice could not be personally served, would have to be taken into consideration and it was quite proper to do so. If the Appellant was present at the enquiry he would have been apprised of the contents of that explanation so that he could object to it. But unfortunately, he was not present at the enquiry. The "summary enquiry" is not supposed to be like a judicial trial. It has to be done on the materials available, but not contravening the rules of natural justice. Since the Court is precluded from looking into the contested facts, it is not proved upon contested facts, that there has been a violation of the rules.

For the reasons aforesaid, I do not think that there has been any violation of the law. If it was permissible in this proceedings to decide contested facts upon the materials placed before the Court, I would have no hesitation in coming to the conclusion that the Appellant resides with his family in Bangur Avenue, South Dum Dum and not at 38A, Nalin Sarkar Street. However, in this application we need not go into the contested facts and upon uncontested facts no grounds have been shown for interference by this Court. The application was, therefore, rightly rejected by the Court below and the appeal is dismissed with costs.

The hearing fee is assessed at two gold mohurs for each set of appearing Respondents.

Masud, J.

I agree.