Nand Lal Gupta vs Commissioners of Arrah Municipality and Others

Agarwala, J.—This appeal is by the plaintiff. The defendants first party are Commissioners of the Municipality at Arrah and the defendant second party is a person who claims to have been elected a Commissioner of the Arrah Municipality. The suit was for a declaration that the election of the defendant was illegal and void and to restrain him from functioning as a Commissioner of the Arrah Municipality. In this second appeal the only question that arises is whether defendant 2 was qualified to stand as a candidate for election to the Arrah Municipality. The determination of this question depends on the construction of the Bihar and Orissa Municipal Election Rules of 1937 which are rules framed under the Bihar and Orissa Municipal Act and have statutory force. Rule 20 of these rules provides that "any person entitled to vote under these rules shall be qualified to be elected as a Commissioner." The question which prima facie therefore, arises is whether defendant 2, at the last election, was a person entitled to vote under the rules. Rule 18(1) declares that "the electoral roll or rolls made and revised under the preceding rules shall be the final electoral roll" and Sub-section (2) of that section declares that "every person whose name is entered in the final electoral roll shall be deemed to be registered as a voter and shall be entitled to vote at an election." Beading Rule 18(2) with Rule 20 we, therefore, have it that a person is qualified to be elected as a Commissioner if he is a person whose name is entered on the final electoral roll. There is no dispute that the name of defendant 2 was entered in the final electoral roll at the time of the election, but it is contended, his name has been imporperly entered in the roll, that is to say, that he was a person not qualified to vote. Rule 6 prescribes the qualifications of voters. That rule provides that:

A person shall be qualified to be or included in the electoral roll of a Municipality if he resides within the Municipality, and... (b) was during the previous financial year assessed to an aggregate amount of not less than one rupee eight annas as Municipal tax.

Defendant 2 is a member of a joint Hindu family and was not personally assessed to any tax at all. Rule 9 deals with the case of registration in case of a joint Hindu family and prescribes that in such a case the person to be registered shall be the manager of the family. Defendant 2 is not the manager of the family but his name appears to have been entered on the electoral roll because the manager of the family purported to authorize the registering authority to enter the defendant''s name as representing the family I think it is clear that the registering authority should not have entered the name of defendant 2 on the electoral roll of this Municipality; and the question that arises, therefore, is, what is the effect of this improper entry of the defendant''s name in the electoral roll? Rule 20 which defines the qualification for election is to my mind quite clear and unambiguous that any person is entitled to be elected a Commissioner provided only that he is a person entitled to vote; and rule 18(2) is equally clear that every person whose name is on the electoral roll is entitled to vote.

On behalf of the plaintiff, however, reference was made to the decision of Divatia J, in Vinayak Vasudeo Mehendale Vs. Gopal Chimnaji Bhate, . That was a suit for declaration that plaintiff and defendant 3 were duly elected members of a District Local Board. The plaintiff and the three defendants in the suit had been candidates for two seats at a Municipal election. All four persons were duly nominated as candidates. At the scrutiny of the nomination papers however, the plaintiff objected to the nomination of the first two defendants on the ground that neither of them was the manager of the joint Hindu family to which he belonged and that, therefore, they were not qualified to be voters. The objection was overruled and the nomination of the defendants was accepted. The plaintiff thereupon instituted a suit for the declaration mentioned above. The suit was decided after the election had taken place and was dismissed. Thereafter the plaintiff filed an election petition challenging the election of defendant 2 and also filed an appeal against the order dismissing his suit. It was held that the suit was maintainable and that the plaintiff was entitled to the declaration which he sought on the ground of the defendant not being a qualified candidate although his name appeared in the finally published list of voters. This case was decided on the provisions of the Bombay Local Boards Act, 1923. The provisions of that Act have not been placed before me so that I do not know whether in that Act there are provisions of the nature of Rule 18(2) and Rule 20 of the Rules with which I am concerned. No authority is cited in the judgment of the learned Judge who decided that case.

A case in point is that of Stowe v. Jolliffe (1873-74) 9 C.P. 734. That was a case under the Parliamentary Elections Act, 1868 (31 and 32 Vict. c. 125) and was heard on a case stated by Mellor, J. The petitioner prayed for determination that the respondent had not been elected or returned as a member of the Parliament by a majority of legal votes. The validity of a number of votes cast or behalf of respondent was challenged. Lord Coleridge C.J. stated the question on which the parties were at issue to be (1) whether the register was conclusive as to the right to vote on the part of all or some of the voters; and (2) whether some of the voters came within the proviso of the seventh section of 35 and 36 Vict. c. 33. He referred to Section 79, Registration Act (6 and 7 Vict. c. 18) which enacts:

At every future election for a member or members to serve in parliament for any county, city, or borough, the register of voters so made as aforesaid shall be deemed and taken to be conclusive evidence that the persons therein named continue to have the qualifications which are annexed to their names, respectively in the register in force at such election.

It was held in that case, on a construction of Section 79, Registration Act, and Section 7, Ballot Act, 1872, that the register was conclusive not only on the returning officer, but also on any tribunal which has to inquire into elections, except in the case of persons ascertained by the proviso to Section 7, Ballot Act, that is to say, persons prohibited from voting by any statute or by the Common Law of Parliament. The ground on which the votes in the case had been rejected was that the voters were persons who were disqualified from voting on account of their having been recipients of alms and in spite of their having received alms their names were entered in the electoral roll. That case has been followed in The Pembroke Boroughs (1901) 5 M & H 135 Channell, J. observed at p. 144 as follows:

When it is said that the register is to be conclusive, what is meant is that the errors in it must stand. If it were always absolutely correct there could be no importance in saying that it was to be conclusive. It seems to me that the policy of the Legislature has, from the time of the Reform Act of 1832 until the Ballot Act, been to make it necessary to raise all questions as to rights to vote in the Registration Court, and to do this by preventing their being raised at any other time or in any other manner.

With reference to the contention on behalf of the petitioner in that case that persons on the electoral roll were not entitled to vote because they should not have been on the roll, Darling, J. observed at page 137:

Now I cannot agree with that view of the case. It may be that they are not entitled to be on the register, it may be that they are not entitled to vote; but there are many people on the register who as a matter of law and as a matter of fact, if you could go behind the register, could be shown not to be entitled to be there. And when you say that the register is conclusive, as has often been said what you mean is this, that it is conclusive that the people who are on it have the qualification which entitles them to be there. It may be that they are not to be entitled to vote by reason of the seventh section of the Ballot Act, but the mere fact that there is a conclusive register supposes this that there are people on it who, if you could go into their qualifications again after the Revising Barrister has gone into them, are people who have no right to be on it... It may be that their names ought not to have been there, but they were there at the time of this election, and I think they cannot be said to have been less a part of the register than the names of any other persons who may be on the register without a qualification.

His Lordship went on to observe with regard to the electoral roll that the intention of the Legislature was

to compile a list which, except in certain special circumstances which are provided for, should be conclusive as showing that these people had passed a test as to whether they were to vote or not, and had been declared to have satisfied that test

Another case material for the present discussion is that of Reg. v. Tugwell 868, 3 Q.B. 704, which arose on an information in the nature of go warranto calling upon the defendant to show cause by what authority he claimed to have and use the office of the town council or of the borough of Scarborough. In that case by mistake the name of a burgess had been entered in the electoral roll of two wards. No objection had been taken and the burgess had voted in one of the wards. It was held that no objection having been made to the revision Court the vote of the burgess in question was valid. It has been contended before me that a person authorized to compile the electoral roll under the municipal rules is authorized only to enter the names of persons legally qualified to be on the roll and, if the name of a person is entered who is not so qualified, the registering authority acts without jurisdiction in entering the name of such unqualified person. Precisely this point was raised in Reg. v. Tugwell 1868, 3 Q.B. 704 where Blackburn, J., observed, after referring to the statutory provisions governing the matter before him:

It is clear from these enactments, by which careful provision is made for revising the burgess lists, that the burgess roll ought to contain the names of all persons entitled to vote and that no person whose name is not in the roll can vote, and the Legislature intended the burgess roll to be conclusive on the point. The only argument that can be suggested against this view is founded on Section 9, and it is said that it is only persons duly enrolled according to the provisions of that Act who shall be burgesses of a borough; but I think that there is no weight in the argument as a careful provision is made for revising the lists.

In the rules under consideration the procedure for compiling the electoral roll is equally careful. Although these rules do not use the word "conclusive" in reference to the roll they declare the roll to be "final" which amounts to the same thing. In the case in In the Matter of Amulyadhan Addy AIR 1919 Cal 174 an application was made for a declaration that the nomination of a certain candidate for election to a municipality was invalid by reason of the fact that it was signed by persons who were not qualified to be voters although, in fact, their names were on the electoral roll. Chaudhuri, J. observes: "I have no power now to interfere with an Election Roll apparently carelessly prepared", and dismissed the application.

It has, however, been contended on behalf of the appellant that, by reason of Section 9, Civil P.C., the present suit is maintainable. Reference was made to the decision in Kali Prosad Singh Vs. Makutdhari Prosad Sinha, .In that case the District Magistrate, purporting to exercise statutory powers under the District Board Electoral Rules, decided a question which was not within his province to decide at all and it was held that his decision was open to challenge in a civil Court. In Rathis Chandra Munshi and Another Vs. Amulya Charan Ghatak, a suit was held to lie in the civil Court to set aside the election of a candidate whose nomination paper had been filed out of time. In Rathis Chandra Munshi and Another Vs. Amulya Charan Ghatak, the District Magistrate had given a decision on a question which he had no jurisdiction to decide at all and it was held that the civil Court was competent to entertain a suit which had the effect of reversing the decision of the District Magistrate.

These cases are of no assistance in the present matter. There is no doubt that the person who entered the name of defendant 2 in the electoral roll was a person empowered to decide whether that name should be entered or not. In coming to his decision, a mistake has apparently been made, but that does not affect the jurisdiction of the registering authority to decide the question. The fact is that, as a result of a mistake bona fide made, the name of defendant 2 is on the final electoral roll and he was, therefore, a person entitled to vote and hence, 1 by reason of Rule 20, a person qualified to be elected a Commissioner. The appeal is dismissed with costs to defendant 2. I assess the hearing fee at two gold mohurs.