Narayan Prosad Ghosh vs Corporation of Calcutta

Chatterjee, J.—This is an application under Article 227 of the Constitution against the decision of the Chief Judge, Small Cause Court, Calcutta, on an election petition.

The question involved in this case is whether a person who has been validly nominated as a candidate, if defeated, may challenge the validity of the election. The answer given by the trial authority is that some of the candidates cannot and the Petitioner in particular cannot challenge the validity of the election. The decision of the Chief Judge, Small Cause Court, Calcutta, who is the Election Judge, is supported by the observations of this Court in a decision of McNair, J. in Champalal Gupta v. Mohanlal Makkar (1936) 41 C.W.N. 488. The answer to this question largely depends on the interpretation of Section 73 of the Calcutta Municipal Act and construction of that section with reference to Sections 52, 53 and 54 and some other sections of that statute. Hence, Section 73 may be referred to at once, which for the present purpose may be read as follows:

73(1). ...if the validity of any election is questioned, whether by reason of...or for any other cause, any person enrolled in the electoral roll may, at any time within eight days after the said publication, apply to the Chief Judge, Small Cause Court of Calcutta.

The question is, what is the meaning of the phrase ''any person enrolled in the electoral roll''? It is urged on behalf of the Petitioner that the aforesaid phrase may be interpreted to mean any person enrolled in the ''electoral roll of any constituency'' and the interpretation of the opposite party is that the aforesaid phrase means any person enrolled in ''the electoral roll of that constituency'', that means, the constituency the election from which is challenged. Hence, it is urged and it has been held by the trial Court that a person, whose name does not appear in the electoral roll of the constituency in question, is not entitled to challenge the election; it follows if he be a candidate of the constituency in question though he cannot challenge the election, he may still be a proper party to an election petition filed by somebody else.

This leads us to consider certain other relevant sections in the chapter. Section 48 provides that 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. The next relevant section is Section 52 which for the relevant purpose is as follows:

An electoral roll shall be prepared for every constituency on which shall be entered the names of the persons appearing to be entitled to be registered as electors for that constituency....

Hence, the electoral roll is to be prepared for each of the constituencies and, therefore, there may be as many electoral rolls as there are constituencies. Section 52, Sub-section 5 provides as follows:

The electoral roll shall come into force from the date of its republication under Sub-section (d) and shall, subject to revision and further republication under Sub-section (5) remain in force for a period of four years from such date.

The phrase ''the electoral roll'' may mean in the context of Section 52(5) the electoral roll for that constituency. Sub-section 2 refers to the method by which the electoral roll shall be revised and Sub-section (5) says how the electoral roll shall come into force. Hence, Sub-section (5) refers to the electoral roll of that constituency. Sub-section (6), however, provides ''the electoral roll as finally published shall be the electoral roll for any general election''. The phrase ''the electoral roll'' in Sub-section (6) does not refer to the electoral roll for any one of the constituencies it refers to all the electoral rolls collectively. Section 53 provides that

every person registered on the electoral roll for the time being in force for any constituency shall while so registered be entitled to vote for that constituency.

Hence, a person whose name is enrolled in one electoral roll for one constituency cannot vote in another constituency; but Section 54 provides that no person shall be eligible for election as a councillor to represent a constituency unless his name is registered on the electoral roll of that or of any other constituency.

The result of Sections 53 and 54 is that a person of one constituency may stand as a candidate for any other constituency provided his name is on the electoral roll of any constituency; but if he stands for an election for any other constituency where his name is not enrolled as a voter he will not be able to vote for himself. In the aforesaid context we have to interpret the phrase ''any person enrolled in the electoral roll'' and construe it with reference to Sections 52, 53 and 54.

The Legislature has not expressly stated whether the phrase in ''the electoral roll'' in Section 73 would refer to ''the electoral roll of any constituency'' or ''the electoral roll of that constituency'' or ''the electoral roll for any general election'' (vide Section 52(6)). It is urged that if Section 73 is construed with reference to Section 54 the result would be disastrous, because in that case in this big city of Calcutta where the Corporation covers an extensive area, any voter in one corner of the city may challenge the election in another corner and it is urged that the Legislature never intended that a person who is not at all interested in a constituency and who has no right to vote in that constituency will still challenge an election with regard to a constituency in which he has no interest to vote.

An election may ordinarily be challenged by a candidate or by a voter. An interested voter may challenge the election. The voter who is not interested in a constituency may not be expected to challenge the election from that constituency for the reason that he is not interested in that constituency. Hence, there is some substance in saying that a person who has no right to vote in a particular constituency has also no right to challenge the election of that constituency. This may also follow from Section 53 of the Calcutta Municipal Act. That section gives an elector a right to vote only in the constituency where the electoral roll includes his or her name. Hence, if Section 73 be construed with reference to Section 53 only, I may be inclined to agree that a person enrolled in the electoral roll of the constituency in question can only dispute the validity of the election from that constituency. But if construed with reference to Section 54, we would see that a candidate for a constituency may be chosen from the electoral roll of any constituency. Hence, Section 54 suggests that the phrase ''electoral roll'' in Section 73 may refer to ''the electoral roll of that constituency or of any other constituency''. Again, Section 52(6) suggests that the phrase ''the electoral roll'' in Section 73 may mean ''the electoral roll for the general election''. Reading, therefore, Section 73 with Section 53, reading Section 73 with Section 54 and reading Section 73 with Section 52(6), Section 73 leads to different conclusion. In such circumstances we have to interpret the words ''the electoral roll'' and construe it with reference to the Act.

It seems to me to be absurd that a person who may be validly nominated would not be free to challenge the election if he is defeated. The election officer in the Hand-Book for Candidates for General Election to Corporation of Calcutta at p. 19, chap. XIII, gives the following instruction:

If you are unsuccessful in the election and desire to challenge your rival''s election, you have to file an election petition before the Chief Judge, Small Cause Court of Calcutta.

This hand book is not of any authority and this would not influence us in the construction of Section 73; but all that I mean to say than an election officer, who wrote the Hand-Book for the Candidates for the General Election to the Corporation of Calcutta, took it for granted that any candidate could challenge the election.

It may be said that the Legislature has not given such a candidate the right to dispute. It is further stated that as the Legislature has not granted that right to the candidate it must be deemed to have been refused. I am not inclined to accept that interpretation. Crowford on the Construction of Statute observed as follows in Article 168 at pp. 267-68:

...Thus, a statutory grant of a power, privilege or property carries with it, by implication everything necessary to its enjoyment or exercise.

Here the statute granted the privilege to an elector of another constituency to stand as a candidate for election. If this privilege is to be fully exercised, he must have the right to protect himself from the injury by improper exercise of such privilege by others. If he is not granted that right, the necessary consequence would be that the granting of the right would be meaningless. It is absurd to say that a person should be a candidate for an election without a right to challenge the election concerned. It is difficult for me to conclude that the Legislature would take such an unreasonable view of the matter and debar some of the candidates from disputing the election. For that reason, I do not think Section 73 should be construed with reference to Section 53 only.

If it is construed with regard to Section 54 only, the result would be that a voter of any other constituency would also be entitled to challenge the election. The Legislature, I think, might have intended to avoid this as well. The Legislature might not have allowed the voter of one constituency to be a candidate for another constituency. If they did so, there would be no conflict in interpreting Section 73. But they have provided that such a voter may stand as a candidate for election from any other constituency. It would be absurd to deny him the right to challenge the election; it would be unreasonable also to deny him the right to dispute the validity of an election. Finally, if interpreted in that way it may be making some discrimination as between the candidates. I find no reasonableness in such discrimination. Section 56 provides that subject to the provision of Section 54 any person may be nominated as a candidate for election for any constituency.

It may be urged that Section 54 and Section 56 having granted to any voter a right to contest the election from any constituency, the right of the candidate to dispute the election is implied thereby and Section 73 merely grants to the voters only the right to dispute an election, but Section 73 is the only section which defines the persons who may dispute an election; because Section 75 provides:

If in any proceeding instituted u/s 73, the Chief Judge, Small Cause Court, is of opinion that--

(a)....

(b)....

(c)....

he shall make an order setting aside the election....

Hence, an election can be set aside only by a proceeding u/s 73 and not otherwise. The reason is that a new right is created and a new remedy is provided in the same statute, that remedy is the only remedy: Woolverhampton Water Works v. Hawkesford (1859) 6 C.B. (N.S.) 336. No person not included in Section 73 can dispute the election. Candidates from another constituency cannot rely on Section 54 to challenge the election. Section 75 is the bar. Hence, the construction that Section 54 gives right to the candidates to dispute and Section 73 gives the voters the right to dispute an election cannot be accepted.

Anyone of the class of persons ''enrolled in the electoral roll'' can dispute the election u/s 73 and u/s 75, no other person than those referred to in Section 73 can challenge the same. That person may be the one whose name is in the electoral roll of that constituency as in Section 53 or the person whose name is in the electoral roll of that or any other constituency as in Section 54 of whose name appears in electoral roll for the general election as in Section 52(6). The first construction will make the scope too narrow because candidate from other constituency will be excluded and the second construction may make too broad because a number of undesirable persons would also be included.

Still the ordinary meaning of Section 73 is stated to be that any person enrolled in the electoral roll of that constituency will only dispute the election. But,

if this ordinary meaning leads to manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put which modifies the meaning of the words and even the structure of the sentence.--Maxwell.

The purpose of Section 54 is any person enrolled in any electoral roll may be nominated a candidate. If so, he may have by implication the right to contest the election. But the ordinary meaning as aforesaid will contradict that apparent purpose of the enactments in Section 54. If this ordinary meaning is given effect to, it will cause absurdity inasmuch as a candidate will have no right to challenge the election. It goes without question that such hardship or injustice to the candidate from another constituency was presumably not intended. In such circumstance ''exceptional construction'' as in chap. IX, Maxwell, is allowed. The rules of grammar yield readily in such cases to those of common sense. (Maxwell, chap. X, Section 1). But, is that the ordinary meaning?

Again, the consequence of construing the phrase ''any person enrolled in the electoral roll'' in Section 73 to mean ''any person enrolled in any electoral roll'' is that not merely candidate from another constituency will challenge the election, but an elector of another constituency may also dispute. The Legislature has not indeed expressly provided that such voters on the electoral roll will not dispute. In that case they would have expressly included the phrase ''of that constituency'' after the phrase ''the electoral roll'' in Section 73. Section 73 of the Act should not in my opinion be construed with reference to Section 53 alone for the reason that (a) such interpretation will lead to the absurdity that a defeated candidate cannot challenge the election, (b) such injustice and hardship to the defeated candidate cannot be presumed to be contemplated by the Legislature and (c) such interpretation will introduce discrimination between the candidate of that constituency and the candidates of any other constituencies. There is no reasonableness in such interpretation, (d) and finally such interpretation will introduce conflict between Section 54 on the one hand and Sections 73 and 75 on the other. Hence, interpretation with reference to Section 53 only has to be rejected. The construction of Section 73 with reference to Section 54 only does not seem to be very proper. If the Legislature intended such reference they would have used the same language as in Section 54. They have not. They might have thought that it would be too broad.

Section 73 has the reference to a general election. Keeping that in mind Section 73 was drafted. Hence, when this section referred to the electoral roll it must have referred to the ''electoral roll for the general election''. It was urged that the Calcutta Municipal Act referred to various electoral rolls for various constituencies and there was no one general electoral roll for the constituencies. But Section 52(6) refers to the ''electoral roll for the general election''. The phrase refers collectively to all the electoral rolls of all the constituencies.

In the context of Section 73 which refers to general election I am of opinion that the phrase ''the electoral roll'' without more, refers to ''the electoral roll for the general election''. As it refers to that general electoral roll no particular reference was made as in Section 53 or Section 54. This may imply the same result as by interpreting this with reference to Section 54. The interpretation has a further challenge. If one voter of the constituency cannot vote in another constituency, why should he be allowed to challenge the validity of an election in a constituency in which he has no interest. I find some substance in that. But if the Legislature has not provided for the same, we can do very little.

I have been referred to a decision of this Court of McNair, J.; the circumstances of that case disclose that an election petition was dismissed. Thereafter, another person wanted to be substituted in the original petition and to proceed with the same. The original Petitioner withdrew his claim. It was held that an application for substitution could only be made within the time specified u/s 45 of the Calcutta Municipal Act then in force. It was further held that all the proper parties being on the record in the original petition there was no ground for substituting or adding another person. It was further found that in any case the application for substitution not being made within eight days from the gazette publication and being made by a defeated candidate, who was a Respondent to the original petition and who took no interest therein, the same could not be allowed, there being nothing to show that the original petition was made by the Petitioner therein in a representative capacity The question was whether an application for substitution could be allowed in such circumstances of that case and it was decided that no such application could be made. It was, however, observed at p. 491 as follows:

The present Petitioner Rupnarain Gadkar is not an elector in Ward No. 5 and he, therefore, has no right to be the Petitioner. Then assuming that he had the right, in my view, this application ought to have been made within the time specified by Section 46.

Section 46 of the Act of 1923 is the same as Section 53 of the Act now in force and Section 27 of the old Act of 1923 is, however, slightly different from Section 54 of the Act now in force. But effect of Section 27(1) read with Section 23A of the Calcutta Municipal Act of 1923 is the same as Section 54 of the Calcutta Municipal Act. No point was urged in that case as to whether the phrase ''enrolled in the electoral roll'' referred to the electoral roll ''of that constituency'' or not. That matter was not finally decided in that case. No argument was also advanced with regard to that matter in that case. The observation appears to me to be in the matter of an obiter because that was not the basis of the decision. It was accepted that even if that interpretation be accepted the application would not be within time. The essence of that decision related to substitution beyond time. In my opinion, therefore, the observations made in the Calcutta Weekly Notes Supra by McNair, J. are in the nature of an obiter.

I hold the phrase ''the electoral roll'' u/s 73 does not mean ''the electoral roll of that constituency'', but it means ''the electoral roll for the general election''. The result may be that any elector of any constituency may dispute the election of any other constituency. If that is what the Legislature thought proper, I find no reason to call it improper.

The Court below thought that such an interpretation would introduce a very large number of applications. It is true, elections are disputed, but it is also true that the same election is not challenged by many and if it be challenged the cases may be consolidated into one, but the fact is that it is not the majority of the electors who dispute an election but a microscopic minority of electors who dispute it. Therefore, the said consideration has no much force.

The result, therefore, is the Rule is made absolute, the order of the Court below set aside and the Tribunal is directed to proceed with the case in accordance with law and in accordance with the observations aforesaid. No order for costs.