Ramesh Chandra Dutt vs Abdul Hamid Sardar and Others

Sinha, J.—The petitioner is a resident of village Dhopdhopi within the jurisdiction of the Dhopdhopi Union Board in the district of 24-Parganas. This Union Board was constituted by Government of Bengal Notification No. 3438 L.S.G., dated the 24th July, 1924, and consisted of certain Mouzas, particulars whereof are given in paragraph 2 of the petition. The Union Board of Ramnagor lies contiguous to the Dhopdhopi Union Board, and was itself constituted by a Notification No. 4949 L.S.G., dated the 3rd December, 1927, and comprises of Mouzas, particulars whereof are given in paragraph 3 of the petition. This application relates to a general election of the Dhopdhopi Union Board held on the 31st March, 1953. Prior to the holding of the general election, the electoral rolls were made and published in accordance with the Rules framed under the Bengal Village Self-Government Act. The petitioner did not put forward any objection to the electoral rolls, as made out and published, at any time. After the election had taken place, the petitioner preferred an objection before the Additional District Magistrate of 24-Parganas (Respondent No. 11) u/s 17B of the Bengal Village Self-Government Act. The principal objection taken was that the election was not restricted within the area which fell strictly within the Notification constituting the Dhopdhopi Union Board. It was alleged that some areas in the adjoining Union Board of Ramnagor have been included, whereas other areas which should have been included, for example Mouza Teurhat, had been wrongfully excluded. It was therefore said that the entire election was invalid, as a general election could not be held in an Union Board, including therein, areas that belonged to it and also areas that did not belong to it. Before this objection was heard by the learned Magistrate, this Rule was taken out on the 1st June, 1953 calling upon the opposite parties to show cause why a Writ in the nature of quo-warranto should not be issued directing the opposite parties Nos. to 9 to exhibit the authority by which they v/ere holding office and | or why a writ in the nature of mandamus should not issue directing the Respondent State to cancel Rule 2 of the Union Board Election Rules and | or why a writ in the nature of mandamus should not issue directing the Respondent District Magistrate to act in accordance with law and | or why a writ in the nature of mandamus should not issue directing the Respondent Election Officer to exclude the voters of Mouza Ramnagor from the electoral roll of Dhopdhopi Union Board and to include therein the voters of Mouza Teurhat, and to act according to law, and for other reliefs.

In the petition, it was stated that a petition had been made to the District Magistrate on the 27th May, 1953, but that he had failed to take any action on it. It appears, however, that on the very next day to the issue of the rule, namely, the 2nd June, 1953, the District Magistrate passed his order on the said petition. He conceded that the Union Boards were constituted by certain Notifications but proceeded to state that, since those Notifications had been published, there were settlement operations, and Mouzas have been changed in area, in some cases coalescing with others and in other cases being divided into several parts and being included in another Union. It is said that Government intended to publish appropriate Notifications to redefine the areas. The learned Magistrate therefore did not uphold the objection. In fact, what he said was that section 17B was concerned with a dispute as to election of a member, whereas the dispute before him was about the constitution of the Board, and that therefore the application was not maintainable. In this the learned Magistrate was clearly wrong. A Union Board when framed by a Notification must owe its origin to the Notification, and until another Notification is published changing the area covered by it. there is no justification whatsoever in holding a general election of the Union Board as consisting of areas not included therein or excluding areas included in the Notification constituting the Board. If any general election is held on a footing other than the notified areas, then clearly the persons elected had not been validly elected. In this respect, the constitution of the Board is interlinked with the validity of the election. I cannot see how the fact that the settlement operations have altered the areas can be a justification for taking into account areas which are not included in the Notification constituting a Union Board, or for excluding areas contained therein.

The question however is as to whether I can grant any relief in this application.

I must also mention that so far as this application is concerned, another point has been taken and it is this. The election, as has been held, has been held on the footing of the Union Board having been divided into several wards or constituencies. In the Bengal Village Self-Government Act itself, there is no provision for dividing a Union into wards. This power has been granted to the District Magistrate under Rules framed under the Act, by virtue of power conferred on Government u/s 101 of the Act. Rule 2 lays down that the District Magistrate shall decide in what manner each Union shall be divided into electoral wards and the number of members to be returned for each of such wards. Mr. Sen argues that the Rule militates against the provisions of the Act itself. He points out that there is nothing in the Act itself which limits the power of any voter to vote for the candidates of only one ward. The Act grants the power to every voter to vote for all the members of the Union that are to be elected. This point is however now covered by an authority of this Court. I myself dealt with the matter and held that the District Magistrate had the jurisdiction to divide a Union into wards and this has been upheld by a Division Bench of this Court in the case of Annada Prasad Guin & ors. v. Dt. Magistrate, Murshidahad, (1) (59 C.W.N. 1031). With regard to the other points mentioned above, I have already pointed out that although there might be much to be said on the merits, the question is whether I can grant relief in this application.

Mr. Das Gupta appearing on behalf of the respondents Nos. 10 to 12 points out that the rights conferred by the Act are statutory rights and therefore the voters must follow strictly the provisions of the Act. He points out that the objection of the petitioner really comes to this that the list of voters as published is wrong. In other words, names of voters have been included which should not have been there and others have been left out which should have been there. The Rules provide for the manner and mode of objections that are to be preferred in such a case. The petitioner could have objected to the electoral roll at the proper time. If the decision went against him, the next step was to prefer an objection u/s 17B of the Act before the District Magistrate. Mr. Sen argues that here again the Rules could not take away a right which he possessed u/s 17B, in other words, if he had any dispute to refer to the District Magistrate, it is not a condition precedent that he should have followed the procedure laid down in the Rules. It is not necessary to decide this particular question because the petitioner did object before the learned District Magistrate and obtained a decision thereon. But section 17B also lays down that a further revision would lie to the Commissioner whose decision would be final. The petitioner never preferred any application for revision to the Commissioner. He has therefore omitted to take a step, or avail himself of a legal remedy, granted to him under the Act. Had he gone up in revision to the Commissioner and if the Commissioner gave the same reasoning as the learned District Magistrate, it might have been argued that the error appeared on the face of the judgment. It is however un necessary to speculate on this, because in fact no step was taken for applying in revision to the Commissioner. I agree with the proposition put forward by Mr. Das Gupta that in the matter of election, we are concerned with rights given by a Statute, and the ''procedure mentioned therein must be strictly followed, and if not followed, an application under Article 226 of the Constitution should not ordinarily be allowed. It is true that in section 17B it is said that the decision of the Commissioner shall be final, but that will not exclude the jurisdiction of this Court to interfere, if an error appeared on the face of the order, or if there was any excess of jurisdiction.

The petitioner however did not exhaust his remedies under the Act. In fact, he did not choose to proceed according to the Act or the Rules framed thereunder, save and except making an application u/s 17B of the Act. Under the circumstances this application ought not to be entertained. The result, therefore is that this application must fail and the Rule must be discharged. Interim order, if any, is vacated. There will be no order as to costs.