JAGANNATH SHARMA Vs. ONKAR SINGH AND ANOTHER

JUDGEMENT

(1.) This petition for writs of certiorari, prohibition and mandamus has been filed in the following circumstances:-

(2.) An election of the Municipal Board, Mussoorie, was held in 1957. From ward no. 4, Kulri, three members were to be elected, each elector having three votes. An electoral roll was prepared for the ward as required by the U.P. Municipalities (Preparation and Revision of Electoral Rolls) Order, 1953, and five candidates were nominated, including the petitioner and opposite-party no. 2. Sri Gopal Datta, Dr. R. Prakash and the petitioner secured largest numbers of votes, viz. 481, 469 and 453 respectively, and were declared duly elected from the ward. Opposite-party no. 2 secured 420 and the fifth candidate Kirpal Singh, 412. Two election petitions were filed to challenge the election of the petitioner, one by opposite-party no. 2 and the other by Kirpal Singh. We are not concerned with the election petition of Kirpal Singh. The main allegations in the election petition of opposite- party no. 2 were that the petitioner was elected "by reason of improper admission of votes from nos. 2130 to 2422 of the electoral roll of the said ward no. 4 and he has not been elected by a majority of lawful votes," that the names of voters entered in the electoral roll at nos. 2130 to 2422 were added subsequently and did not legally form a part of the electoral roll and the voters were not entitled to cast their votes at the election and that the result of the election had been materially affected by the non-compliance with the provisions of Secs. 12-B, 12-C, 12-D, 12-E, 12-G and 13-E(1) and (3) of the U.P. Municipalities Act and RR. 7 to 15 and 17 of the U.P. Municipalities (Preparation and Revision of Electoral Rolls) Order and also by certain errors, irregularities and informalities committed by the Electoral Registration Officer. The errors, irregularities committed by the Electoral Registration Officer were said to be that he entertained claims for entry in the electoral rolls though they were vague, that he disallowed permission to a pairokar of the petitioner to inspect the claims, that he did not hold any inquiry into the claims and did not apply his mind to every claim individually, that he added names of certain claimants in the electoral roll of ward no. 4 even though their names were entered in the electoral roll of ward no. 5, that after it was finally decided during the preparation of the Assembly Electoral Roll that the persons did not reside in ward no. 4 and had, therefore, no residential qualification to vote in it, he had no jurisdiction to entertain their claims and hold that they did possess the residential qualification for ward no. 4, that the list of the added names was not published by him in the prescribed manner, that the electoral roll became final and was published as such on 16-9-1957, that the petitioner applied on 9-10-1957 for enrolment of 244 voters, that the prescribed enrolment fee of Re. 1/- per voter was paid by the petitioner and Dr. R. Prakash, that the application was supported by a false affidavit to the effect that the voters were more than 21 years of age and were residents of ward no. 4, that the Electoral Registration Officer did not permit his pairokar Lachhman Das to inspect the claims and consequently he could not file proper objections against them, that some of the claims were on behalf of bogus or fictitious persons, some were on behalf of minors and some were on behalf of persons who were disqualified to vote, that no orders were passed by the Electoral Registration Officer on the claims, that only at the time of poll on 16-10-1957 it was found that the claims had already been allowed and that entries were made at serial nos. 2130 to 2422 in hand in the electoral roll, that about 200 of these persons cast their votes and cast them in favour of the petitioner and but for their votes the opposite-party would have secured the highest number of votes, that no printed copy of the electoral roll containing the entries at nos. 2130 to 2422 was made available for sale to the opposite-party as was required under R. 17 (5) read with R. 15 (6) of the (Preparation and Revision of Electoral Rolls) Order and that there was no publication of the electoral roll containing the additions. The election petition was opposed by the petitioner and one of the pleas that he took was that Sec. 19 (2) (a) of the Act specifically prohibits questioning of an election on the ground that the name of any person not qualified to vote had been inserted in the electoral roll. The election petition is being heard by opposite-party no. 1. He framed no less than 17 issues; issues 1, 2 (a), 2 (b), 3, 4, 8, 9, 10, 11, 14, 15 and 16 deal with the above-mentioned allegations in the election petition in respect of the addition of the names of the electors at serial nos. 2130 to 2422 of the electoral roll and the hearing of the claims. The petitioner moved opposite-party no. 1 to try these issues first, but he refused to do so, being of the view that the election petition could not be disposed of piecemeal. Thereupon the petitioner filed a writ petition in this Court, petition no. 683 of 1959, for a writ of prohibition restraining him from inquiring into the matter relating to the addition of the names at nos. 2130 to 2422 of the electoral roll. This Court on 18-10-1959 directed opposite-party no. 1 to frame an additional issue "whether in view of the Full Bench decision . . . ., it is open to the Tribunal to enquire into any of the issues nos. 1, 2, 2 (a), 2(b), 2(c), 4, 7, 8, 9(a), 9(b), 11, 15 and 16 and, if so, into which of them" and determine it as a preliminary issue. In compliance, opposite-party no. 1 framed and tried the issue, held that the Full Bench decision did not apply to the facts before him and that he was competent to decide all the issues. Thereupon this petition was filed. The reliefs claimed are a certiorari to quash the order of opposite-party no. 1 that the Full Bench decision did not apply to the facts of the case and he was competent to decide all the issues, a prohibition restraining him from proceeding with the consideration of issues 1, 2, 4, 7, 8, 9, 11, 15, and 16 and a mandamus commanding him not to exceed his jurisdiction. After admitting the petition this Court issued an interim order forbidding opposite-party no. 1 to try issues 1, 2, 4, 7, 8, 9, 11, 15 and 16.

(3.) Rules regarding electoral rolls are contained in Secs. 12-A to 12-H of the Municipalities Act and in the U.P. Municipalities (Preparation and Revision of Electoral Rolls) Order, 1953. There must be an electoral roll for every ward prepared in accordance with the provisions of the Act; it is to be prepared by the Electoral Registration Officer after adopting the Assembly Roll. Every person who is qualified to be registered in the Assembly Roll of the ward is entitled to be registered in the Municipal Electoral Roll of the ward, but a person who is disqualified for registration in the Assembly Roll is disqualified for registration in the municipal electoral roll and his name must be struck out from the roll. No person is entitled to be registered in the electoral roll of more than one ward. The electoral roll of each ward must be revised every year. The State Government has power to make provision in respect of certain matters by an order. The (Preparation and Revision of Electoral Roll) Order contains rules regarding the preparation of electoral rolls, publication, claims to inclusion of names in a roll, particulars to be furnished by every claimant, hearing and decision of claims, amendment of tolls and the annual revision of rolls.