SHANKARLAL JADHAVJI JOSHI Vs. MUNICIPAL COMMISSIONER OF BOMBAY

JUDGEMENT

(1.) THIS is a petition filed by the applicant under Section 45 of the Specific Relief Act for an order requiring the respondent, the Municipal Commissioner of Bombay, who is a person holding a public office within the meaning of that section, to forbear from doing certain specific acts mentioned in the petition in connection with the Municipal elections held in Bombay on February 7 last. The city of Bombay is now divided into nineteen wards for the purposes of elections, and the applicant is enrolled as a voter in ward No.6 (Bhuleshwar and Market) in the Municipal electoral roll for the city of Bombay. His name appears under serial number 7895 in the ward roll of that ward. The applicant's case is that the ward lists for the nineteen wards upon which the electoral roll was founded on or about December 20, 1938, are not, to use the words of the petition, "prepared strictly in accordance with the mandatory provisions of Sub-section (3) and (4) of Section 19 of the said Act" (meaning the City of Bombay Municipal Act of 1888), that therefore there was no proper electoral roll in operation at the date of the elections, and that the elections held under that roll are in law a nullity. The applicant accordingly prays for an order requiring the Municipal Commissioner to forbear from doing the acts specified in para. 16 of the petition: (a) To cause Lists prescribed under Clause (k) of Section 28 of the said Act to be prepared for each Ward and made available for sale or inspection in the Commissioner's Office (b) To declare the result of the said so called General Elections of councillors under the provisions of Section 32 of the said Act, and (c) To fix the requisite notice in respect of the result of the said so called General Elections of councillors under the provisions of Section 32 of the said Act.

(2.) THE petition was filed on February 18 last, and on the same date counsel for the applicant applied for and obtained a rule calling upon the Municipal Commissioner to show cause why the order applied for should not be made. It was also alleged in the petition that the applicant had, by his notice, dated February 15 last, asserted his right in the matter, and required the Municipal Commissioner to forbear from doing the specific acts and to inform the applicant accordingly, but he had failed and neglected to do so. That statement appears in para. 18 of the petition, and on the strength of the statement an order for interim stay was made till Tuesday last when the rule was argued in Court.

(3.) COUNSEL for the applicant argued that the provisions of Section 19 (3) and (4) are mandatory. COUNSEL for the Municipal Commissioner argued that they were directory, and that in fact the grouping according to communities was made only for the sake of convenience at the time of voting. No doubt, the words "shall be made," "shall be arranged," "shall enter" are mandatory words; but on a close examination of the Sub-sections I do not find anything in them which prevents the voters being grouped according to communities, for the ward lists would still be in alphabetical order, though literally the names of the voters appearing in alphabetical order would be grouped according to the communities to which they belong. I do not think that in preparing the ward lists there was a material deviation from those sub-sections. Even if the ward lists are not literally prepared in accordance with the provisions of Section 19, Sub-sections (3) and (4), substantially they are so prepared, and it has not been alleged that any injustice has resulted to any one on that account. The applicant himself says that the ward lists are not "strictly prepared" according to the provisions of the sub-sections. It is nowhere specifically alleged that they are illegal. In another place in the petition the words used are that the arrangement is "singularly at variance with that prescribed under the mandatory provisions of the sub-sections. " Even assuming that the ward lists have not been strictly prepared according to those sub-sections, the applicant must still satisfy the Court, before invoking its extraordinary jurisdiction, that the ward lists and the electoral roll based upon them would have injured his franchise or personal right. A man's franchise is his right to vote at an election and the qualifications upon which that right is based. How was the applicant who has the qualifications of a voter, and is in fact enrolled as such in his own ward, injured from exercising his right to vote? He was not prevented from voting if he had chosen to do so, even though his name was placed among Hindus, and was not placed strictly according to the alphabetical order among the voters, irrespective of their communities. The only explanation I could get was that there was no electoral roll as contemplated by the letter of the provisions of Section 19 (3) and (4), that a properly prepared roll being the basis of a proper election there was no basis for the election at all, and that, therefore, the applicant could not exercise his right to vote. Every voter, it was argued, has a right to vote and to see that others vote according to a properly prepared electoral roll, and such a roll not being there, the applicant's right was injured. It is somewhat difficult to understand this argument. To use counsel's words, "there was an irregularity going to the root of the matter. " If there is any irregularity at all, the matter is one which could be settled between the Corporation and the Municipal Commissioner ; but with that I am not concerned. I do not see how the roll as prepared injured the applicant in exercising his franchise in the manner indicated by him in para. 15, viz. that it prevented him from taking any part whatsoever either by way of signing any nomination paper of any candidate as proposer or seconder or by voting or otherwise. I have already said that there was nothing to prevent him from voting. There was nothing also to prevent him from signing the nomination paper of a candidate as proposer or seconder, if at all he had entertained the intention to do so. There is really no act or omission pointed out to me which can be said to have really interfered with his franchise. I, therefore, hold that his franchise has not been injured within the meaning of the first proviso to Section 45.