BIMAL CHAND Vs. CHAIRMAN JIAGUNJ AZIMGUNJ MUNICIPALITY

JUDGEMENT

(1.) This is a Rule issued upon the opposite parties to snow cause why appropriate writs should not be issued for the purpose of excluding 172 names from the Final Electoral Roll of the Jiaganj Azimganj Municipality in terms of the order passed by the District Magistrate, Murshidabad, on 18-10-1952, and why the holding of the election on the basis of the Final Electoral Roll, as published, should not be prohibited and for such further order or orders as to the Court may seem fit and proper.

(2.) The facts of this case are as follows: The petitioner is a resident of Begumganj Mohalla of Baluchar within the Jiaganj Azimganj Municipality in the District of Murshidabad. The opposite party No. 1 is the Chairman of the said Municipality. Under Section 21, Bengal Municipal Act (Act 15 of 1932) a committee consisting of the Chairman and two commissioners are appointed by the commissioners of the Municipality at a meeting held" for this purpose and this committee which is (according to the rules) known as the "registering authority" prepares the Preliminary and Final Electoral Rolls in accordance with the provisions of the Act. In this particular case, the registering authority published the Preliminary Electoral Roll on 8-7-1952, and fixed 22-7-1952, as the date for preferring claims or objections. Certain claims and objections having been preferred, were heard and decided and the Final Electoral Roll was published on 6-9-1952. On 20-9-1952, one Kamala Kanta Bhattacharjee preferred an appeal before the District Magistrate Murshidabad, under Section 529A of the Act. This was numbered MA. 11 of 1952. Five further appeals were filed, numbered MAs. 12 to 16 of 1952. On 26-9-1952, the District Magistrate called for the records and explanation, if any, and fixed the hearing on 9-10-1952. In the appeal filed by Kamala Kanta Bhattacharjee, namely, MA. 11 of 1952, it was urged that the names of 173 persons were wrongly included as they were not members of a joint family within the meaning of Section 23(5) (i) of the Act and that two names were wrongly included inasmuch as they were the owners of holdings in respect of which no municipal rates had been paid in terms of the Act. No notice was given to any of these 173 persons that the hearing had been fixed for 9-10-1952. On 2-10-1952, the District Magistrate called for an explanation from the Chairman of the Municipality, the opposite party No. 1, and directed that the explanation should reach him by 6-10-1952. The memorandum containing this direction was received by the Chairman on 6th October, and he sent a wire asking for the time to be extended till the 8-10-1952. On the 8th he sent an explanation. The Chairman pointed out, amongst other things that these 173 persons had not been served with any notice of the proceedings. It appears that either on 12-10-1952, or on the 14th, the District Magistrate directed notices to be issued on 171 persons to show cause why they should not be excluded from the Electoral Roll and fixed 18-10-1952, for the hearing of the case. Whichever be the date of the order, it is remarkable that the District Magistrate thought that they could be adequately served and that the parties served would be in a position to contest the proceedings within a period of 4 to 6 days.

(3.) It appears from the affidavits before me that with regard to most of the notices they were posted on 15th October and some of them reached the addressees on the 18th of October and some were delivered on the 10th, that is to say, after the hearing. The original covers of a number of letters were produced in Court and it is not denied that they were so delivered, although the learned Advocate for the petitioner commented on the fact as to how these letters came into possession of the petitioner. It appears that on 12-10-1952, the five appeals Nos. MAs. 12 to 16 of 1952 were allowed. As regards the 172 persons who were not served, it appears that at the hearing on 18-10-1952, 23 persons appeared and 15 persons addressed a representation to the District Magistrate, all of them objecting to the exclusion of the 172 names. They stated that the notices had not been served but they had come to know that an appeal had been preferred and so objected to the same. So far as the remaining persons are concerned, namely, 135 persons, it does appear that they had no proper notice that their names were going to be excluded from the Electoral Roll. On 18-10-1952, the District Magistrate passed art order in MA. 11 of 1952 directing 172 names to be excluded from the Final Electoral Roll. So far as the order in MAs. 12 to 16 of 1952 is concerned, it was duly received by the Chairman and the amendment incorporated in the Final Electoral Roll, but with regard to the order dated 18-10-1952, in MA. 11 of 1952, the Chairman states that the order was received by him on 24-10-1952. 22-10-1952 was the date when, according to the Act and the rules, the Final Roll had to be published and was, in fact, published. A great deal of trouble in this application centres round the question as to whether the Chairman did receive this order on or before the 22nd. The order was communicated by registered post. It appears that on 22-10-1952, it was delivered at Jiaganj from the window delivery to a sepoy said to be in the service of the opposite party No. 1 but was returned to the post office on 23rd and reposted to Azimganj where the Municipal Office is situate. It is really difficult to say without further evidence as to whether this was done honestly or as a device to delay the service of the order upon the Chairman. Be that as it may, the Final Electoral Roll was published on 22-10-1952, including the names of these 172 persons. It appears that correspondence passed between the Chairman and the District Magistrate end the Chairman pointed out that there was a statutory period during which the Final Electoral Roll had to be published and there appears to be no provision in the Act or the rules framed thereunder enabling a second amended Final Electoral Roll to be published thereafter.