BIMAL CHAND BOTHRA Vs. CHAIRMAN JIAGANJ AZIMGANJ MUNICIPALITY

JUDGEMENT

(1.) This is an appeal against an order of Sinha, J., dated 14-12-1953, by which the learned Judge discharged a Rule obtained by the appellant under Article 226 of the Constitution of India. The judgment of the learned Judge covers a fairly large variety of points, but Mr. Sen Gupta, who has appeared before us on behalf of the appellant, elected to press only one of them.

(2.) In view of the ground upon which we propose to dispose of the appeal, it is not necessary to set out the facts at any great length. Suffice it to say that on 8-7-1952, a preliminary electoral roll in respect of the Jiaganj-Azimganj Municipality was published by file relevant registering authority under Section 21, Bengal Municipal Act. The final electoral roll was thereafter published on the 6th September following. It appears that on 20-9-1952, one Kamalakanta Bhattacnarjee preferred an appeal before the District Magistrate under Section 529A, Bengal Municipal Act, whereby he prayed for the exclusion of the names of as many as 172 persons from the final electoral roll. That appeal was Appeal No, M-11 of Z952. Five more appeals are said to have been preferred in respect or the same final electoral roll by which the inclusion of other persons was objected to- The appeal of Kamalakanta Bhattacharjee was disposed of by the District Magistrate on 18-10-1952, and he allowed the appeal. According to the District Magistrate's order, therefore, the names of 172 persons, objected to by Kamalakanta Bhattacharjee, became liable to be excluded from the final electoral roll. The order of the District Magistrate was received by the Chairman of the Municipality on 24-10-1952. There were some allegations to the effect that the delivery of the District Magistrate's order was delayed by the adoption of certain dis honest manoeuvres, but to those allegations it is not necessary to refer. The Chairman, it is alleged, disregarded the order of the District Magistrate passed in Kamala- kanta Bhattacharjee's appeal, although he gave effect to the orders passed in the five other appeals and caused only the amendments directed in the latter to be published. It is alleged that when requested to give effect to the exclusions ordered by the District Magistrate in Kamalakanta Bhattacharjee's appeal, the Chairman declined to do so. on the ground that the District Magistrate had no jurisdiction to pass the order he had made after the expiry of the statutory period within which only he was entitled to make orders of that kind. Thereafter, it was announced that the general election would take place on 18-1-1953, but the date was shifted from time to time till it was pushed forward to 28-3-1953. On 25-2-1953, the appellant, who was one of the candidates for election as a Commissioner, made a final demand of the Chairman for the exclusion of the 172 names, but that demand being refused, he moved this Court on 27-2-1953, and obtained a Rule. On 28-3-1953, the election was duly held, but by an order made earlier on 24-3-1953, Sinha J., restrained the publication of the results till the disposal of the Rule. On 14-12-1953, the Rule was disposed of and discharged. We understand that thereafter the results have been published elections held and the Commissioners elected have duly assumed office.

(3.) One of the several grounds upon which Sinha J., discharged the Rule was that no effective order could be made in the absence of the registering authority, who had not been made parties to the Rule. The learned Judge held that the prayer of the appellant being that some one should be commanded to exclude from the final electoral roll the 172 names in terms of the order of the District Magistrate, such a command could issue only to persons who were in a position to carry it out. In the learned Judge's view, the authority contemplated by the Act and the Rules, whose function it was to carry out amendments directed in an appeal under Section 529A, Bengal Municipal Act, was the registering authority which is the same as the Committee referred to in Section 21 of the Act. The appellant had not impleaded the registering authority as such, but had impleaded only the Chairman, who was one of the members of the Committee known as the registering authority, but not also the two remaining members. The learned Judge pointed out that were he to make the Rule absolute and give the directions asked for by the appellant, he would be passing an ineffectual order and consigning the Chairman to an impossible position, because the latter would. be directed to amend and republish the final electoral roll which he could not possibly do, acting alone and without the co-operation of the other two members, who would not be bound by the learned Judge's order.