FANI DATTA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) The Appellant in this case is Fani Datta whose name is borne in the Electoral Roll for the time being in force for election of members to the West Bengal Legislative Assembly from the Assembly Constituency No. 123 Burtolla North which corresponds to the present Calcutta Corporation Constituency No. 11 Section 48 of the Calcutta Municipal Act, 1951 (West Bengal Act XXXIII of 1951), deals with the qualification of electors to the Corporation of Calcutta. It runs as follows:

(2.) It would be observed that there are two qualifications mentioned in Section 48, the first being that the name should be included in the electoral roll of the Legislative Assembly from an area corresponding to the Corporation constituency and the second is that the person concerned must be a resident within that area. Section 52 deals with the preparation of the electoral roll. Sub-section (1) provides that an electoral roll shall be prepared for every constituency. Sub-section (2) empowers the State Government to make rules providing for the preparation of the electoral roll, the mode of making claims and objections to lay down the manner in which such claims and objections should be decided and generally for all matters relating to the publication of electoral rolls. In exercise of powers given under Sub-section (2) of Section 52 the State Government has framed a set of rules known as the Calcutta Municipal Electoral (Preparation and Publication and Revision and Republication of Electoral Rolls) Rules, 1952. Briefly speaking, the rules provide that first of all a preliminary electoral roll shall be prepared of every constituency by the Registering authority appointed for the purpose of preparing electoral rolls. In these preliminary electoral rolls names of all persons will be included who are in the corresponding area of the roll prepared for the Legislative Assembly and who reside within that constituency. Objections are to be called for and such objections when received are to be decided in the manner prescribed by the rules and thereafter a final electoral roll is to be published. This is the electoral roll upon which is based the municipal election.

(3.) So far as the constituency No. 11 is concerned, the preliminary electoral roll was made and published on January 9, 1965. The last date of filing objection was January 30, 1965 and the last date for deciding the objection to the preliminary electoral roll was February 13, 1965. In the preliminary electoral roll of constituency No. 11 the name of the Appellant was included as entry No. 1158 showing him residing at 38A, Nalin Sarkar Street. Objections were filed as to the inclusion of the name of the Appellant as also of his wife and daughter and several other persons and on or about February 10, 1965, the Revising authority made an order deleting entries Nos. 1158 to 1160 along with other entries. A copy of the objection dated January 30, 1965, together with the order of the Revising authority is at p. 25 of the paper book. It shows that the names of the Appellant and others were objected to and were deleted on the ground that they had left the area. The facts with regard to the objection are as follows: The objection was made by one Sukumar Ghosh on January 30, 1965. So far as the Appellant and his family are concerned, the objection was that they had left 38A, Nalin Sarkar Street and had not been residing there for more than 2? years. Mrinal Kanti Banerjee, a temporary assistant of the Election department, was entrusted by the Revising authority to serve notice regarding objection. He was entrusted with the task of serving notice of objection upon the Appellant. He has filed an affidavit affirmed in March, 1965, the copy of which is at pp. 26 to 28 of the paper book. He says that he went to 38A, Nalin Sarkar Street which is the address of the Appellant as given in the preliminary electoral roll and ascertained that he had long ago left the said address. He accordingly served the notice addressed to the Appellant by affixation in the presence of a witness Shri A. Datta who also signed as a witness. It is stated in the endorsement that Sri Datta belonged to the same premises namely, 38A, Nalin Sarkar Street. In fact, we have been informed that he is the owner of the house. Thereafter the Revising authority struck out his name from the preliminary electoral roll. This appears from the order of the Registering authority dated February 10, 1965, a copy of which is at p. 25 of the paper book. The final electoral roll of constituency No. 11 was published on February 20, 1965. The Appellant filed a nomination paper for standing as a candidate for councillorship of the Corporation on February 28, 1965. The Respondent No. 8 filed his nomination paper as a rival candidate. March 5, 1965, was fixed for scrutiny of nomination papers. On March 5, 1965, an objection was filed against the nomination of the Appellant. The ground was that the Appellant's name did not appear in the final electoral roll published on February 20, 1965, but that his name had been struck out. The second objection was that in fact the Appellant did not reside within constituency No. 11 but lived with his family at A-244 Bangur Avenue within the jurisdiction of the South Dum Dum Municipality and that he had falsely given his address in the nomination paper as No. 357-C, Acharya Prafulla Chandra Road, which was a furniture shop and not a residential house at all. Along with the objection the objector filed a certified copy of the final electoral roll which showed that the Appellant's name against serial No. 1158 stood deleted. He also filed a certified copy of the Ration card of the Appellant, a copy of which is at p. 49 of the paper book and annexure 'g' in which the Appellant's wife made the following endorsement on March 4, 1965, relating to the Appellant and various members of his family: