TULSIRAM AGARWALL Vs. REGISTERING AUTHORITY, SILIGURI MUNICIPALITY

JUDGEMENT

(1.) This Rule is directed against the election held on February 26, 1964, of the Commissioners of the Siliguri Municipality, on the basis of a final electoral roll prepared in pursuance of the decision contained in the order of the Registering Authority dated October 21, 1960, which is at annex. G -2 of the petition.

(2.) The Petitioners, who were originally five in number, brought this petition under Order 1, Rule 8 of the Code of Civil Procedure alleging that 240 other persons were affected by the impugned proceedings and in similar circumstances. Subsequently, some of these persons have come upon the record as added Petitioners so that the number of Petitioners at the hearing has gone up to 24. The Petitioners' case is that they are all residents of Ward No. 17 of the Municipality - -in the area called Milanpalli - -and are thus entitled to be enrolled in the electoral roll of that Ward. In fact, their names were duly included in the preliminary electoral roll which was published sometime in September, 1963, under the West Bengal Commissioners of Municipalities (First General Election) Order, 1963. But the Petitioners' names were excluded from the final electoral roll published on November 12, 1963. This led the Petitioners to inquiry and the Petitioner No. 1 filed a petition to the Registering Authority, namely, the Sub -divisional Officer (Respondent No. 1), for copies of the proceedings which was refused on February 4, 1964, on the ground that certified copies were not available from his office, as the matter related to Municipal election. But, subsequently, the copies were supplied to the Petitioner and from this document it was discovered by the Petitioner that one Binoy Kr. Mukherjee (Respondent No. 4) filed an objection on October 3, 1963, against the inclusion of 222 names in the preliminary electoral roll, on the ground that these persons did not reside anywhere within the area of Ward No. 17, and that in pursuance of this objection Respondent No. 2 (K.B. Bhattacharya) issued notices on October 11, 1963, to the Petitioners to appear before him on October 18, 1963, for a hearing of the objection raised by Respondent No. 4, who was a sitting Commissioner of the Ward and a candidate for the ensuing Municipal election. From the copies it also appeared to the Petitioners that the notices issued by the Registering. Authority were directed not to their respective residences at Milanpalli but to different other places like Khalpara, Gatiganagar and the like where the Petitioners did not actually reside. In the circumstances, the letters which were purported to have been sent under certificate of posting were not received by the Petitioners. The Petitioners' case is that they were always and have been residing at Milanpalli within Ward No. 17 and that some of them own immovable property situated at that place, and that the sending of the notices addressed to the Petitioners at wrong addresses was done by the Municipal Authorities to serve the interest of Respondent No. 4. As a result of non -service of these letters the Petitioners could not appear before Respondent No. 2, K.B. Bhattacharya, an officer subordinate to the Registering Authority, on October 18, as directed in the notices. In view of their absence, Respondent No. 2 made the report (at annex. G) in the following words:

(3.) The Petitioners' case is that, in pursuance of the above order of the Registering Authority, their names were deleted from the final electoral roll without giving them an opportunity of being heard either before Respondent No. 2 or Respondent No. 1, and that the order passed by the Registering Authority and the election held in pursuance thereof are ultra vires and illegal on various grounds, which will be stated hereafter. Separate affidavits -in -opposition have been - filed by Respondent No. 1 for himself and Respondent No. 2; Respondent No. 4, i.e., the objector, Respondent No. 5, the Chairman of the Municipality; and the State of West Bengal, Respondent No. 6. The averments made in these counter -affidavits will be referred to at proper places.