AMULYA RATAN KARMAKAR Vs. COMMISSIONER OF BASIRHAT MUNICIPALITY

JUDGEMENT

(1.) The petitioners are rate-payers of the Basirhat Municipality. The petitioner No. 2 is a sitting Commissioner and has also stood as a candidate for election as Commissioner of the said municipality at the next general election. The respondent No. 1 are the Commissioners of the Basirhat Municipality. The respondents Nos. 2 to 4 are members of the committee appointed under Section 21, of the Bengal Municipal Act, 1932 called the 'Registering authority.' Section 21 of the said Act lays down that a committee consisting of the chairman and two Commissioners to be appointed by the Commissioners at a meeting for this purpose, shall prepare and publish at the time and in the manner prescribed, an Electoral Roll showing the names of persons qualified to vote. Every person whose name appears in the final Electoral Roll published under this section, so long as such Roll remains in force, is entitled to vote at an election and no person whose name does not appear in such Roll can vote at an election. It is provided that when a Municipality has been divided into wards the Electoral Roll shall be divided into separate lists for each ward. The Electoral Roll as published remains in force till the publication of a fresh Electoral Roll. Finally, it is provided that the preliminary and final Electoral Rolls shall be printed and be made available for purchase by any inhabitant of a Municipality, at a reasonable price to be fixed by the Commissioners at a meeting. The word "prescribed" means as prescribed by rules framed under the Act. Section 44 of the Act gives power to the State Government to make rules for the purpose of election of commissioners, and to regulate and determine the preparation, publication and revision of the Electoral Roll. Rules have been framed by Government in exercise of the powers given by Section 44 of the Act; The election rules provide that the registering authority shall prepare in form A appended to the rules, a preliminary Electoral Roll for the Municipality containing the names of all persons qualified to vote under the said Act and after causing it to be printed shall, not less than 150 days before the day fixed for general election under Section 24 of the said Act, publish it. Under Rule 8 of the election rules, any person who objects to a name entered therein, or who claims that a name has been omitted, can make an application before the registering authority for rectification of the preliminary Electoral Roll. After these objections are dealt with, the final Electoral Roll is published. Under Section 529A of the said Act, any person aggrieved by any entry in or omission from, the final Electoral Roll published under Section 21 may, within 15 days from the date of publication of such roll, appeal to the District Magistrate, and if the District Magistrate on such appeal directs any modification or addition to be made in such Roll, the Roll shall be amended accordingly and the amendment so made shall be published in the same manner as the final Roll. I have already stated above that under Section 21 of the Act, the Electoral Roll shall be prepared and published "in the manner prescribed". I have also mentioned above that by the election rules the manner has been prescribed namely, that it must be in form A appended to the rules. A copy of form A is annexed to the petition and marked with letter "A". In the said form there are 9 columns, and the registering authority has to prepare the preliminary and final Electoral Roll by filling or causing to be filled, the said 9 columns. These columns are headed as Follows : <FRM>JUDGEMENT_548_AIR(CAL)_1959Html1.htm</FRM>

(2.) In or about 25-6-1958, the Registering authority in this particular Municipality, published a preliminary Electoral Roll of the said Municipality. Objection was immediately made to the form in which the preliminary Electoral Roll as a whole had been prepared. It was pointed out that the preliminary Electoral Roll was not prepared in accordance with form A. The age of the voters had not been given. In many cases columns regarding the father's husband's names had not been filled, or filled up with the remark "not known". It was also pointed out that throughout the roll, the addresses of the voters were not given. No notice was taken of such objection and the final Electoral Roll was published on or about 23-8-1958. The registering authority prepared the final Electoral Roll in the same manner, with the same defects as the preliminary Electoral Roll. Against the final Electoral Roll also objection was taken, but with no effect. The petitioners have now made an application to this Court stating that the preliminary and final Electoral Rolls that have been published are not in accordance with law and therefore, the ensuing general election should not be allowed to proceed without a proper Electoral Roll being prepared and published in accordance with law. I might mention here that the next General election is scheduled to be held on the 29th March next. The respondents have not filed any affidavit, but Mr. Chakraborty appearing on their behalf has stated that the Electoral Rolls were there and it was for the Court to judge the validity of the same by looking at them, and that the filing of affidavits would not improve matters. It was agreed between the parties on 17-3-1959 that the application would proceed upon a consideration of the certified copies of the final Electoral Rolls which have been produced. The first thing to be determined is as to whether in view of Rule 8 of the election rules, and Section 529A of the Act, this application is maintainable. As I have mentioned above, Rule 8 of the election rules enables a party interested to challenge the entry of a name in the preliminary Electoral Roll, or any omission therefrom Similarly, Section 529A of the Act enables any person aggrieved by an entry in or omission from the final Electoral Roll to appeal to the District Magistrate for modification of the same. The principle is well-established that the right of franchise created by an Act is governed by the provisions of the Act, and if the Act creating the franchise provides a remedy, then that remedy must be followed, at least in the first instance, before invoking the jurisdiction of this Court. Therefore, if the complaint that has been made in this application could have been the subject matter of an application under Rule 8 of the election rules or Section 529A of the Act, then this application would fail. In my opinion however, neither Rule 8 nor Section 529A is appropriate for this purpose, and cannot provide a complete remedy for the complaint that has now been made. The petitioners are not objecting to the Electoral Rolls on the ground that their own names have not been included therein or that any particular name included therein should be expunged. The grievance is regarding the manner in which these Electoral Rolls have been framed. In other words, the objection -is to the Electoral Roll as a whole and not to any particular entry therein. It is alleged that the so-called Final Electoral Roll is not an Electoral Roll at all. In my opinion, such a matter does not come within the scope of either Rule 8 of the election rules or Section 529A of the Act. Since the Registering authority is bound to prepare the Electoral Roll in accordance with the provisions of the Act and the rules, an application lies, if there is any violation thereof, to compel the Registering authority to act according to law.

(3.) Before I proceed to consider the next objection, namely as to whether these provisions are mandatory or directory, I will have to deal with the nature of the defects that are patent in the Electoral Rolls that have been prepared. Before me, certified copies of the final Electoral Rolls have been produced. It is not disputed that the preliminary Electoral Roll had also been prepared in the same manner. I direct that the copies produced should be marked as Exhibit 1 in this case and placed in the record. Coming to the Final Electoral Rolls, it is found that with regard to column 1, the serial numbers have been correctly set out. There is no complaint about this. The second column is also correctly entered, because against each name, the number in the assessment list has been mentioned. The third column, namely the name of the voters has been correctly filled up. When I say this, it must be remembered that in this application we are not concerned with the correctness of any particular name being entered or excluded from the list. Such a complaint would be within the scope of Rule 8 of the election rules or Section 529A of the Act. Coming now to the 4th column, we find that in some cases the father's name and in the case of females, the husband's name has been given. In numerous cases however, the word "not known" is entered, and in number of other cases, for example, in serial Nos. 15, 41, 245, 485, 495, 513, 514 530,531, 578, 579 of Ward No. 8, this column is left absolutely blank. Coming to the 5th column, it is found that the correct age of no person in the list is mentioned. Instead, all of them have been declared to be "more than 21 years of age". Coming to the 6th column, which requires the period of residence to be mentioned, no particular period is mentioned with regard to any entry, but there is a general entry against all the names to the effect that the persons whose names have been entered have been residing within the jurisdiction of the Municipality for a period of more than 1 year. Against the 7th column there is no particular address given excepting a general entry in respect of each ward. For example, in ward No. 4 the address of all the persons has been declared to be "Basirhat". Similarly in ward No. 5 all the residents have the same address namely "Basirhat" So far as column 8 is concerned, it is stated that the voter pays rates or has an educational qualification, Column 9 has been left entirely blank.