BISHNU CHARAN MUKHERJEE Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two applns. arise out of municipal elections contemplated to be held on the 20th instant in this State, in Cut-lack and Kendrapara respectively in accordance with the recent Orissa Municipal Act, 1950, (Orissa Act XXIII of 1950) which will hereafter be referred to as the Municipal Act in this judgment. The petitioner in each of the cases is a candidate for election to the respective Municipal Councils and they are both legal practitioners. The petitioner in M. J. C. 49/51 filed his application on 12-3-1951 praying for directions to the State Government, the District Magistrate and the Election Officer, Cuttack Municipality, not to hold the election on various grounds set out by him in his application. In substance the grounds state that the Municipal Act contains various illegal provisions in particular, a provision disqualifying a legal practitioner who has at the time, an engagement against the Municipality and that the Act is accordingly ultra vires and that no election can be held thereunder. He states that he would be disqualified from standing as a candidate on account of his being at the time engaged by the Cuttack Municipality in Cri. Mics. Case 1 of 1950, in the Court of Additional District Magistrate, Cuttack. He appears however to have since filed his nomination and the same is said to have been accepted by the Election Officer after scrutiny on the due date. The petitioner in M. J. C. 60 of 1951, filed his nomination for election to the Kendrapara Municipality and the same was rejected by the Election Officer by his order dated 25-3-1951 on the ground that he is employed as a legal practitioner against the Municipality in a pending case, under Section 198 of the Bihar Orissa Municipal Act, and that he is therefore not qualified. He has accordingly filed his application on 4-4-1951 in this Court i'or the issue of directions prohibiting the State Government and the Elections Oilicer from holding the election to Kendrapara Municipality. This petition also raised various grounds, but the substantial question raised is about the validity of the rejection of his nomination on the ground stated.

(2.) It is necessary to state a few further undisputed facts which have preceded these applications. The Municipalities in Orissa State have been since its formation in 1936, functioning upto date under the different Acts. The Madras portion of Orissa is governed by the Madras District Municipalities Act of 1921 and the rest of Orissa is governed by the Bihar and Orissa Municipal Act, 1922. There have been attempts since about the year 1937-38 to co-ordinate those Acts and to bring into operation one uniform Municipal Code lor the State. The Orissa legislature has accordingly passed recently the Orissa Municipal Act of 1950 (Orissa Act XXIII of 1950) which received the assent of the Governor on the 7th of November, 1950, and was published in the Orissa Gazette on 11th November, 1950. Under Section 1 (3) thereof, the Act is to come into force in such area or areas on such date or dates as the State Government may appoint from time to time. It is common ground that the Act has not yet been brought into force by any notification in any area of the State. But it has been stated to us by the learned Advocate-General on behalf of the State that it has been decided 1o bring the Act into force by a notification on the 16th of this month. Copies of certain proceedings and notifications and rules have been filed before us at the hearing on behalf of the Government. They show that the following steps have been taken in anticipation of the bringing into force of the Act. From letter No. 13361-L. S. G. from the Secretary to Government, Local self Government Department, dated llth November, 1950, to all the District Magistrates of the State, it would appear that the Government have decided that general elections should be held on the basis of adult suffrage as provided in the 1950 Municipal Act in the 12 following Municipalities, Cuttack, Puri, Balasore, Sambalpur, Kendrapara, Jajpur. Berhampur, Parlakimedi, Baripada, Bolangir, Bhawanipatna, Talchor. On 13-12-1950 the government issued notification No. 2015-L.S.G. under Section 13 read with Section 1 (5) of the Municipal Act fixing the 1st day of March, 1950, as the relevant date for voters in the election as regards their residenial qualification in the municipality. On 4- 1-1951, the Government under notification No. G5-L.S.G., published rules made in exercise of powers conferred by Clauses 1 and 2 of Sub-section (2) of Section 387 of the Municipal Act called the "Municipal Election Rules, 1950". By notification No. 167-L.S.G., dated 10th January 1951, made in exercise of powers conferred by Sub-section (2) of Section 12 of the said Act read with Section 1 (5), there was a redistribution of the wards for the Cuttack Municipality. There were presumably simitar notifications for other municipalities where considered necessary though they have not been filed before us. By notification No. Section 519, 521, L.S.G., dated 24-1-1951 issued under Sections 8 and 11 of the Municipal Act read with Section 12 (3) and Section 1 (5) of the Municipal Act, the number of councillors and the number of reserved seats for each municipality were fixed. Copy of the proceedings of the conference of the executives of the municipalities in the State held on 23rd November, 1950, filed before us, shows that in four out of the eight municipalities in the old Districts of the State, the normally constituted Municipal Councils were not functioning and that they were Governmentcontrolled through executive officers, that in the other four the terms of the old Municipal councils were being extended from time to time pending enactment of a uniform Orissa Municipal Code, and that so far as the Municipal bodies in the integrated States areas are concerned, they were recently declared Municipalities under the pre-existing Bihar and Orissa Act. These proceedings also state that the Government was anxious that as quickly as possible all the Municipalities above stated should pass over into popular hands by means of general elections on the basis of adult suffrage under the Municipal Act recently passed and that the said elections should be held without delay. The said proceedings also fixed up a timetable for the various steps in the election and fixed the date for nomination proposals on 15-3-1951 and the polling date as 20-4-1951 and the election of the Chairman and the Vice-Chairman as 30-4- 1951.

(3.) The objections raised in both these applications, though not identical, may be clubbed together and may be classified and dealt with under two heads: (1) General and (2) Individual. The objections of a general nature are (a) The Act itself not having been brought into force, the various steps so far taken by way of issue of notifications, framing of rules, fixing of dates, appointment of elections officers, preparation of electoral rolls, scrutiny of, and acceptance and rejection of nomination papers are all of them void and no elections can be held on the basis of these void preliminaries, even if the Act itself should be brought into force prior to the actual date of polling, (b) Various provisions in the Act relating to the disqualifications of voters or the disqualifications of candidates, are repugnant to the fundamental rights guaranteed by the Constitution or the adult suffrage provided by the Act itself and accordingly the said disqualifications are illegal. An election based on such disqualifications is therefore void.