BISHWANATH PRASAD Vs. RAMJI PRASAD SINHA

JUDGEMENT

(1.) This application by seventeen persons - under Articles 226 and 227 of the Constitution of India is for a declaration that the election of the Municipal Commissioners of the Sitamarhi Municipality held on 12-6-1960 was void. The facts leading to this application are these. On 20-2-1959 the District Magistrate of Muzaffarpur called upon all the words of the Sitaniarhi Municipality to elect Commissioners on or before 15-7-1959. No step was taken for holding the election before that date and hence it was adjourned to 31-5-1960 by another notification dated 4-2-1960 issued by the same officer. The District Magistrate appointed the Sub-divisional Magistrate of Sitamarhi (respondent 27) as a returning officer by notification dated 8-3-1960 and the latter fixed 27-4-1960 as the last date for filing of the nomination paper, 28-4-1960 for scrutiny, 1-5-1960 for withdrawal and 29-5-1960 for the poll relating to the election of the Commissioners of the Sitamarhi Municipality. The date for polling was, however, postponed to 12-6-1960 and this alteration, it is alleged, was illegal for want of a proper notification. The result of the polling on 12-6-1960 was that respondents 1 to 24 were declared elected as Commissioners of the Sitamarhi Municipality. The petitioners further alleged that the electoral roll for the election of the said Commissioners was finally published on 9-5-1960 and that being so, the notification calling upon the constituency to elect Commissioners even before the final publication of the electoral roll was entirely illegal. In that state of affairs, they challenged the election of respondents 1 to 24. Their further grievance was that petitioners 15, 16 and 17 were voters at the time when the constituency was called upon to elect but their names were deleted from the electoral roll which was finally published. Petitioners 7 and 12 also made a grievance that as the electoral roll was not finally published, they could not be candidates. It appears that out of these 17 petitioners, petitioners 1 to 6, 8 to is and 13 and 14 alleged themselves to be the voters of this Municipality. It was alleged that Rajendra Prasad (respondent 14) was not a voter in the finally published electoral roll and as such his election as Municipal Commissioner from Ward No. 14 was illegal. The District Magistrate, Muzaffarpur, the ex-Sub-divisonal Officer, Sitamarhi and the present Sub-divisional Officer of Sitamarhi were impleaded as respondents 25, 26 and 27 respectively in this petition.

(2.) In answer to the said petition, Gagandeo Singh, an employee of respondent 15, filed a counter-affidavit to the effect that the wards in which the Sitamarhi Municipality was divided for holding Assembly electrons were identical with) the wards for holding Municipal election and that system was continuing since a very long time. The draft electoral roll was duly revised in the year 1959 and on the basis of that electoral roll, electors were called upon to hold election of the Municipal Commissioners of the Sitamarhi Municipality. The revision of the electoral roll in 1960 was in due course for holding all sorts of elections and the said roll was revised in accordance with the prescribed rules. He stated in paragraph 7 of his counter-affidavit that the entire Municipal election was held on the basis of the electoral roll in existence at the time of filing nominations. The Election Supervisor swore a counter-affidavit on behalf of respondents 25 to 27 and he made, out that the electoral roll of the Sitamarhi South, Assembly constituency was taken to be the basis for the Municipal election according to Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, and hence the electoral roll finally published on 30-10-1959, after intensive revision was taken to be the roll for filing nomination papers as according to the election programme, the nomination papers were to be filed from 19-4-1960 to 27-4-1960. He further stated that "in this year again there was an intensive revision of the rolls of the Sitamarhi South Assembly Constituency and the rolls were finally published on 9-5-60 as scheduled which was valid at the time of Poll." Ram Lakhan Sao (petitioner 14) filed a reply to these counter-affidavits and he asserted that the election of the Municipal Commissioners was held on the basis of the electoral roll which was finally published on 9-5-1960 and not on the basis of the one which was in existence on and from 30-10-1959. On the first occasion when this case came up before us for nearing, it was not clear from the counter affidavit of the Election Supervisor as to which electoral foil was adopted for the election of the Municipal Commissioners and in order to make the matter further clear, the learned Government Pleader took some time for filing a supplementary affidavit. The Election Supervisor has filed a further affidavit and, according to him, the electoral roll of the Sitamarhi South Assembly Constituency was prepared after house to house enumeration and it was finally published on 30-10-1959. The said electoral roll, so far as it related to the Municipal areas, was in 24 parts corresponding to the 24 wards of the Municipality and under Rule 4 of the Bihar Municipal Elections and Election Petition Rules, 1953. each part of the said electoral roll was deemed to be the electoral roll for the corresponding ward of the Municipality, He further stated that at the dates of filing of the nomination papers and the scrutiny, the annual revision of the electoral roll was under progress and a list of amendments to the electoral roll was being prepared as required by Rule 25 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Accordingly, the existing roll together with the list of amendments was finally published under Rule 23 of the said rules on 9-5-1960. According to him the electoral roll was not prepared afresh at the time of the annual revision in 1960, and, on the other hand, only a list of amendments was prepared and incorporated in the electoral roll which had been finally published on 30-10-1959. The result was that at the poll which took place on 12-6-1960, the revised roll, published on 9-5-1960 was used. Ram Lakhan Sao (petitioner 14) again filed an affidavit reiterating that the Constituency having been, called upon to elect the Commissioners long before the publication of the electoral roll on 9-5-1960, the election was invalid and illegal.

(3.) The main contention of learned counsel for the petitioners is that the electoral roll finally published on 9-5-1960 was not at all in existence when the various wards were called upon to elect Commissioners of the Sitamarhi Municipality. According to him, the electoral roll published on 30-10-1959 was used for the purposes of filing nomination papers and the scrutiny thereof, but a different electoral roll which was finally published on 9-5-1960 was used for the purposes of poling and recording of votes which took place on 12-6-1960. This procedure, he contended, was entirely unwarranted and unjustified. According to Rule 3 of the Bihar Municipal Elections and Election Petitions Rules, 1953, the qualification for the registration of electors at elections of Municipal Commissioners shall be the same as those for the registration of electors at elections of members to the Bihar Legislative Assembly of the State of Bihar. Rule 4 provides that so much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar for the time being in force, as relates to the local areas comprised within the limits of the Municipality, shall be deemed to be the electoral roll for that municipality for the purpose of elections of municipal commissioners and so much of the said electoral roll or rolls as appertain to a particular ward of the municipality shall be deemed to be the electoral roll of that ward. The position thus is that according to this rule, the electoral roll of an Assembly constituency shall be deemed to be the electoral roll for the Municipality for the purposes of election of Commissioners. The expression "shall be deemed" indicates clearly that the electoral roll for the State Assembly constituency has to be regarded for all practical purposes as the" electoral roll for the Municipality. The substantial purpose of this rule is to avoid the necessity of preparing electoral rolls separately for different Municipalities and to save time and energy which are required in complying with the various formalities relating to the preparation of electoral rolls. There is a proviso to this Rule 4 in these terms: