NAWAB SABBIR AHMAD Vs. DISTRICT MAGISTRATE OF DARBHANGA

JUDGEMENT

(1.) In this case the petitioners, three in number, adult citizens of Darbhanga and also enrolled voters, excepting petitioner No. 1, have moved this Court for granting a writ in the nature of mandamus commanding the opposite party, namely, the District Magistrate of Darbhanga, and Sri R.B. Singh, Returning Officer for Darbhanga Municipal Election, to prepare an electoral roll for the Darbhanga Municipality in accordance with law and for an appropriate order directing them to forbear from holding the election of the commissioners of the Darbhanga Municipality until the preparation of such electoral roll. The election of the commissioners of the Darbhanga Municipality is long overdue, and it is most unfortunate that it has not taken place for some reason or other. The circumstances culminating in this application may be briefly stated.

(2.) There was an election on 6th and 7th September, 1956, but the legality of this election was challenged by a writ petition under Article 226 of the Constitution, and by its order dated 10-5-1957, the High Court set aside the said election as invalid on the ground that the mandatory provisions of Rule 7 of the Bihar Municipal Election and Election Petitions Rules, 1953 (hereinafter referred to as the Election Rules), had not been complied with and issued a direction to the District Magistrate, Darbhanga, to hold an election in accordance with law (vide Parmeshwar Mahaseth v. State of Bihar, 1957 BLJR 672 : (AIR 1958 Pat 149). Notwithstanding this direction, no step was taken to hold the election until 28-3-1958, and some of the citizens of Darbhanga filed an application (Miscellaneous Judicial Case 248 of 1958) to haul up the District Magistrate of Darbhanga (opposite party No. 1) for contempt of Court. This proceeding in contempt appears to have produced a salutary effect and spurred the authorities to action. By a notification dated 26-5-1958, published in the Bihar Gazette of date 11-6-1958, under Rule 4 of Election Rules, the Governor of Bihar was pleased to direct the preparation of electoral roll according to the programme laid down therein. This notification is to the following effect : <FRM>JUDGEMENT_409_AIR(PAT)_1959Html1.htm</FRM> Pursuant to the said notification, the draft electoral roll was published on 25-6-1958. The petitioners allege that this draft electoral roll contained a large number of mistakes and was further vitiated by various irregularities. The Municipal Board of Darbhanga Municipality brought these mistakes and irregularities to the notice of the authorities by a resolution dated 14-7-1958 and further recommended reconstitution of the wards under Section 18 (2) of the Bihar and Orissa Municipal Act (vide Annexure B). Petitioner No. 1 was one of those whose names did not find place in the draft electoral roll, and lie filed petition for inclusion of his name. Petitioner No. 3 filed no less than 299 petitions on 15-7-1958, objecting to the inclusion of the names of an equal number of persons in the draft electoral coll for ward No. 15. A large number of residents of ward No. 2 also filed similar claims and objections. 24-7-1958, was fixed for the hearing of the objections and claims, and a written notice thereof was given to each objector and claimant. Petitioner No. 1 appeared at 11.30 a.m. and petitioner No. 3 at 11.15 a.m on that date with their witnesses and documents in support of their respective claims and objections before the Election Officer, but they were told that their objections and claims had been dismissed in their absence before 11 a.m. Thereupon, they filed applications before the Election Officer for reconsideration of their claims (vide Annexures E, E1 and E2). but they were rejected. The list was finally published on 4-8-1958. On 14-8-1958, opposite party No. 1 issued a notice under Rule 7(1) of the Election Rules, and this notice was published in the Bihar Gazette dated 20-8-1958. On 8-9-1958, opposite party No. 2 issued a notice, for election of Commissioners (vide Annexure G.) Thereupon, the petitioners filed the present application. Their case is that the ex parte rejection of their claims and objections was wholly illegal and without jurisdiction as they had not been afforded adequate opportunity of being heard, that the notices that were issued for the disposal of the claims and objections on 24-7-1958, were too vague and indefinite in that the time at which and the place where they will be heard were not mentioned therein (vide Annexure D), that the recommendations of the municipal Commissioners under Section 18(2) of the Bihar and Orissa Municipal Act for reconstitution of the wards had not been disposed of by the State Government and until their disposal no final electoral roll could have been prepared, that any election on the basis of such irregular, defective and imperfect electoral roll will be illegal and ultra vires and that consequently, the election should be staved and proper electoral roll should be directed to be prepared.

(3.) The opposite parties have shown cause. They traverse all the allegations of the petitioners. They deny that the draft electoral roll was irregularly and improperly prepared. They deny further emphatically that the claims and objections of the petitioners were disposed of before 11 a.m. before then- arrival. There is a sharp conflict between the respective versions of the petitioners and the opposite party. The case of the latter in a nutshell is that 32 separate draft electoral rolls for 32 wards of the Darbhanga Municipality were prepared and claims and objections were invited from all the wards and were disposed of after hearing those who wexe present. The defects pointed out by the Darbhanga Municipal Board in their resolution dated 14-7-1958, were considered along with other claims and objections and the defects were rectified. The State Government considered the resolution of the Darbhanga Municipal Board dated 11-6-1957, and 14-7-1958. regarding the reconstitution and re-distribution of wards, and by their letters No. 3568 L.S.G. dated 29-4-1958, and D.O. No. 9008 L.S.G. dated 25-9-1958, informed the District Magistrate that the question of re-distribution of wards should not be taken up and directed him to hold the election on the basis of the existing wards. Respondent No. 2 commenced the hearing or the claims and objections of wards Nos. 13, 14, 15 and 16 serially at 11 a.m. on 24-7-1958, and after disposing of the claims and objections relating, to wards Nos. 13 and 14 he took up ward No. 15. Nurul Hassan and several others against whom the petitioners have preferred objections were present with their witnesses and evidence in support of their claims, and though the petitioners were present in Court from before 11 a.m. they did not appear before the Election Officer at the time of the hearing of the objections, and, therefore, those objections were heard and disposed of in their absence. After the hearing was over and the other, persons had left the Court petitioners Nos. 1 and 3 made over certain petitions to the Bench Clerk at 3 p.m. and left the Court. Those petitions wore put up on that very day before the Election Officer and were rejected. Their petitions dated 30-7-1958, filed in the Election Office and wrongly alleged to have been presented to the District Magistrate, were also considered by the Election Officer and were rejected as meritless. From all the 32 wards 3962 claims and 3460 objections had been filed, and out of them 2773 claims and 2438 objections were allowed after due consideration on merits during Court houxs. In short, their case is that all objections and claims were heard and disposed of according to law, and the electoral roll was prepared with due formality of law.