MUNICIPAL BOROUGH Vs. MAHOMED ISAK ABDUL KARIM

JUDGEMENT

(1.) The respondent had filed a suit against the appellant the Municipal Borough of Dhulia, for an in junction restraining it from giving a fresh qualification to certain persons who; according to him, had been disqualified by an order passed by the District Judge under Rule 10, Sub-rule (5), of the Municipal Election rules. On 21st July 1930, the electoral roll of the Municipality was published under Rule 6 for the purposes of the triennial elections which were to take place on 19 October 1930. On 6 August 1930, a reference was made by the Chief Officer to the Municipality under Sub-rule (3) of Rule 10 pointing out that 936 persons whose names appeared on the list of voters were disqualified under Sub-section (2) of Section 11 of the Act. The Municipality rejected the reference and the respondent preferred an appeal to the District Judge against the decision of the Municipality under Rule 11, Sub-rule (5) of the Municipal Election Rules. On 30 September 1930, the District Judge allowed the appeal holding that those persons who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in Sub-section (2) of Section 11 were not entitled to have their names retained on the list of voters. After this decision the Municipality made an application to the District Judge on 7 November 1930, in which it pointed out that the order passed by the District Judge in the appeal directing the Municipality to omit the names of those who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in Sub-section (2) of Section 11, had been construed by some as disqualifying the voters who were quali fied to vote under Sub-section (l) of Section 11, Bombay Municipal Boroughs Act. As there was some doubt and confusion on the subject it asked for directions of the Court in the matter. The District Judge held that there was no ambiguity in the language of the judgment and declined to give any further directions. After this order the Municipality on 15 November 1930, passed a resolution by which it retained on the electoral roll the names of some persons whose omission had been ordered by the District Judge, on the ground that these persons were entitled to be on the roll because of their being qualified to vote under Section 11 (l) of the Act.

(2.) It was contended by the Municipality in the trial Court that it was competent to it to retain on the electoral roll the names of some of the persons who were held to be disqualified by the District Judge, by reason of the fact that they were voters for the election of members to the Bombay Legislative Council, and that the plaintiff's suit was bad for want of notice under Section 206, Bombay Municipal Boroughs Act. The trial Court held that notice was not necessary and that the act of the Municipality was illegal. On appeal the District Judge confirmed the decree of the lower Court holding that it was not competent to the Municipality to retain on the electoral roll the names of some of the persons who were held by the District Judge to be dis qualified, and that no notice was necessary under Section 206 of the Act. Against this decision the Municipal Borough of Dhulia has filed this second appeal. With regard to the question whether it was competent to the defendant Municipality to retain on the electoral roll the names of some of the persons who were held by the District Judge to have been disqualified, I am of opinion that the view taken by both the lower Courts is correct. The roll which was first published by the Municipality on 21 July 1930, contained the names of persons qualified to vote under Section 11, Sub- Secs.(1) and (2) of the Act. In this roll 936 persons who were shown as qualified to be voters under Section 11, Sub-section (2) were reported to the Municipality by the Chief Officer as having been wrongly so entered.

(3.) It appears that some of these persons were also qualified to vote under Sub- section (l) of Section 11, but this qualification had by mistake not been shown against their names in the roll already published. It was open to these persons to have this omission rectified under Rule 10, Sub-rule (1). It was also open to the Returning Officer, who in this case was the Chief Officer of the Municipality, to bring the error to the notice of the Municipality. Neither of these things was done. The Chief Officer only brought to the notice of the Municipality the fact that these 936 persons had been shown as qualified under Rule 11, Sub-rule (2), when they were not. His reference was rejected by the Municipality and the plaintiff thereupon preferred an appeal to the District Judge from the decision of the Municipality. In appeal the District Judge directed that the names of those out of these 936 persons who had not paid all arrears of qualifying taxes within three months next preceding the date mentioned in Sub-section (2) of Section 11, should be omitted from the roll. After this order the Municipality, instead of omitting from the roll the names of all the persons who were held by the District Judge to have been disqualified, retained on the roll the names of some of them who, though disqualified under Section 11, Sub-section (2), were qualified under Section 11, Sub-section (1). It seems to me clear from the rules that the Municipality had no power to make any alterations in the rolls already published, except such as had been made by it on a reference by the Returning Officer under Rule 10, Sub-rule (4), or such as had been ordered by the District Judge on appeal under Sub-rule (6) Rule 10. Rule 11 provides that when the list of voters has been prepared and, where necessary, revised as provided, in accordance with any order passed in that behalf by the Municipality or by the Judge in appeal, a copy thereof signed by the Returning Officer shall be the Municipal Election Roll. The wording of this rule clearly implies that once a roll has been published under Rule 6 the only alterations which can be made in it are those which are made under Sub-ruler. (4) and (6), Rule 10. It is not open to the Municipality to make any alterations not falling under these two Sub-rules of Rule 10, even though errors in the roll may afterwards be detected.