Patna High Court
Nawab Sabbir Ahmad And Ors. vs District Magistrate Of Darbhanga And ... on 16 October, 1958
Equivalent citations: AIR1959PAT409
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
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 :
"The Bihar Gazette, June 11, 1958. Part II The 26th May 1958. Page 1700.
No. M/M1. 1026/57-4437-L.S.G. Whereas the District Magistrate of Darbhanga is of opinion that the electoral roll of the Darbhanga Constituency of the Bihar Legislative Assembly for the time being in force, in so far as it relates to the local areas comprised within the limits of the Darbhanga Municipality is not suitable for the purpose of election of the Commissioners of the said Municipality.
Now, therefore, in pursuance of the proviso to Rule 4 of the Bihar Municipal Election and Election Petitions Rules 1953, the Governor of Bihar is pleased to direct that a fresh electoral roll for the purpose of election of Commissioners of the said Municipality be prepared by the District Magistrate of Darbhanga for each ward of the said Municipality on the basis of qualifications of electors as prescribed in Rule 3 of the said rules and in accordance with the programme laid down below:
Programme
1. Publication of draft roll at the following places :
(1) District Magistrate's office.
(2) Subdivisional Officer's office.
(3) Municipal office.
(4) Each ward -- 25-6-1958 to 15-7-1958.
2. Proclamation regarding publication of roll by beat of drum and in the manner considered fit by the District Magistrate -- 25-6-1958.
3. Filing of claims and objections before the District Magistrate or any person duly authorised by the District Magistrate --25-6-1958 to 15-7-1958.
4. Publication of list of claims and objections 16-7-1958 to 22-7-1958
5. Hearing of claims and objections by the District Magistrate or any other person duly authorised by him -- 23-7-1958 to 25-7-1958.
6. Final publication of electoral roll at the places noted against serial No. 1--4-8-1958 to 11-8-1958.
Note. --Forms for preparation of the electoral rolls, claims, objections etc, shall be the same as prescribed in the Representation of the People Act and rules framed thereunder with necessary modification.
By the order of the Governor of Bihar, D. D. Sen Additional Deputy Secretary."
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.
4. Mr. B.C. Ghose appearing for the petitioners contended that the electoral roll prepared in disregard of the recommendation of the municipality for reconstitution of the wards was irregular and could not form basis of a legal election. If will be observed that by their resolution dated 14-7-1958, the Municipal Board, Darbhansra, recommended for reconstitution of the wards. It will be, however, wrong to say that the Government did not consider this resolution. By their letter dated 25-9-1958. they communicated their decision to the effect that there will be no alteration or revision of the wards and that the election will proceed on the basis of the existing wards.
The submission of Mr. Ghose is that the order of the State Government dated 25-9-1958, was wholly ineffectual, as it was made after the final publication of the list on 4-8-1958. His contention is that this decision should have reached before the final preparation of the electoral roll. He referred to Sub-section (2) of Section 18 of the Bihar and Orissa Municipal Act, 1922. In my opinion, this contention is not well-founded, and the above sub-section, on which he relied strongly, does not support his contention. It runs thus :
"The State Government may after considering the recomendation, if any, of the Commissioners' at a meeting alter and revise the division into wards and the number of Commissioners to be elected for each ward."
The Commissioners are entitled under this subsection to make recommendation for alteration and revision of the wards. It does not, however, oblige the Government to give effect to their recommendation. It simply vests in the Government a discretion to consider their recommendation and to reconstitute the wards, if they deemed it proper. This provision is not mandatory but only directory, and, therefore, non-consideration of the recommendation before the final publication of the electoral roll will not invalidate it. The authority in charge of the election was right in proceeding with the election on the basis of the existing wards, and in absence of any specific direction it could not postpone the election in anticipation of the eventual revision of the wards by the State Government If, however, the Government had accepted the recommendation and had decided to re-distribute the wards, the final publication of the electoral roll must have fallen through ipso facto and fresh electoral roll in consonance with the Government order must have been prepared. If, however, the Government rejected the recommendation, the final publication of the electoral roll is not invalid even if the order was passed and communicated subsequent to its publication. The election authority in this case might have taken the risk, and in order to avoid delay might have proceeded with the election on the basis of the existing wards, and in my opinion, no legitimate objection can be taken to the procedure adopted by it which is sufficiently justified by its subsequent decision rejecting the recommendation of the Municipal Board. This contention, therefore, fails both on fact and in law.
5. Mr. Ghose next put forward the argument that the preparation of the electoral roll was invalid as the list of claims and objections was not published, as provided in the programme of election published with the notification stated above. Item 4 of the programme stated that the publication of list of claims and objections will be done between 16-7-1958, and 22-7-1958. His contention is that there was no publication of the claims and objections. This is stoutly denied by the opposite parties in their show cause petitions.
They maintain that all the claims and objections filed from 25-6-1958 to 15-7-1958, were duly published in the office of the Revising Authority and District Election Officer, and a list thereof was also hung up on the Notice Board on each date. The Revising Authority has given a certificate of due publications which are Annexures VII and VIIA to the show cause petitions. Mr. Ghose did not deny the publications of the claims and objections, as alleged by the opposite parties. His submission is that these publications were not made in accordance with the provisions of law and were, therefore, invalid. He referred to Section 356 of the Bihar and Orissa Municipal Act. This section provides as follows :
"Every by-law, order, notice or other document directed to be published under this Act shall be written in, or translated into the vernacular of the district, and deposited in the office of the Commissioners, and a copy shall be posted up in a conspicuous position at such office, and in such other public places as the Commissioners may direct ;
and a public proclamation shall be made throughout such municipality by beat of drum, notifying that such copy has been so posted up, and that the original is open to inspection in the office of the Commissioners".
It is manifest that this section provides for publication of "by law, order, notice or other document directed to be published under this Act". The publications of the claims and objections were not under this Act, but under the Election Rules. The programme published for holding election provides for publication of these claims and objections, and in absence of any statutory provision as to the method of publication, the Revising Authority had discretion to publish the same in such manner as it thought proper. All that is necessary is that there should be publication of the claims and objections. There is nothing to show that the parties were not aware. In fact, even according to the petitioners, they all appeared on the appointed date for disposal of theiv claims and objections. In my opinion, Section 356 does. not apply to the publication of claims and objections. under the Election Rules. I would, therefore, hold that the claims and objections were duly published and would reject this argument.
6. Next, Mr. Ghose raised the contention that the entire electoral roll was vitiated, inasmuch as the petitioners and several other citizens were not given full and fair opportunity of being heard. In this connection he referred to the following observation of their Lordships of the Supreme Court in Chief Commissioner of Ajmer v. Radhey Shyam Dani, 1957 SCA 135 : ((S) AIR 1957 SC 304) :
"It is of the essence of these elections that proper electoral rolls should be maintained and in order mat a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinise whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned".
7. It is indisputable that an important document like electoral roll on which depends the exercise of civil right of the people should be prepared after due publicity and after thorough examination of the claims and objections of the voters. It is obvious that when the very foundation of the election is imperfect the election cannot stand. Therefore, the preparation of electoral roll postulates that fair and full opportunity was given to the citizens to lay claims for enrolment as voters or to raise objections to the enrolment of other persons as voters. The principle which Mr. Ghose has enunciated is unexceptionable. The question, however, remains whether those principles were departed from in this particular case.
The petitioners maintain that they were not aware of the time and place, and when they reached the Court between 11.15 a.m. and 11.30 a.m. they were told that their petitions had been dismissed before 11 a.m. The opposite parties emphatically deny that the petitioners were denied opportunity of being heard. They assert that they knew both the time and the place and were in fact present when their claims and objections were heard. They further allege that the persons against whose enrolment they had raised objections were in fact present at the time of hearing. Their case is that the petitioners, though present in Court, deliberately failed to appear before the Election Officer to substantiate their case. There is thus a sharp divergence between the petitioners and the opposite parties. The grievance of the petitioners is that the notices with respect to their claims and objections did not mention the time and place. This is no doubt true.
The notices did not mention the time and place of hearing. In this particular case, however, no prejudice accrued to the petitioners. "Notwithstanding the omission of time and place from the notices, the petitioners were admittedly present in Court on the date fixed for hearing. The only question is whether they were present when their claims and objections were disposed of by opposite party No. 2. Their case is that they were disposed of before 11 a.m. in their absence, whereas the opposite parties maintain that their claims and objections were, taken up for hearing long after 11 a.m. and the petitioners were present in Court premises at that time. The important question is whose version is correct.
The materials on the record are too insufficient for a definite conclusion. Mr. Ghose referred to the petitions filed by them on that very day before the Election Officer for reconsideration of their claims (vide Annexures E to E 2). These petitions by themselves do not prove conclusively the correctness of their version. In this connection, Mr. Ghose urged that although the petitions were received by the Election Officer that very day, he did not controvert the allegations made therein. This is not quite correct. On that very day, that is, 24-7-1958, the Election Officer passed the following order on the petition of Kulanand Vaidik (petitioner No. 3) :
"The hearing of claims and objections was started at 11 a.m, and was continued. There is no merit in the petition. Rejected". (vide Annexure IVA) A similar order was passed on the petition of petitioner No. 1 also, but this appears to have beer passed on 31-7-1958. Any way, the fact remains that those allegations were controverted by the Election Officer. He has said that there is no merit in these applications. It can not be said, therefore, that the allegations of the petitioners are admitted by the opposite parties by implication. Therefore, there is nothing on the record to substantiate the allegations of the petitioners, and I have no good reasons to discard in toto the version of the opposite parties.
There is no allegation of malice or fraud, and when the Election Officer disposed of several thousand claims and objections, it is inconceivable that he will deliberately deny opportunity to the petitioners to press their claims and objections. Judged against this background the version of the opposite parties seems to be more probable. Be that as it may, the allegations of the petitioners are controverted by the opposite parties, and when the facts are in dispute and an appropriate writ can not be granted without investigation of complicated facts, a writ petition is not an appropriate remedy. In any view of the matter, this contention is wholly untenable and cannot be maintained.
8. Lastly, Mr. Ghose contended that there was no provision either in the Bihar and Orissa Municipal Act or in the Election Rules for an appeal against the orders of the Election Officer disposing of claims and objections. This objection was not taken by the petitioners in their petition. This contention was raised for the first time at the time of argument. Apart from this, it appears to be wholly misconceived and cannot be accepted as correct. There is no vested right for appeal against any decision. The right of appeal is a creation of the statute. As observed by Lord Goddard, C. J., in R. v. County of London uarter Sessions (1948) 1 All ER 72, it is elementary law that where an order is made or judgment given by a Court of competent. jurisdiction, an appeal will not lie to any Court unless it is expressly given by statute.
Mr. Ghose referred to a decision of the Supreme Court in Sri Jagannath Ramamij Das v. State of Orissa, 1954 SCR 1046: (AIR 1954 SC 400), which was followed by this Court in Jugal Kishore v. Labour Commissioner, Bihar, 1958 Pat LR 93 : (AIR 1958 Pat 442). None of these cases is an authority for the proposition that in every case an appeal must be provided from the judgment and order of a Court or Tribunal, nor do those decisions constitute an authority for the proposition that any provision of law empowering any authority to hear and dispose of cases is invalid unless appeal from that decision is provided by the statute or the rules made thereunder. In the case of Sri Jagannath Ramanuj Das (AIR 1954 SC 400) the Supreme Court were considering the validity of Sections 38 and 39 of the Orissa Hindu Religious Endowments Act, 1939, as amended by Amending Act II of 1952.
They held that these sections were ultra vires the Constitution because the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office. While considering whether or not Sections 38 and 39 of the said Act involved unreasonable restrictions upon the power to hold property, they considered inter alia the fact that there was no provision for appeal against the order of the executive officer responsible for the framing of the scheme.
Similarly, in the other case 1958 Pat LR 93 : (AIR 1958 Pat 442} this Court was considering whether the restrictions imposed by Section 26 (3) of the Bihar Shops and Establishments Act, 1953, was ultra vires as infringing Article 19(1) (g) of the Constitution of India. In this Act there was a provision for appeal, but, in substance, no appeal was provided. The Tribunal of the first instance was regarded as the appellate authority. Their Lordships, therefore, held that there was thus a great lacuna in the Act, and the restrictions imposed cannot be said to be reasonable.
While considering the reasonableness or otherwise of Section 26 (2) of the Act, they, on the lines of the Supreme Court decision above stated, took into consideration that there was no provision for appeal. These absence of provisions for appeal from a decision may be a very strong factor in considering the reasonableness or otherwise of a statutory provision, but to say that absence of appeal renders a statute unconstitutional is a different thing altogether. The provisions have to be judged on merits. The aforesaid cases, therefore, do not support the contention of Mr. Ghose, and accordingly it is rejected.
9. For these reasons, this petition is dismissed with costs. Hearing fee Rs. 75/-
Ramaswami, C.J.
10. I agree.