Patna High Court
Sukhdeo Narayan And Ors. vs Mahadevananda Giri on 14 April, 1961
Equivalent citations: AIR1961PAT475, AIR 1961 PATNA 475
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. The petitioners have filed this application in this Court under Article 226 of the Constitution of India for issue of a writ in the nature of quo warranto against the respondent who is holding --and, according to the petitioners, illegally -- the office of the Chairman of the Arrah municipality. The petitioners claim to be the voters of the various wards of the said municipality. In an election held on the 28th of March, 1959, commissioners of the municipality were elected.
The commissioners, at their first meeting held on the 12th of September, 1959, elected Mahanth Mahadevananda Giri, the respondent, who was admittedly not one of the commissioners, to be the chairman of the Board. In that election, Satrunjay Prasad Singh, one of the elected commissioners was also a candidate for the office of the chairman but he was defeated and the respondent secured the majority of votes.
2. On the 25th and 26th of September, 1959, Satrunjay Prasad Singh, the defeated candidate tor the office of the chairman, as also one Shri Bhagwan Singh, another elected commissioner of Arrah municipality, filed two separate election petitions in the court of the Election Commissioner, Shahabad, at Arrah, under the Bihar Municipal Elections and Election Petitions Rules, hereinafter to be referred to as the Rules, challenging the election of the respondent, inter alia, on the ground that he was not entitled to be elected as chairman of the municipality because at the time when the election tool place, he was neither an elected commissioner of the municipality not did he possess the other requisite qualifications as required by Sub-section (1) of Section 20 of the Bihar and Orissa Municipal Act, 1922, hereinafter to be referred to as the Act.
Both the petitions were heard together by the learned District Judge of Shahabad in his capacity as the Municipal Election Commissioner and were dismissed by his order dated the 7th of March, I960, under Rule 68, because of a fatal defect in them in that the provisions of Rule 65(2) (a) of the Rules were not complied with. The Election Commissioner, in regard to the main question mooted before him, held ".....that on the date of the election, namely on 12-9-1959, the respondent Mahanth did not possess the requisite qualifications as laid down in Section 20(1) of the Bihar Municipal Act for election to the office of the Chairman of the Municipality. On that date he was neither an elected commissioner, nor a person qualified to be one of their number."
3. Thereafter the present petitioners filed this application on the 10th of May, 1960, for an information in the nature of a quo warranto on the ground decided by the Election Commissioner against the respondent because he could not declare his election void as the election petitions were dismissed on, some technical grounds.
4. The case of the petitioners is this: The respondent was not registered as a voter in accordance with the rules made under Sub-section (1) of Section 15 of the Act either on the 28th of March, 1959 or on the 12th of September, 1959. He was, therefore, not entitled to vote at the election pf the municipal commissioners. That being so, he was not qualified under Section 17 to be a commissioner of the municipality on the 12th of September. Consequently, the commissioner could not elect the respondent to be the chairman under Section 20(1) of the Act. In answer to the rule, the learned Government Advocate" appearing for the respondent has urged that he was qualified to be a commissioner on the relevant date and, therefore, was validly elected as the chairman of the Arrah municipality by the commissioners.
In any event, he submitted, it is not a fit case where, in exercise of our discretion, we should issue a writ in the nature of quo warranto because (i) the petitioners are friends and associates of the two municipal " commissioners who had filed the election petitions against the respondent before the Election Commissioner and had failed and it is only when the relief sought for could not be granted by the Election Commissioner that, after much delay, the petitioners have been set up by the very same persons to get the same relief; and (ii) the respondent undoubtedly, at present, is a person qualified to be a commissioner of the Arrah municipality and he still commands a majority of votes in the Board.
5. Although the fact of the two election petitions having been filed by the two municipal commissioners was mentioned in the llth paragraph of this petition and a few passages from the judgment of the Election Commissioner were quoted in the I2th paragraph, the copy of the judgment was not filed as an annexure to the petition. A certified copy of it, however, was placed before us at the time of the hearing of this application. Mr. B. C. Ghose chiefly and mainly relied upon the decision of the Election Commissioner on the question mooted before us and submitted that the required writ should be issued almost as a matter of course in view of the said decision.
I am afraid he is not right in this regard Firstly, the present petitioners were not parties in either of the election petitions and, secondly, the ultimate decision of the Election Commissioner, on whatever ground it may be, was in favour of the respondent. I will presently, show that the materials placed before us are insufficient for the purpose of deciding the contentious question of the qualification of the respondent as on the 12th September, 1959 for being elected as chairman of the Arrah Municipality. But before I do so, I shall refer to some of the relevant provisions of the Act and Rules.
6. Section 15 of the Act provides:
"(1) The State Government shall, by rules, prescribe the qualifications and disqualifications, and the manner of the registration of voters at elections of Municipal Commissioners:
Provided that a person shall not be entitled to be registered as a voter who:
(a) has not attained the age of 21 years:
(b) is not a citizen of India; or
(c) is of unsound mind and stands so declared by a competent court.
(2) Every person who is registered as voter in accordance with rules made under Sub-section (1) shall be entitled to vote at an election of municipal Commissioners, and no person who is not so registered shall be entitled to vote at any such election."
The 17th section of the Act says:
"A person shall not be qualified for election to be a Commissioner of a municipality unless he is entitled to vote at the election of Commissioners of such municipality."
And, Sub-section (1) of Section 20 reads:
"Save as is otherwise provided in this Act, the Commissioners at a meeting shall elect by name one of their number or some person qualified to be of their number to be Chairman; provided that 110 salaried servant of Government shall vote in the election or be eligible for election."
1 shall now read Rule 3 and the first paragraph of Rule 4 of the Rules:
"3. 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."
"4. 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 word.
XXX X X"
In consonance with the statutory provisions of the Act it is further provided under Sub-rule (1) of Rule 5 of the Rules that 'no person who is not, and, except as expressly provided in these rules, every person who is' for the time 'being entered in the electoral roll of any ward of a municipality shall be entitled to vote in that ward of the municipality,' and Clause (a) of Rule' 6 then says that 'every person who is entitled to vote at an election under Rule 5 shall be eligible to be elected as a commissioner.'
7. There appears to be no dispute in this case that the respondent even before the 28th of March, 1959 possessed requisite qualifications for registration of his name as an elector at election of the municipal commissioners of Arrah municipality as he was qualified for registration as an elector at the election of a member to the Bihar Legislative Assembly of the State of Bihar.
It is further beyond dispute that somehow or the other his name did not find place in the electoral roll of the Assembly constituency of the State of Bihar for the time being in force relating to the local areas comprised within the limits of Arrah municipality and consequently he was not registered as a voter on the 28th of March, 1959, and was not entitled to vote at the election of the Municipal commissioners held on that date, although he was qualified to be registered as a voter within the meaning of Sub-section (1) of Section 15 of the Act. Only on the basis of the respondent's qualification to be entitled to be registered as a voter, Mr. Lalnarayan Sinha submitted that, reading the relevant provisions of the Act quoted above, he was a person qualified to be a commissioner of Arrah municipality either on the 28th of March or on the 12th of September, 1959 and he was, therefore, 'some person qualified to be of their number to be Chairman' of the commissioners.
Mr. B. C. Chose seriously contested this submission made on behalf of the respondent. I shall assume for purposes of this case that the argument put forward on behalf of the respondent in this regard-is not correct and that he was not a person qualified to be the commissioner of the Arrah municipality only on the basis of his being entitled to be registered as a voter. This takes me to the more contentious question which I would have liked to decide but find it difficult to do so for insufficiency of the materials placed before us.
8. It would appear from the judgment of the Election Commissioner that the name of the respondent was not there in the electoral roll of the Arrah town constituency of the Bihar Legislative Assembly as in force on 1-1-59, which roll was Ext.1 before the Election Commissioner. This fact is not in dispute before us either. But it would further appear from the said judgment that reliance had been placed on behalf of the respondent upon a petition, marked Ext. 2 in the court of the Election Commissioner, filed by him on 29-8-59 for inclusion of his name in the electoral roll of the Assembly constituency for Arrah town.
This application was filed, in form 4 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, and thereon an order was made by an officer as 'revising authority' on 31-8-50 directing that the name of the respondent Mahanth be included in the electoral roll. The argument on behalf of the respondent, relying upon two Bench decisions of this Court in Ramkishun Singh v. Tribeni Prasad Singh, AIR 1959 Pat 356 and Chandra Shekhar Prasad Singh v. Jai Prakash Singh, AIR 959 Pat 450, was that the order dated 31-8-59 had in the eye of law the effect of including the name of the Mahanth in the relevant electoral roll on the day the order was made; consequently he was a registered voter on the 12th of September 1959.
Mr. Ghose has not been able to contend before us that the election of the impendent as chairman of the commissioners of Arrah municipality would foe illegal even if it be held that, in the eye of law, he was a registered voter on the 12th of September, 1959. We were asked to hold that he was not so mainly because it was so held by the Election Commissioner. I am not prepared to found my decision in this regard only upon that or the Election Commissioner.
In spite of the fact that the present petitioners had knowledge of the facts mentioned and discussed in the judgment of the Election Commissioner, they have not, but for the quoting of a few passages from his judgment, stated any fact in connection thereto in their petition filed on the 10th of May, 1960, nor have they, even till the time of the hearing of the application, placed before us any copy of the petition which was Ext. 2 before the Election Commissioner and of the order dated 31-8-59 passed thereon.
A counter-affidavit was filed on behalf of the respondent on the 29th of July, 1960 wherein a claim was made that he was fully qualified to be a commissioner of the Arrah municipality but the facts relating to the filing of the petition on 29-8-59 and the passing of the order thereon on 31-8-59 were not mentioned therein. The bona fides and the right of the petitioners to file this application were challenged in that counter-affidavit. A rejoinder to the counter-affidavit was filed on behalf of the petitioners on 18-10-60.
Therein again, the facts of challenge of "he petitioners* right and bona fides to present this petition were controverted but no reference was made to the petition and the order dated 29-8-59 and 31-8-59 respectively. A further affidavit controverting the allegations made on behalf of the petitioners in their affidavit filed on 18-10-60 was filed on behalf of the respondent on 21-11-60 but no fact of importance on the question I am discussing was mentioned therein either. The case was placed on the Daily List for hearing on the 4th of April, 1961 and was reached on the 5th. On the 4th of April, 1961, however, a further affidavit was filed 'by the respondent stating therein:
"2. That I applied in form 4 under the Representation of the People Act 1951 for inclusion of my name, which was by mistake left out, in the electoral roll of the Arrah constituency of Bihar Legislative Assembly on 29-8-59 since I was to contest the election of the Chairman of Arrah Municipality.
3. That on 31-8-59 the application of the deponent was allowed with the following order:
'Awedan karta ka nam charhaya jai'.
4. That thereafter the name of the deponent was entered in the electoral Roll of Arrah Constituency of the Bihar Legislative Assembly, the true copy of the said entry is enclosed herewith as Annexure 'P' and the certified copy of the same is in the record before the District Judge, Arrah."
Annexure 'P' referred to in the 4th paragraph of this affidavit shows that the respondent's name stood included in the relevant electoral roll on 25-1-60 on the strength of a shudhi patra. The respondent further claimed in the said affidavit:
"5. That the deponent still commands absolute majority of the elected commissioners of the Arrah Municipality.
6. That there are altogether 41 commissioners including the deponent of the Arrah Municipality.
7. That on 1-11-60 a resolution of votes of confidence in the deponent was moved by one of the commissioners Sri Jugeshwar Nath Pandey which was seconded by Sheonarayan Pandey in the following words -- 'Arrah Nagar Palika ke bratman Adhychh Sri Mahanth Mahadevanand Giri par ham Nagar Palika ke Sadaysy purn biswas karte hain.'
8. That the said meeting in which the above resolution was moved was attended by 24 commissioners and was presided over by the President Sri Chandrika Pd. Singh.
9. That the vote of confidence in favour of the deponent was passed by 23 commissioners on 1-11-60.
10. That the resolution of vote of confidence passed in favour of the deponent was affirmed by the commissioners of the said Municipality on 30-1-61 in which 27 commissioners were present." The said affidavit was sworn by the respondent on 3-4-61 and a copy of it was also served on the learned advocate for the petitioners on that day. A . reply affidavit to this affidavit was sworn on behalf of the petitioners on 4-4-61 and was actually filed before us on 6-4-61 when the hearing of the case was resumed; it was on this date that the hearing concluded also. In this affidavit, it was stated on behalf of the petitioners:
"3, That the application was made by the Respondent to the Revising Authority under the Representation of the People Act 1950 and the rules made thereunder on the 29th August 1959 and the Revising Authority passed an order on the 31st August 1959 without complying with the requirements of law on the subject.
4. That even then it would appear from the annexure 'P' itself the correction was not made by issue of 'sudhi Patra' by the appropriate authority until after the 12th September, 1959.
5. That the deponent has wilfully suppressed the date on which his name appeared in the electoral roll in paragraph 4 of his affidavit.
6. That he has wilfully suppressed the fact that his application was addressed to the Revising. Authority under the Representation of the People Act and its rules.
7. That the statement made in paragraph ,5 is absolutely wrong.
8. That the statements made in paragraphs 7 to 11 are irrelevant but still it will only show that the respondent's supporters had an apprehension that the respondent had lost the confidence of the majority of the Commissioners otherwise there 'was. no reason for moving vote of confidence.
9. That there is no provision in law for moving a vote of confidence.
10. That the petitioner had been informed that a number of commissioners had not received the notice for the aforesaid meeting."
Under the Representation of the People Act 1950, hereinafter to be referred to as the Central Act, electoral rolls are prepared under Sub-section (1) of Section 21 in the prescribed manner by reference to the qualifying date and come into force immediately upon their final publication. The said electoral rolls are revised thereafter in every subsequent year in the prescribed manner by reference to the qualifying date.
Under Section 14(b) of the said Central Act 'qualifying date', in relation to the preparation or revision of every electoral roll under this Part, means "the 1st day of January of the year in which it is so prepared or revised". Section 23 of the Central Act provides for inclusion of names in electoral rolls of persons whose names are not included therein. The prescribed rules for preparation of electoral rolls are to be found in the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Rules 4 to 9 prescribe the form and language of the electoral roll and its prepara tion in parts.
Rules 10 and 11 deal with publication of, and further publicity to the draft roll prepared. Rules 12 to 21 prescribe the period for lodging claims and objections to the electoral roll and the form in which they are to be lodged and the manner in which they are to be dealt with. Then the final publication of the electoral roll is made in accordance with Rule 23. Rule 25 provides for annual revision of electoral roll. The process of preparation of revisional roll, the publication of its draft and the manner of dealing with the claims and objections thereto are almost the same as those of preparation of the electoral rolls. Rule 26 concerns the applications made under Section 23 of Central Act for inclusion of names in the electoral rolls.
9. A question was posed before us as to whether the application by the respondent on the 29th of August, 1959, was one made under Rule 13 during the course of the annual revision of the electoral roll in accordance with Rule 25 or it was one under Rule 26 for inclusion of the respondent's name in the electoral roll under Section 23 of the Central Act. This controversy was raised because of the decision of the Election Commissioner in this regard against the respondent.
It was contended by Mr. Ghose for the petitioners that the principle decided in the two Patna Bench decisions referred to above, AIR 1959 Pat 356 and AIR 1959 Pat 450 is not applicable to the facts of this case as the application of the respondent was addressed to, and the order thereon was passed, by the revising authority and not by the electoral registration officer. That being so, counsel submitted, the order by itself had not the effect of including the name of the respondent in the electoral roll unless and until the revised electoral roll on its final publication, came into force in accordance with Sub-rule (3) of Rule 25.
Mr. Lalnarayan Sinha, on the other hand, contended that it mattered little whether the application was addressed, to, or dealt with by, an officer designing himself as the revising authority as the same officer was the electoral registration officer also and the order being one on an application made under Rule 26 had the effect of including the name of the respondent in the electoral roll as soon as it was made. The materials placed before us, in my opinion, are not sufficient to enable me to decide this contentious question one way or the other.
I do not find any material in the judgment of the Election Commissioner to show that the application by the respondent was made during the course of the proceeding for annual revision o£ the electoral roll in question nor is there any material to show that the draft revisional roll was published and the application was filed in form 4 by the respondent by way of a 'claim' for inclusion of his name under Rule 13. The application under Rule 26 also is to be made in the same form.
One obvious difficulty which is there in accepting the argument put forward on behalf of the respondent either is that under Sub-rule (3) of Rule 26 a copy of an application made under Sub-rule (l) had to be posted in some conspicuous place in the office of the authority together with a notice inviting objection to such application within a period of 7 days from the date of such posting and the order under Sub-rule (4) of the said rule could only be passed on expiry of the said period.
In the instant case, for aught we know, the order was passed within 2 days of the filing of the application. In these circumstances, I am unable to arrive at any definite conclusion in regard to this contentious question and to say with certainty that the respondent's name stood included in the eye of law in the electoral roll in question on the 12th of September, '1959 when he was elected as the chairman of the Arrah municipality. Be that as it may, in my opinion, it is not it case where a writ in the nature of quo warranto should be issued.
10. Although the circumstances of the case do indicate that the petitioners have come forward to this Court on the 10th of May, 1960, after the dismissal of the two election petitions on the 7th of March, 1960, at the instance of the petitioners in the election petitions, I do not propose to rest my refusal of the exercise of the discretion on that ground. The law for exercise of discretion by the Court for an information in the nature of quo warranto or an injunction in lieu thereof is stated in Article 281 (p. 148) of Halsbury's Laws of England, 3rd Edition, Volume 11 thus:
"An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective. It is conceived that the Court will follow similar principles in determining whether to grant an injunction in lieu."
In Bhairulal Chunilal v. State of Bombay, AIR 1954 Bom 116 Chagla, C. J., sitting in Division Bench, has observed at page 120 column (2):
"It is well settled that where you have statutory provisions dealing with Ihe conduct of an election the writ of 'quo warranto' is displaced. An election then can only be challenged in the manner laid down by the statute."
In Hari Shankar Prasad v. Sukhdeo Prasad, AIR 1954 All 227, a Full Bench of the Allahabad High Court refused to entertain an application under Article 226 of the Constitution of India for grant of information in the nature of quo warranto to invalidate the constitution of the Election Tribunal on the ground that one of the members was not qualified to act as such member at the date of his appointment, as at the date of the hearing of the petition he had become so qualified and there was nothing to bar his reappointment Applying the principles stated above to the facts of this case, two things are clear to me -- (i) the relief sought for in the present application could be and was sought for by an election petition but was not granted, whatever may be the reason; and (ii) admittedly the respondent's name stood included in the electoral roll on the 25th of January, 1960, as is apparent from annexure 'P to the last affidavit filed on his behalf and referred to above, which fact is not expressly controverted in the last reply affidavit filed on behalf of the petitioners.
Mr. Ghose, however, contended that the effect of the entry of the respondent's name on the 25th of January, 1960, would be to include his name on the 1st of January, 1960, the qualifying date for the year 1960. Even assuming that to be so, the respondent undoubtedly -- rather admittedly -- is a registered voter of the municipality since at least 11-1-1960. In view of the facts stated in the last affidavit filed on behalf of the respondent on 4-4-61 it is further clear that he still commands a majority of votes and is bound to be elected as the chairman of the municipality even if a fresh election is held. In that view of the matter, to grant a quo warranto information would be 'vexatious to do so' or it would be 'futile in its results'. Further, as I have said above, there was an 'alternative remedy which was equally 'appropriate and effective.'
11. In the result, I would reject the application but make no order as to cost.
Ramaswami, C.J.
12. I agree.