Patna High Court
Bishwanath Prasad And Ors. vs Ramji Prasad Sinha And Ors. on 29 August, 1963
Equivalent citations: AIR1964PAT459, AIR 1964 PATNA 459
JUDGMENT Tarkeshwar Nath, J.
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:
"Provided that where the wards into which the Municipality is divided for the purpose of elections of commissioners are not identical with the wards into which the particular Assembly Constituency is divided for the purpose of election to the Bihar Legislative Assembly, or the electoral roll of the Assembly Constituency is, in the opinion of the District Magistrate, not deemed suitable to be the electoral roll for the purpose of the municipal election a fresh electoral roll for each ward of such Municipality shall be prepared by the District Magistrate, or any other person authorised by the District Magistrate in this behalf, on the basis of qualifications for registration of electors specified in Rule 3 and in accordance with the programme to be drawn up by the State Government and published in the official Gazette, in the form prescribed below. In preparing such fresh electoral rolls, the forms of the electoral rolls, claims, objections, etc., shall, with necessary modifications, be the same as have been prescribed in the Representation of the People Act, 1950 (43 of 1950) and the rules made thereunder and the provisions of Sections 18, 20, 22 and 23 of the said Act applicable in relation to Assembly constituencies shall, as far as may conveniently be and with the necessary changes in points of detail, apply to every such, case of a fresh electoral roll."
This proviso envisages that, in certain case it is open to a District Magistrate to come to a conclusion that the electoral roll of an Assembly constituency is not suitable to be the electoral roll for the purposes of Municipal election. It is further open to him to direct the preparation of a fresh electoral roll for each ward of a municipality. If he decides to have a fresh electoral roll prepared, the procedure for it will be the same as prescribed in the Representation of the People Act, 1950 (43 of 1950) and the rules made thereunder. It will be proper to refer here to the following note appended to Rule 4.
"Where an electoral roll of the Assembly constituency, which is deemed suitable to be the electoral roll for the purposes of the Municipal election, does not contain the name of any persoii entitled to be registered in the electoral roll or contains any erroneous or defective entry, the person concerned, may, in accordance with the provisions of Sections 22 and 23 of the Representation of the People Act, 1950, get his name included and other corrections made in that roll till the date on which a poll in respect of the Municipal election is to be taken."
4. Notification No. 118 Elec. dated 4-2-1960 of the District Magistrate Muzaffarpur was in these terms:
"Whereas the terms of office of the Members of the present board of Sitamarhi Municipality has expired and the General Election of the Municipality has become due, therefore, in exercise of the powers conferred under Section 7 of the Bihar Municipal Elections and Election Petitions Rules, 1953, I.S.M. Sulaiman, District Magistrate, Muzaffarpur, do hereby call upon all tile wards of the Municipality to elect Municipal Commissioners in accordance with the provisions of the Bihar arid Orissa Municipal Act, 1922 and the rules thereof on or before the 31st May 1960."
This is Annexure A of the petition. There were other notifications and the date for election was postponed to 12-6-1960. The notification, referred to above, indicates clearly that the election, of the Municipal Commissioners was to be held in accordance with the provisions of the Bihar and Orissa Municipal Act and the Rules thereof. The Act and the rules have to be taken together and in the present case the District Magistrate of Muzaffarpur did not consider that the electoral roll of the Assembly Constituency was unsuitable for the purposes of the election of the Municipal commissioners of the Sitamarhi Municipality. The counter-affidavit sworn by the Election Supervisor indicates clearly 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 Election Rules. That electoral roll of the Assembly constituency was finally published on 30-10-1959 and the notifications of the District Magistrate calling upon the wards to elect commissioners were issued after this date. The nominations also were called for subsequent to 30-10-1959 and the scrutiny as well took place long after that date. I thus find no illegality in the notifications, referred to above, and it must be held that the District Magistrate rightly decided to adopt the electoral roll of the Sitamarhi South Assembly constituency as the basis for calling for the nominations for the election of the Municipal Commissioners. Reference may be made in this connection to the decision in the case of Brahamdeo Prasad Singh v. Narsingh Prasad, 1959 Pat LR 179 where Rule 4 has been referred to and the powers of the District Magistrate have been considered.
5. The next question which arises for consideration is as to which electoral roll--whether the qne in existence on and from 30-10-1959 or the next one published on 9-5-1960, was used at the time of the polling which took place on 12-6-1960. Learned Government Pleader submitted that the electoral rolls had to be revised annually and there were certain amendments to the electoral roll published on 30-10-1959. According to him, those amendments were finally published on 9-5-1960 and the electoral roll finally published on 30-10-1959 along with the amendments was used at the polling which took place on 12-6-1960. He pointed out that these amendments were printed in Hindi and were known as "Shudhi patra" and the position was that by these amendments, names of certain voters were added t6 the roll whereas the names of others were deleted from the electoral roll which was in existence on and from 30-10-1959. A question arises as to whether this procedure is justified according to the provisions of the Municipal Act read with those of the Representation of the People Act, 1950, and the rules made under Section 28 of that Act? Before considering the various provisions and the rules, it is necessary to point out that certain steps have to be taken before the votes are actually recorded. There has to be a notification at first about the holding of an election and then comes the nomination. After the nomination papers are filed, a scrutiny of the nomination has to be held and then a list of the candidates whose nominations have been held to be valid is prepared. It is then open to any nominated candidate to withdraw his candidature. It is also open to a candidate to retire from the contest and next to that in the process of election is the Poll. Turning to the provisions of the Representation of the People Act, 1950, it appears that Section 21(1) provides that the electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act. Sub-section (2) of Section 21 provides that the said electoral roll shall thereafter be revised in every subsequent year in the prescribed manner by reference to the qualifying date, and there is a proviso that if for any reason the electoral roll is not revised in any year, the validity or continued operation of the electoral roll shall not thereby be affected. Under Sub-section (3), it is open to the Election Commission at any time, for reasons to be recorded, to direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit. Section 23 of the Representation of the People Act, 1950, before its amendment of 1956, had provided that the electoral roll for each constituency shall be prepared every year in the prescribed manner by reference to the qualifying date. According to that provision, the electoral roll had to be prepared each year, but that meant considerable expense, an enquiry from house to house and rewriting of the rolls every year. In order to avoid the trouble, expense and waste of time and energy, Section 23 was substituted by Section 21 and Sub-section (2) provides for an annual revision instead of an actual preparation of the rolls every year. Rules have been framed under Section 28 of this Act and Rule 23 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, is as follows:
"The electoral registration officer shall thereafter publish the roll, together with the list of amendments by making a complete copy thereof available for inspection, and displaying a notice in Form 6:
(a) at his office, if it is within the constituency, and
(b) at such a place in the constituency as may be specified by him for the purpose, if his office is outside the constituency and on such publication, the roll, together with, the list of amendments, shall be the electoral roll for the constituency.
Provided that the electoral registration officer may, at any time, correct any clerical or printing errors that he may discover in the electoral roll."
6. Then comes Section 22 of the said Act and it reads thus:
"If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or
(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry:
Provided that before taking any action on any ground under Clause (a) or Clause (b) or any action under Clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him."
There used to be inaccuracies in the electoral rolls, mainly of two kinds. Sometimes, the names of the dead and non-resident electors used to continue in the electoral rolls even long after their death or their abandonment of residence in the constituency. This section now gives power to the Electoral Registration Officer to exclude the names of dead or non-resident electors at any time from the electoral rolls. Clause (c) envisages deletion of names of persons on the further ground that they were not entitled to be registered in the electoral roll, but before doing so, the person concerned is entitled to be heard. Rule 25 of the said Rules also is relevant and it can be usefully quoted:
"25. (1) For the purpose of the revision of the electoral roll for any constituency under Sub-section (2) of Section 21, a list of amendments to the electoral roll for the tune being in force shall be prepared and the provisions of Rules 4, to 9 shall, so far as may be, apply in relation to the preparation of such list as they apply in relation to the preparation of the electoral roll.
(2) When any such list of amendments to an electoral roll for a constituency has been prepared, the electoral roll for the constituency for the time being in force, together with such list of amendments shall be published in draft in the manner specified in Rules 10 and 11 and the provisions of Rules 12 to 23 shall, so far as may be, apply in relation to every such roll (including the list of amendments) as they apply in relation to electoral rolls prepared under.
(3) When the electoral roll together with the list of amendments is finally published under Rule 23, the electoral roll shall be deemed to have been revised accordingly and the roll as so revised shall come into force immediately oft such final publication."
7. Section 23 of the said Act is in the following terms:
"23. (1) Any person whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll.
(2) Where an application under sub-section (1) is made at any time after the issue of a notification calling upon that constituency or the Parliamentary constituency within which that constituency is comprised, to elect a member or members and before the completion of that election, it shall be made to the chief electoral officer; and in any other case, it shall be made to the electoral registration officer of that constituency, (3) The chief electoral officer or, as the case may be, the electoral registration officer shall if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein:
Provided that if the applicant is registered in the electoral roll of any other constituency, the Chief Electoral Officer or, as the case may be the Electoral Registration Officer shall inform the Electoral Registration Officer of that constituency and that officer shall, on receipt of the information strike off the applicant's name from that electoral roll."
This section envisages that even after the issue of a notification calling upon a constituency to elect a member, but before the completion of that election, an application for inclusion of name in the electoral roll can be filed before the Chief Electoral Officer; in other words, a person can in certain cases get himself enrolled as a voter even after the nominations and the scrutinises thereof but before the actual polling. Such applications for inclusion of names in the electoral rolls are entertainable even after the final publication of the electoral rolls under Rule 23. Rule 26(1) lays down that every application, under Sub-section (1) of Section 23 shall be made in duplicate in Form 4 (Part I) and shall be accompanied by a certain amount of fee. Sub rule (3) provides that the chief electoral officer or, as the case may be, the electoral registration officer shall, immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting. Sub-rule (4) reads as follows:
"The chief electoral officer or, as the case may be, the electoral registration officer shall, as soon as may be after the expiry of the period specified in Sub-rule (3), consider the objections if any, received by him and shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein".
8. I have already quoted the note appended to Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, and according to that note, it is open to a person to get his name included and other corrections made in an electoral roll in accordance with the provisions of Sections 22 and 23 of the Representation of the People, Act, 1950, even till the date on which a poll in respect of a municipal election is to take place. It is, therefore, clear that under Section 23 of the said Act, names can be included in the electoral roll even till the date of the poll, but the question is as to what was done in the present case by the authorities on 9-5-1960. It has to be ascertained as to whether there was an annual revision of the electoral roll in 1960 as provided by Section 21(2) of the said Act, or there were corrections of certain entries and inclusions of certain names as envisaged in Ss. 22 and 23 respectively of the said Act. This question is one of fact and it can be answered by reference to the affidavit of the Election Supervisor He stated in paragraph 6 of his affidavit that at the dates of filing of 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, and the existing roll together with the list of amendments was finally published under Rule 23 of the said Rules on 9-5-1960. Rule 25 itself refers to Sub-section (2) of Section 21 and lays down inter alia that a list of amendments to the electoral roll for the time being in force shall be prepared and the electoral roll together with such list of amendments shall be published in a certain manner. Thus, according to him, the revision of the electoral roll was under Sub-section (2) of Section 21 and after that the existing roll together with a list of amendments was finally published on 9-5-1960. It is further clear from his affidavit that this revised roll was used at the time of polling on 12-6-1960. The substantial question for consideration is as to whether the electoral roll with the list of amendments incorporated in it and published on 9-5-1960 could be used at the time of the said polling. Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, no doubt 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 it 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 election of Municipal Commissioners. But it has to be ascertained as to which electoral roll of the Sitamarhi South Assembly Constituency was in force at the time the District Magistrate of Muzaffarpur called upon all the wards of the Sitamarhi Municipality to elect Commissioners for that Municipality. His second notification was on 4-2-1960 and on that date, the electoral roll published on 30-10-1959 was in force. The expression "for the time being in force" in rule 4 will have reference to the time when the District Magistrate calls upon the wards of a Municipality to elect Commissioners. It cannot be said that the revised roll published on 9-5-1960 was in force at the time the District Magistrate made the notifications either on 20-2-1959 or 4-2-1960. The matter can be considered from another view point. In the present case, 27-4-1960 was the last date for the filing of the nomination papers and A person intending to file his nomination paper had before him the electoral roll finally published on 30-10-1959, and not the one which came to be published later on 9-5-1960. That person visualised his chances of success or otherwise in the election on reference to the electoral roll which had been published on 30-10-1959 and he may have counted on the support of several persons who were registered as voters in that roll. Having taken these factors into consideration, he decided to be a candidate, and that being so, if the revised electoral roll of 1960 came to be used at the time of the polling, he was naturally taken by surprise, little knowing that his merits or otherwise for his election would be judged by a different set of persons whose names would be entered in the revised roll. In case, however, there were corrections of certain entries and inclusion of names in the electoral rolls as provided in sections 22 and 23 respectively the matter might have stood on a different footing and, in fact, the note appended to Rule 4 itself indicates that it is open to a person to get his name included and other corrections made in an electoral roll even till the date of the polling. In the present case, it was not that there were corrections of entries and inclusions of names in the electoral rolls as provided by those sections and the note to rule 4. I am thus of the view that, according to the rules, the electoral roll which is in force at the time of the notification by a District Magistrate calling upon the wards to elect Commissioners has to be used at the time of the polling, subject to the corrections of entries and inclusions of names in accordance with the said note and the provisions of sections 22 and 23 of the said Act. To put it in other, words, the position is that the electoral roll which was in force at the time of the notification should be used for the purpose of election according to rule 4 of the Bihar Municipal Elections and Election Petitions Rules. This was not done in the present case and instead of that, the revised roll published on 9-5-1960 came to be used at the time of the polling with the result that this procedure has vitiated the entire election and the petitioners are entitled to succeed on this ground.
9. Learned Government Pleader alternatively argued that the names could be included in the electoral roll under Section 23 of the Act and, although persons whose names came to be included under that section could not be candidates for the election in question, yet they had a right to vote. He submitted that once a person gets his name entered in the electoral roll, he was entitled to vote and Rule 5 (i) of the Bihar Municipal Elections and Election Petitions Rules, 1953, was in the following terms:
"No person who is not, and, except as expressly provided by these rules, every person who is, for the tune being entered in the electoral roll of any ward of a municipality shall be entitled to vote in that ward of the municipality."
He pointed out that Section 62(1) of the Representation of the People Act, 1951, was almost an similar terms and it provided that no person who is not, and except as expressly provided by this Act, every person who is? for the time being entered in the electoral roll of any constituency shall be entitled to vole in that constituency. The inclusion of names in the electoral roll even fill the time of poll in accordance with Section 23 gives a special privilege for voting in the assembly election to persons who choose to apply under that section. The moment the name of a person is entered in the electoral roll of any constituency, he becomes an elector in accordance with the provisions of Section 2(1) (e) of the Representation of the People Act, 1951 (Act XLIII of 1951). The purpose of Section 23 and Rule 26 came to be considered in the case of Chandra Shekar Prasad Singh v. Jai Prakash Singh, AIR 1959 Pat 450 and it was observed as follows:
"When a direction has been passed under Section 23 of Act XLIII of 1950 read with Rule 26, directing that a particular name not included in the electoral roll should be included therein, it ought to be sufficient for the purpose of holding that a person whose name has been ordered to be included is, an elector within the meaning of Section 2(i) (e) of Act XLIII of 1951."
The contention of learned Government Pleader is undoubtedly correct that persons included in the electoral roll according to the note to rule 4 read with Section 23 of the Act even till the time of the polling had a right to vote. But this contention is of no help to him, inasmuch as in the present case, the roll which came to be used at the time of the polling was an annually revised roll and not the one including certain names only in accordance with Section 23 of the Act.
10. Some specific objections have been taken by the petitioners in paragraphs 13 and 14 of their petition. They have mentioned in paragraph 13 that petitioners 7 and 12 were also anxious to be candidates, but since the electoral roll was not finally published they could not be included in the roll. Paragraph 13 does not give a clear idea as to what was the grievance of petitioners 7 and 12, but learned counsel for them amplified it and submitted that the position was that the names of petitioners 7 and 12 did not appear in the electoral roll published on 30-10-1959 and as such they were debarred from being candidates. Even accepting his submission that this was really meant by paragraph 13, the position is that it was open to them to take objections at the time the draft electoral roll was published and got their names entered in the electoral roll which was being prepared in 1959. They not having taken necessary steps in that direction within the prescribed tune or thereafter under Section 23 it is not open to them to agitate that matter at this stage, particularly in an application under Article 226 of the Constitution of India. Paragraph 14 was as follows:
"That petitioners Nos. 1 to 6, and 8 to 11 and 13 to 14 are the voters of the said Municipality but since the Electoral Roll was not finally published before calling the constituency to elect, they could not elect commissioners according to their choice."
The last line of this paragraph indicates that the grievance of those petitioners was that they could not vote, but learned counsel submitted that their real grievance was that their names did not appear in the electoral roll published in 1959 and as such they could not offer themselves as candidates for this election. Their position is no better than those of petitioners 7 and 12 and they not having taken proper steps for getting their names registered in the electoral roll prepared in 1959, their objection at this stage is neither maintainable nor justified.
11. Learned counsel for the petitioners further contended that names of certain persons which were entered in the electoral roll published in 1959 were deleted in 1960 and that was not justified according to the relevant provision's of the Act and the rules. According to him, correction of entries in the electoral rolls as provided in Section 22 could be made before the final publication of the electoral roll and not after that. In other words, according to him, all the persons whose names were entered in the electoral roll of 1959 were entitled to vote in the polling which took place on 12-6-1960 and the name of not even one of them could be deleted in 1960. Learned Government Pleader, on the other hand, refuted this contention and urged that even after the final publication of the electoral roll which was in 1959, it was open to the Electoral Registration Officer to correct an entry if it was erroneous or defective in any particular and also to delete any entry on the ground that the person concerned was dead or had ceased to be ordinarily resident in the constituency or was otherwise not entitled to be registered in that roll. In this manner, he attempted to justify the deletion of certain names in 1960 and the preparation of the amended list in that year which along with the electoral roll of 1959 came to be used according to him, at the time of polling on 12-6-1960. In the present case, the revised electoral roll as finally published on 9-5-1960 having been used at the time of poll, the question as to whether the entries in the electoral roll could be corrected under Section 22 before or after the final publication of the electoral roll hardly arises, but it having been raised and canvassed, I would refer in this connection to the decision in the case of Ramkishun Singh v. Tribeni Prasad Singh, AIR 1959 Pat 356. It was argued in that case that the Electoral Registration Officer had no jurisdiction to direct any correction under Section 22 after the final publication of the electoral roll under Rule 23 of the Representation of the People (preparation of Electoral Rolls) Rules, 1956. Subsection (1) of Section 21 was referred to which provided for the final publication of the electoral roll for each constituency in accordance with the rules framed under that Act. Dealing with this contention, Kamla Sahai J. observed as follows:
"Sub-section (2) of Section 21 provides ior periodical revision of the electoral roll, and subsection (3) lays down that, under the direction of the Election Commission, there may be a special revision at any time. Sections 22 and 23 of the same Act provide, respectively, for correction of entries in electoral rolls and inclusion of names of electors when those names are omitted from the' rolls in which they should have been entered. Rule 23 of the Electoral Rules provides for final publication of the roll of each constituency, and Rule 25 relates to final publication of the roll together with lists of amendments after, annual revision. Rule 26 lays down the procedure for disposal of applications for inclusion of names under S. 23 of the Act of 1950.
A perusal of these provisions makes it quite clear that the stage of correction of entries under Section 22 and inclusion of names under Section 23 of the Act of 1950 comes after the final publication under Rules 23 and 25 of the Electoral Rules. When these provisions were pointed out to Mr. Das, he abandoned his argument relating to want of jurisdiction in the Electoral Registration Officer".
This decision definitely lays down that the stage of correction of entries provided by Section 22 comes after the final publication of the electoral roll. I am thus of the view, that there is no merit in the contention of learned counsel for the petitioners that there could be no deletion of names under Section 22 after the final publication of the electoral roll of 1959 (12) Specific objection has been taken in paragraph 12 of the petition to the effect that petitioners 15, 16 and 17 were voters at the time when the constituency was called upon to elect but their names were deleted without reason in the final publication and as such they could not be candidates. It is difficult to appreciate this objection, inasmuch as if their names were in the electoral roll published in 1959, it was open to them to be candidates. Learned counsel, however, submitted that this paragraph was not worded properly and the grievance of those three petitioners was, that their names had been wrongly deleted in 1960. This objection cannot be taken in the present application as it requires investigation of certain facts and the order of one officer or the other deleting the names of these petitioners is not before the Court. The facts and circumstances which led to the deletion of their names have not been disclosed in the petition and the order deleting their names cannot] be the subject-matter of this application.
13. The petitioners stated in paragraph 15 that "some persons like Shri Rajendra Prasad Respondent No, 14, Alilur Ansari and Tapeshwar Singh who were not voters in the finally published electoral roll but their names appeared is the draft roll became candidates for election and Respondent No. 14 though not a voter was illegally elected. as Commissioner from Ward? No. 14." This paragraph, I must say, has not been couched in proper language and it does not give a clear idea as to what was the grievance of the petitioners. Learned counsel tried to amplify the statements made in paragraph 15 as well and he pressed that the name of respondent 14 did appear in the electoral roll published in 1959 but it was deleted in 1960 and as such the election of respondent 14 from Ward No. 14 was illegal and invalid. In answer to this, Gagandeo Singh, an employee of respondent 15, stated in his counter affidavit that respondent 14 was a voter and was legally elected as a Municipal. Commissioner on the basis of the electoral ' roll which was in existence at the time of filing nominations. The counter-affidavit of the Election Supervisor was that respondent 14 was a voter from Ward No. 14 in the electoral roll finally published on 30-10-1959 and the said respondent became a candidate from that ward of the Municipality. There was, however, an objection to respondent 14's being a voter from ward No. 14 on the ground that he was resident of ward No. 15 and that objection was allowed by the revising authority. Respondent 14 did not later on make a prayer for being enrolled as a voter from ward! No. 13 and consequently he could not be enrolled as a voter. As regards the other two persons mentioned in para 15, he stated that they did not stand as candidates. It thus appears that Rajendra Prasad (respondent 14) was a validly nominated candidate and he could seek election as a Municipal Commissioner of the Sitamarhi Municipality.
14. Learned Government Pleader took an objection to the maintainability of the present application for a writ and submitted that even if there was some irregularity or illegality in, the election, the remedy of the petitioners was to file an election petition as provided in Rule 62 of the Bihar Municipal Elections and Election Petitions Rules, 1953. He referred to Rule 75 (c) as well and submitted that it was within the jurisdiction of the Election Commissioner to decide as to whether the result of the election was materially affected by the improper acceptance or rejecttion of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote or by the reception of any vote which was invalid, or by any non-compliance with the provisions of the Act or of the rules framed under the Act in respect of the election. According to him, the objections raised in paragraphs 12 to 15 of the petition should be raised in an election petition before the Election Commissioner, if the petitioners-choose to file an election petition and, in any event, those matters should not be gone into in the present application. Mr. Lalnarain Sinha appearing for respondents 1 to 24 reiterated this objection and submitted that even if the names of some persons were rightly or wrongly included in the electoral roll or deleted from it, the remedy of the petitioners, lay before the Election Com-missioner and not in this Court. It was further pointed out that respondents 1, 2, 7, 12, 15 and 23 were elected as Municipal Commissioners without any contest and the entire election should not be set aside. The position in the present case was that the electoral roll published on 30-10-1959 was in force at the time when the District) Magistrate called upon the wards to elect Commissioners of the Sitamarhi Municipality, but the revised roll published on 9-6-1960 was used at the time of the poll on 12-6-1960, There was no illegality in the notifications calling upon the wards to elect Commissioners, but the revised roll published on 9-5-1960 has been wrongly and illegally used at the time of poll and that has vitiated the entire election. People have to exercise their rights, of franchise on the basis of the electoral roll and if the roll itself is not a proper one the very foundation of election is shaky and infirm and the election cannot stand. The petitioners are entitled to a writ on this ground.
15. In the present case, the validity of the entire election having been challenged on account of the violation of the provisions of the Election Rules, Rule 62 cannot be a bar to the petitioners getting relief in the present application and reference may be made to the case of Parmeshwar Mahaseth v. State of Bihar AIR 1958 Pat 149.
16. In the result, this application is allowed and a writ of certiorari would issue quashing the election of respondents 1 to 24 held on 12th June 1960, and there would be a mandamus against the District Magistrate, Muzaffarpur (respondent 25) to hold fresh election according to law. In the circumstances of this case, there will be no order for costs.
Mahapatra, J.
17. I agree. By this application under; Articles 226 and 227 of the Constitution the petitioners, some of whom are electors of the Sitamarhi Municipality, ask for quashing of the election of the Commissioners of that Municipality mainly on the ground that two electoral rolls were used for the purpose of election, the polling for which was held on the 12th of June, 1960. The affidavits filed on behalf of respondents 25 to 27, who were the officers concerned with conducting the election, make it abundantly clear that the electoral roll of the Assembly constituency for Sitamarhi that was published on the 30th of October 1959, was used when nomination papers were filed and scrutinised and the revised electoral roll for the same assembly constituency which was published on the 9th of May 1960 was used for the polling held in that election on the I2th June 1960.
18. Section 15 of the Bihar and Orissa Municipal Act, 1922, authorises the Government to make rules prescribing the manner of the registration of voters at elections of Municipal Commissioners and section 19 also gives them the power to make rules as they may think fit to regulate and determine, among other things, the mode of holding elections. In exercise of those powers the Bihar Municipal Elections and the Election Petitions Rules, 1953, were framed. Under rule 4 of those rules it was provided 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. In a note attached to that rule it was provided that where an electoral roll of the Assembly constituency, which is deemed suitable to be the electoral roll for the purpose of the municipal election, does not contain the name of any person entitled to be registered in the electoral roll or contains any erroneous or defective entry, the person concerned may, in accordance with the provisions of sections 22 and 23 of the Representation of the People Act, 1950, get his name included and other corrections made in that roll till the date on which a poll in respect of the municipal election is to be taken. The electoral roll of the Sitamarhi Assembly Constituency was deemed, in the present case, to be the electoral roll for the municipal election, and such electoral roll which was for the time being in force, when the notification under Rule 7 was published by the District Magistrate of Muzaffarpur on the 4th of February 1960, in connection with this election, was the one which had been published in accordance with the Representation of the People Act, 1950, and the rules framed thereunder on the 30th of October 1959. The candidates filed their nomination papers on the basis of that electoral roll also on and before the 27th of April 1960 which, was the last date for receiving nomination. That electoral roll, according to rule 4 mentioned above, was to be deemed to be the electoral roll for the Sitamarhi Municipality for the purpose of election of Municipal Commissioners. There cannot be any doubt that the municipal election is one proceeding although it has different steps and stages, such as, filing of nomination, scrutiny of the same, withdrawal of candidature, polling and declaration of elected candidates.
The proceeding of election begins with the notification made by the District Magistrate concerned under Rule 7 and ends with the declaration of the result of the poll. When Rule 4 prescribes that the electoral roll for the connected Assembly constituency which is for the time being in force will be deemed as the electoral roll for the purpose of election of Municipal Commissioners, it cannot but mean that one and the same electoral roll of the Assembly constituency which was in force at the time of the commencement of the election is to be deemed to be the relevant electoral roll for the whole of the Municipal election. If it were not so, and if different electoral rolls could be brought to use at different stages of an election, it is bound to create not only confusion but also it would lead to absurd situations; for instance, an elector whose name was on the electoral roll at the time of nomination and who filed a valid nomination paper to be elected as a Commissioner may find his name deleted from a subsequent electoral roll that may have been prepared by way of revision as provided in the Representation of the People Act, 1950, aud the rules thereunder, and will, therefore, not be entitled to vote at the polling. If the revised roll, published subsequent to the date of nomination, is again deemed to be the electoral roll for the same municipal election, his nomination having been valid, he can as well be elected as a Commissioner although he would have ceased to be an elector, according to the revised roll, on the date of polling. Let us assume his name might have been removed from the revised electoial roll on a valid objection raised against him, according to the rules under the Representation of the People Act. The electoral roll is the very basis of an election, whether it is for the Municipality or for the Assembly and there must be certainty about it throughout the whole process of an election.
It is true that the Assembly electoral roll in force at the time of notification by the District Magistrate for a municipal election, which will be deemed to be the electoral roll for that municipal election, can be altered to some extent, even during the process of election, as contemplated under the note given under Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, That alteration is limited to the inclusion of the name of any person who may be entitled to be registered as an elector, or to file correction of any erroneous or defective entry in that roll. The manner in which this alteration can be effected has been indicated in that note with reference to Sections 22 and 23 of the Representation of the People Act, 1950. Subject to this alteration, the Assembly electoral roll in force at the time of the District Magistrate's notification under Rule 7 will continue to guide the whole of the municipal election till the polling is over. The argument that the words in "Rule 4, "the electoral roll ...... of an Assembly constituency...... for the time being in force" would include the revised assembly electoral roll that may be brought into force in accordance with the provisions of the Representation of the People Act and the rules made thereunder cannot be accepted as correct, because Rule 4 makes it clear that the Assembly electoral roll which is in force shall be deemed to be the electoral roll for the purpose of election, of the Municipal Commissioners. If more than one electoral roll for a particular Assembly constituency prepared or revised according to law were intended to be applicable to different stages of one municipal election, there was no need of legislating that the Assembly electoral roll for the time being in force is to be deemed to be the electoral roll for the municipal election. Under the Representation of the People Act, 1950, and the rules framed under that Act, provided for annual revision ot the Assembly electoral roll and with its final publication that comes into force immediately. So, at any point of time, as far as the Assembly electoral roll is concerned, there can be only one electoral roll. If that was intended to govern the different stages of a municipal election as and when those stages will be reached, there was no need of particularising an Assembly electoral roll in Rule 4 to be deemed as the electoral roll for a particular municipal election.
19. The other argument was to the effect that the revised Assembly electoral roll was in substance the Assembly electoral roll which was in force on the 4th of February 1960 when the District Magistrate made the notification under Rule 7, which had been published on the 30th of October 1959, with the alterations that could be made in that roll during the municipal election as provided in the note attached to Rule 4. This again is not correct. A revised Assembly electoral roll as contemplated under Section 21 (2) of the Representation of the People Act, 1950, read with Rules 25 and 23 of the rules made under that Act is a complete roll by itself and substitutes the previous one. The alterations as envisaged in the note to Rule 4 are only in respect of inclusion of new names and correction of erroneous and defective entries in the existing roll. It does not authorise deletion of any name from the existing roll for whatsoever reason. Though Section 22 of the Representation of the People Act, 1950, provides for deletion of names on more than one ground, reference to that section in the note to Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953 is restricted to the correction of erroneous and defective entries in the electoral roll which is also one other remedy provided under Section 22. The revised Assembly electoral roll published on the 9th of May 1960 was admittedly one in which several names appearing in the previous electoral roll were omitted. In that view, it cannot be said that the revised roll used for the polling of the Sitamarhi Municipal election on the 12th June 1960 was the Assembly electoral roll which was deemed under Rule 4 to be the electoral roll for the municipal election with the changes made according to the note attached to that rule. The polling which was the important limb of the municipal election under challenge was thus completely vitiated as it was based upon a different electoral roll. That would be enough to quash that election.
20. The application will, therefore, succeed and a writ quashing the election of the Commissioners of the Sitamarhi Municipality held on the notification of the District Magistrate dated the 4th of February, 1960, and by the polling on the 12th June 1960, shall issue.