Nitya Nand Kul Bhushan Lal Vs. Khalil Ahmed Ali Ahmad and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....ordera.n. grover, j. 1. the petitioner is a resident of pataudi town and is registered as a voter in the electoral roll of the municipal committee of that town. by the present petition under article 226 of the constitution, the election of respondents 1 to 8 as members of the municipal committee at the elections held on 17th october 1959 has been challenged.2. by a notification dated 1st/10th august 1959 which appeared in the punjab government gazette (extraordinary) of 12th august, 1959, the punjab government divided the pataudi municipality into seven wards from which eight members had to be elected. on 4th august 1959, the director of elections (local bodies) wrote a letter to the deputy commissioner, gurgaon, directing him to start the preparation of the electoral rolls for the.....

Judgment:
ORDER

A.N. Grover, J.

1. The petitioner is a resident of Pataudi town and is registered as a voter in the electoral roll of the Municipal Committee of that town. By the present petition under Article 226 of the Constitution, the election of respondents 1 to 8 as members of the Municipal Committee at the elections held on 17th October 1959 has been challenged.

2. By a notification dated 1st/10th August 1959 which appeared in the Punjab Government Gazette (Extraordinary) of 12th August, 1959, the Punjab Government divided the Pataudi Municipality into seven wards from which eight members had to be elected. On 4th August 1959, the Director of Elections (Local Bodies) wrote a letter to the Deputy Commissioner, Gurgaon, directing him to start the preparation of the electoral rolls for the ensuing Municipal elections of all the Municipal Committees in his district by rearranging, according to new wards, the Punjab Legislative Assembly Electoral Rolls, 1958, relating to the areas of each Municipality. This letter was forwarded by the Deputy Commissioner to the Administrator, Municipal Committee, Pataudi, by means of an endorsement made on 7th August 1959.

It was stated in the letter (Annexure 'B') that a definite detailed programme with regard to the election proceedings which were to be held near about 20th August 1959 would be sent after some days but it was necessary that the preparation should be taken up in right earnest at all levels. One of the preliminary steps was to have the electoral rolls which were to form the basis, ready. Under rule 8 of the Punjab Municipal Election Rules, 1952, the electoral rolls of the Municipal Committees have to be the finally published electoral rolls for the State Legislative Assembly in relation to their constituencies operating on the date fixed by the Deputy 'Commissioner for the submission of nomination papers under Rule 10, It was indicated in the letter that the State Government contemplated amending Rule 8 suitably so as to specify therein that the

electoral rolls to be used for municipal elections shall be the electoral rolls prepared ward-wise and published by the Deputy Commissioner. Till amendment to that effect was made in the Municipal Election Rules, the Assembly electoral rolls of 1958 were to be arranged according to the finally delimited proposed wards.

The Deputy Commissioner, Gurgaon, sent to the Administrator of the Municipal Committee, Pataudi, vide his endorsement No. 3578/LB dated 20th August 1959, a copy of another memorandum No. DE-59/34 from the Director of Elections to all the Deputy Commissioners in the State containing instructions regarding preliminary publication, disposal of claims and objections and final publication of municipal rolls to be used for municipal elections (Annexure 'C'). From these instructions it was clear that the preliminary rolls were to be published on 21st August 1959 for the purpose of inviting claims and objections from the residents and 25th August 1959 was to be fixed as the last date for filing of the claims and objections.

These claims and objections, if any, were to be disposed of by the revising authorities by the 27th August 1959. The rolls were then to be finally published on 29th August 1959. Meanwhile under proviso to Rule 8 of the Municipal Election Rules, 1952, the Punjab Government had directed by

means of letter No. 9158-LB-3L-59/29550 dated 19th August 1959 that the electoral rolls for the Punjab Legislative Assembly, 1958, should not be used for

the purpose of the ensuing municipal elections in the State for which fresh rolls were to be prepared in the manner specified in Rules 8A to 8K of the Municipal Election Rules, 1952, as amended up to date. Rules 8A and 8D of the rules, as amended are as follows:

'8A. Preparation of rolls. (1) When a direction is given by the State Government under the proviso to Rule 8, the Deputy Commissioner shall, under the superintendence of the Director of Elections (Local Bodies), cause to be prepared a roll for each constituency of the Municipality in accordance with these rules

(2) The roll shall be prepared in such form and in such language or languages as the State Government or the Director of Elections (Local Bodies) may direct.

8D. Conditions of registration. (1) Subject to the foregoing provisions, every person who --

(a) is not less than 21 years of age on the qualifying date, and

(b) is ordinarily resident in a constituency, shall be entitled to be registered in the roll for that constituency.

(2) A person shall not be deemed to be ordinarily resident in a constituency on the ground that he merely owns, or is in possession of, a dwelling-house therein. A person absenting himself temporarily from his ordinary residence shall not by reason thereof cease to be ordinarily resident therein.

Explanation. 'Qualifying date' shall mean the date on which the preparation of rolls commences in the constituency concerned.'

3. The main and principal challenge of the petitioner to the elections is that the rolls on the basis of which the elections were finally held had not been prepared in accordance with the rules, as amended, The qualifying date for the purpose of the Punjab Legislative Assembly electoral rolls, 1958, was 1st March 1958 and those rolls had been prepared with that date being taken as the qualifying date. According to the explanation in Rule 8D mentioned above, the qualifying date was to mean the date on which the preparation of the rolls commences in the constituency concerned. It is almost common ground that accordingly the qualifying date for the purpose of preparing the electoral rolls of the Pataudi Municipal Committee would have been 20th August, 1959.

This meant that those persons who attained the age of 21 between the dates 21st March 1958 and 20th August 1959 and who were ordinarily residents within the area of Pataudi town between those dates were entitled to be included in the rolls on the basis of which the elections were to be held. It is clear from the return filed on behalf of respondents 9 to 12 that the draft rolls were published on 21st August 1959 and copies of those rolls were pasted on the notice board of the Deputy Commissioner's Court etc. It is further asserted that the final publication of those rolls was made on 29th August 1959 after claims and objections had been invited. According to the petitioner, it was a complete impossibility to have prepared the entire rolls by including the names according to the rules, as amended, the qualifying date being 20th August 1959 because that would have required a house-to-house survey which was never done.

In paragraph 15 of the return of respondents 9 to 12, it is stated that the qualifying date was from 7th August 1959 to 20th August 1959. It is not comprehensible how the qualifying date according to the explanation appearing in Rule 8D could commence from 7th August 1959 and that position was not pressed before me by the learned counsel for the respondents. . The learned counsel for the petitioner has placed before me the printed copies of the rolls which were prepared on the basis of the Punjab Legislative Assembly electoral rolls of 1958 and the tolls prepared after the rules had been amended, the effect of which was to make 20th August 1959 as the qualifying date. A comparison of the various entries in the electoral rolls of the Assembly and those of the Municipal Committee shows a strikingly revealing state of affairs and is tell-tale.

The very first person in the Assembly roll which is marked as 'C/1' is Ram Saran in ward No. 1. His age is shown to be 50 years. That would be his age apparently in the year 1956 as is stated at the top of page 1. The same person's name appears in the list of electoral rolls, the preliminary publication of which took place on 21st August 1959, in ward No. 1 (Annexure 'C/2'). There also his age is shown to be 50 years. The same is the case of Gowardjhan Dass who is shown to be 55 years old in the electoral rolls of the Assembly as well as in the electoral rolls of the Municipal Committee. As a matter of fact, the learned counsel for the petitioner invited the learned counsel for the respondents to point out any change in the two rolls with the exception of a very few entries, the change in which, according to him, may have been due to mistake or inadvertence but no such change was shown.

A comparison of these two rolls can possibly leave no doubt that what was done by the Municipal authorities in the matter of publication of the preliminary rolls was that a verbatim copy of the Punjab Legislative Assembly electoral rolls which had been prepared and arranged ward-wise in accordance with the instructions sent on 4th August 1959 by the Director of Elections was published as the preliminary rolls on 21st August 1959 without making any changes although the qualifying date in the light of the explanation appearing in Rule 8D had become 20th August 1959 instead of 21st March 1958. Even otherwise it is not possible to believe that as soon as the fresh instructions were received on 20th August 1959, all the necessary enquiries about the inclusion of those persons who had become eligible to be included in the list, the qualifying date having become 20th August 1959, were made, and the completed preliminary rolls prepared in accordance with the rules, as amended, were printed and published overnight.

That is a feat which it is not possible to expect from Municipal authorities in this country to perform, whatever the degree of promptness and speed which may be imagined to have been imported. I am constrained to hold that the preliminary roll that was published on 21st August 1959 was not prepared in compliance with the rules, as amended, and thus the entire basis of the electoral rolls remained grossly defective and illegal.

4. There have been a number of decisions by this Court with regard to the municipal elections that were held of the different municipalities on 17th October 1959 in the Punjab State. In Ramesh Chand v. Purna Nand, Civil Writ No. 1244 of 1959, decided by Tek Chand and Shamsher Bahadur, J. on 27-5-1960 (Punj.), elections of the Municipality at Sangrur had been challenged on identical grounds, the material dates being almost identically the same. Tek Chand, J. after discussing the matter at lengt observed that under Rule 8A, preparation of rolls for each Municipal constituency had to begin when a direction in that behalf was given by the State Government and that this reference to the time of commencement of preparation was of great significance.

On the assumption that work for preparation of rolls was taken in hand immediately on receipt of the Government letter on 20th August 1959, all persons who had reached the age of 21 years on that date were qualified to exercise their right of vote at the forthcoming election. The learned Judge proceeded on to observe that if, under the preliminary rolls, the names of such persons who had qualified themselves for exercising voting rights were to be excluded, there would be left a serious flaw in the roll as it would shut out newly qualified persons from taking part in electoral rolls. In other words, it would be tantamount to disenfranchising otherwise qualified persons by omitting their names from the electoral rolls. The learned Judge came to the conclusion that the current Assembly rolls, even after they had been arranged ward-wise, were imperfect, as they were not the rolls prepared in accordance with Rule 8A and bearing in mind the provisions of Rule 8D as to the qualifying date.

The obligation which had been cast upon the authorities holding the election, therefore, was not discharged, and the imperfect electoral rolls acquired no validity and the elections could be successfully challenged. Shamsher Bahadur, J., although agreeing with the result at which Tek Chand, J. had arrived, preferred to give his own reasons in its support and wished to emphasise that he had not been persuaded to depart from the reasoning and the conclusions of the judgment delivered in Jagat Ram v. Punjab State, Civil Writ No. 1216 of 1959, on 7-3-1960 (Punj.), decided by himself and Tek Chand, J. He considered that the facts of the case which was being decided by the Bench of which he was a member were not dissimilar to those in Civil Writ No. 1176 of 1959 (Punj.), in which the election to Kaithal Municipal Committee was set aside, the ground being that the preliminary publication of the rolls was done on 21st August 1959 whereas the letter of 19th August 1959 with regard to the amendment of rules etc., had been received on 22nd August 1959.

It does not appear from the judgment of Tek Chand, J. that that letter was received on 22nd August 1959, but even if it be so, the principle appears to be quite clear and I shall presently advert to it after discussion of other decided cases. The learned counsel for the respondents have relied on the Bench decision in Civil Writ No. 1170 of 1959 which is reported as Lajpat Rai v. Khilari Ram, 1960-62 Punj LR 377, to which reference was also made by Shamsher Bahadur, J. Even in that case Dua, J. who delivered the main judgment expressed the following view :

'I would be inclined to agree that if the respondents did not care to take reasonably effective steps under the rules to cause to be prepared a roll for each constituency, and if merely the Assembly roll prepared with reference to 31st of March 1958 as the qualifying date had been copied out verbatim and published under Rule 8E, then such a roll may not be considered to have been prepared under and in accordance with the above rules. However wide the discretion left to the authorities in framing the electoral roll, they are, in my view, bound by the overall object of the statutory provisions which circumscribe their discretion, and if from the point of view of the real object and scope of the rules they have exercised their power so unreasonably or capriciously as not to carry out the true object of the rules, then the roll might well be struck down as prepared in violation of and not under the rules.

On the record of this case, however, I find that the petitioners' submission on facts has not been substantiated. The reply shows that the fresh electoral roll was got prepared under the amended rules, though on the basis of the Punjab Assembly electoral roll, which was presumably used as ready data; but it is emphatically denied that it was a verbatim reproduction of the latter.'

But the petition in that case was dismissed on the ground that the petitioners' submission on facts had not been substantiated. Dua, J. referred to the reply which showed that the fresh electoral roll was got prepared under the amended rules, though on the basis of the Punjab Assembly electoral roll, which was presumably used as ready data; but it was emphatically denied that it was a verbatim reproduction of the latter. The learned Judge did observe that no reasonable explanation had been offered as to why it was considered so urgently imperative to hold the election on such short notice by rushing through the preparation of the roll at the cost of a more satisfactory method of complying with all the rules for more fully effectuating their real purpose. But it was found that the roll had been substantially revised and the fact that the petitioners did not care to approach this Court for appropriate directions before the elections also weighed with the Bench.

No hard and fast rule has been, therefore, laid down in that decision and it appears to have been based on its peculiar facts. Another Bench consisting of Bishan Narain and Dua, JJ. in Amir Chand v. Dhan Raj, 1960-62 PLR 679, held that the electoral rolls on the basis of which the elections to Municipal Committee, Narwana, had been held, had not been prepared in accordance with the amended Rules 8A to 8K. In that case also, the facts were very similar to the instant case and the preliminary rolls had been published on 21st August 1959 for inviting claims and objections in similar circumstances. This Bench clearly held that if elections had taken place on the basis of a materially defective or an illegal or improper electoral roll, then a petition for a writ of quo warranto or other suitable writ did lie and the elections were struck down as invalid and of no binding effect.

Neither did the Assistant Advocate-General submit nor did Dua, J. himself consider that the decision given in Lajpat Rai's case, 1960-62 Punj LR 377, stood in the way of any relief being granted, once a conclusion had been reached that the preliminary rolls had not been prepared in accordance with the amended Rules 8A to 8K nor was the reason which was adopted by Shamsher Bahadur, J. in the Bench decision referred to before considered and made the basis of the decision by Dua, J, who had delivered the previous judgment in Lajpat Rai's case, 1960-62 Pun LR 377. In Kuldip Singh v. State of Punjab, Civil Writ No. 1191 of 1959, decided by Gosain, J. on 28-7-1960 (Punj.), the electoral rolls had been prepared in circumstances similar to the present case and the election was ordered to be set aside. The following observations of Gosain, J. may be referred tb with advantage :

'Now, if rolls are prepared under the rules, only those persons will be recorded as voters who were qualified to vote as on the date when the preparation of the rolls commenced in each of the constituencies. If the Assembly electoral rolls were taken into consideration, evidently the voters who were qualified to vote in the Assembly election of 1958 will continue to be voters for the municipal elections held on the 17th, October, 1959. Some persons who were not of age then may have now become of age. Some of the persons who were entered there may have died and some of the persons may have left the constituency and gone away and some may not now be eligible to vote. Obviously, the Assembly electoral rolls cannot be substituted for the rolls required to be prepared for each Committee under Rules 8A to 8K. The elections in these circumstances cannot possibly be upheld'.

In Chief Commissioner of Ajmer v. Radhey Shyam Dani, (S) AIR 1957 SC 304, an election had been held on the basis of the electoral roll of the Ajmer Municipal Committee which was wholly defective. A petition under Article 226 was made in the Court of the Judicial Commissioner for a mandamus against the appellant to reconstitute the Ajme? Municipal Committee by a properly made and published notification and for an order restraining the District Magistrate from holding the elections and poll to the Aimer Municipal Committee as notified.

The District Magistrate was directed by the Judicial Commissioner to refrain from holding the elections. Their Lordships observed that by treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment.

It was further observed that it was of the essence of the elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it was necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize 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 that was done, the entire Obligation cast upon the authorities holding the elections was not discharged and the elections held on such im-perfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. The appeal against the decision of the Judicial Commissioner was consequently dismissed.

5. The learned counsel for the respondents submitted that the entire election cannot be set aside and at the most the election from the ward to which the petitioner belongs can be set aside. Reliance was placed on my decision in Lekh Raj v. Cantonment Board, Jullundur Cantt., 1958-60 Punj LR 66 : (AIR 1958 Punj 356), and it is pointed out that elections in all the wards there were not ordered to be set aside but the petition was granted only with regard to the election of ward No. V.

In that case the fads were different and at page 77 (of Pun LR) : (at p. 361 of AIR), it is mentioned by me that the facts alleged with regard to the lists of the wards other than ward No. V were more or less contested. No correspondence or material had been placed with regard to the electoral rolls of those wards as had been done in case of ward No. V, with regard to which, apart from the mistake of the qualifying date, other irregularities had been found to exist. It was in these circumstances that I considered that the electoral rolls of the other wards could not be held in be irregular and improper or illegal on the material placed before me.

Next, reference was made to Konjiti Venkateswarlu v. District Panchayat Officer, AIR 1958 Andh Pra 252. After the amendment of Section 21 of the Madras Village Panchayats Act, the District Panchayat Officer had allotted to the first ward the extra seat necessitated by the President of a panchayat also having to be a member. The result was that four members of the panchayat had been elected by 813 voters, 2 members by 442 voters and one member by 204 voters. The petitioner who belonged to the first ward challenged the validity of the whole election on the ground that there was a violation of Article 14 of the Constitution in that the voters in one of the wards who elected four members obtained special advantage over the voters in the other two wards who elected the other three members between them.

It was held that only the voters in the second and the third wards could have a just cause for complaint. The petitioner who belonged to the first ward was not a person aggrieved and the petition was dismissed. The facts being wholly different in that case, this authority can be of no assistance to the respondents. The contention that has been raised is without force because once it is held that the electoral roll was defective, the entire election becomes illegal and invalid and even one voter can come forward and complain about it and once the Court is satisfied that that is so, it will not decline to make an order which will have the effect of setting aside the entire election. A learned Single Judge of this Court in Lachhman Singh Chuhar Singh v. State of Punjab, AIR 1959 Punj 522, also entertained the same view.

6. The learned counsel for the respondents then relied on Miss Avi J. Cama v. Banwarilal, ILR 1953 Nag 267 : (AIR 1953 Nag 81), for the proposi-tion that a writ of quo warranto is not issued as a matter of course and the Court may decline to grant it if there is an alternative remedy equally appropriate and effective, and before granting such a writ, it is necessary to see that the relator is a fit person to be entrusted with the writ. He must not be disqualified by having acquiesced or concurred in the, act which he comes to complain of or in similar acts at former elections.

In the first place, in the present case it has not been shown that elections can be set aside on the ground of defective roll by means of an election petition, but even if that can be made a ground for getting the elections set aside, our Court has interfered and, with respect, rightly so. A Division Bench of this Court in 1960-62 Punj LR 679, expressed the view that a writ of quo warranto or other suitable writ, order or direction would lie in such circumstances. According to the observations in G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330, in proceedings for a writ of quo warranto the applicant does not seek to enforce any right of his as such, nor does he complain of any non-performance of duty towards him.

What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from office. The legality of an appointment to high office can, therefore, be challenged by any citizen. Bose,, J. in Biman Chandra v. Governor, West Bengal, AIR 1952 Cal. 799, expressed a similar view and considered it incorrect to say that unless a person's personal right was infringed or unless he had suffered a legal injury, he could not maintain an application for quo warranto. The leading English case on the point is The King v. Speyer, (1916) 1 KB 595, where an information in the nature of a quo warranto was held to lie at the instance of a private relator against a member of the Privy Council whose appointment was alleged to be invalid. Lord Reading, C. J. stated the test as deducible from the review of the case law by Tindal, C. J. in Reg. v. Hampden, (1865) 6 B. and Section 923 at p. 931, in the following words :

'The test to be applied is whether there has been usurpation of an office of a public nature and an office substantive in character, that is, an office independent in title.'

It is futile to contend that such a writ will not He against a municipal councillor who holds a public office of considerable importance.

7. In the result, this petition must succeed and an appropriate writ is directed to be issued to the effect that the elections held on 17th October 1959 to the Pataudi Municipality were wholly illegal and void and should be treated as invalid and ineffective, In the circumstances, the parties are left to bear their own costs.