The Councillor for the special constituency of registered trade unions under Section 8 (1) (b) (ii) of the Patna Municipal Corporation Act, 1952, is to be elected by the registered trade unions in their corporate capacity and not by the individual members of the trade unions.

1. In this case the petitioner has moved this Court for a writ under Article 226, Constitution of India directing the respondents to prepare a correct electoral roll for the special constituency of registered trade unions in the town of Patha in accordance with the provisions embodied in Section 8 (1) (b) (ii) of the Patna Municipal Corporation Act (Bihar Act 13 of 1952). The petitioner has also asked for a writ restraining the respondents from holding election in that special constituency until the electoral roll is prepared in accordance with the provisions of the statute. Cause has been shown by the Advocate General on behalf of the State of Bihar and other respondents to whom notice had been given.

2. Section 8 of the Act enacts that the Corporation shall consist of fifty-two Councillors including three Councillors elected severally by the special constituencies, namely, (i) one Councillor to be elected by the Bihar Chamber of Commerce; (ii) one Councillor to be elected by the registered trade unions having their registered offices at Patna; and (iii) one Councillor to be elected by the registered graduates of the Patna University having their normal place of residence at Patna. It appears that under the rule making power conferred under Section 540 of the Act the State Government have framed rules called the Patna. Municipal Corporation Election (Special Constituencies) Rules, 1953, These rules were published on 27-7-1953 in the Gazette notification No. M/R2--402/52--362--L/S.G. Rule 5 states that:

"(1) A person shall be deemed to be qualified to be enrolled on the electoral roll of the Registered Trade Unions Constituency, if and only if, he-- (a) is, and has for at least twelve months preceding the first day of March of the year in which the electoral roll is prepared a member, honorary member or official of a Registered Trade Union; and

(b) is not, in the case of an ordinary member of the union, in arrear with his subscription thereto.

(2) A person shall not be qualified to be included in the electoral roll if he is employed wholly or mainly in a clerical, supervisory, recruiting or administrative capacity of the Registered Trade Union."

Rule 8 (2) provides: "The Registration Officer shall publish in two Hindi newspapers published at Patna a notice calling upon all registered Trade Unions having their registered office at Patna to submit within such period and in such form as may be specified by him in this behalf a list of their members entitled to be enrolled on the electoral roll for the Registered Trade Unions Constituency with such evidence as may be necessary to prove that the unions concerned are qualified to participate in the election from the said constituency."

The petitioner is the President of the Patna Electric Supply Workers Union and four other Trade Unions with their registered offices at Patna. The petitioner asserts that Rules 5 and 3 (2) are illegal and ultra vires in so far they provide for preparation of electoral roll for members of registered trade unions and not for trade unions in the corporate capacity. It is alleged in the affidavit that the Administrator sent notices to various trade unions including the trade unions of which the petitioner is the President calling upon them to furnish a list of the members of their respective unions. The petitioner sent a representation to the Administrator of Patna Municipal Corporation and also the Government of Bihar maintaining that the rules were illegal. This representation was rejected and pn 28-10-1953, the District Magistrate of Patna acting as Registration Officer sent a notice to the various unions forwarding a list of voters entitled to vote in the constituency and pointed out that the members of the unions of which the petitioner is the President have not got themselves enrolled. In these circumstances the petitioner has moved this Court for a writ in the nature of mandamus to direct the respondents to prepare a correct electoral roll