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PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Parmeshwar Mahaseth
Versus
State Of Bihar
Miscellaneous Judicial Case No. 745 of 1956 ;
Decided On : MAY 10, 1957
ELECTION - Validity - Electoral Roll - Publication of Notification - Mandatory Provisions - Bihar and Orissa Municipal Act, 1922 - Bihar Municipal Elections and Election Petitions Rules, 1953.
Fact of the Case:
The petitioners challenged the validity of the elections of the Commissioners of the Darbhanga Municipality held on 6th and 7th September 1956, alleging violations of the Bihar and Orissa Municipal Act, 1922, and the Bihar Municipal Elections and Election Petitions Rules, 1953.
Finding of the Court:
The court found that the notification for the election was not published in the Bihar Gazette as required by Rule 7 of the Election Rules, and that the electoral rolls were not properly prepared and finalized, resulting in confusion and inconvenience for the electors.
Issues: 1. Whether the non-publication of the notification in the Bihar Gazette invalidated the election? 2. Whether the electoral rolls were properly prepared and finalized?
Ratio Decidendi: 1. The court held that the publication of the notification in the Bihar Gazette was a mandatory provision, and its non-compliance invalidated the entire election. The court reasoned that the publication of the notification was the foundation of the election, and its omission deprived electors of their right to vote. 2. The court held that the electoral rolls were not properly prepared and finalized, as they were not finalized until the date fixed for the taking of polls, and numerous changes and modifications were made until the last moment. The court held that such electoral rolls could not form the basis of a valid election.
Final Decision: The court allowed the writ petition, quashed the election, and issued a mandamus against the District Magistrate to hold fresh elections according to law. The court also issued an order restraining the elected Commissioners from calling the first meeting.
Kanhaiya Singh, J.
1. This is a writ petition under Article 226 of the Constitution and involves, inter alia, the question of validity or otherwise of the elections of the Commissioners of the Darbhanga Municipality held on the 6th and 7th September. 1956. Petitioners 1 to 5 are some of the electors residing within the said municipality and petitioners 6 to 10 are the candidates who were defeated at the said election.
2. The State of Bihar is Opposite Party 1. Opposite party 2 is the District Magistrate of Darbhanga and Opposite party 3 is Sri S. A. Haider, the Returning Officer. Opposite party 4 to 35 are the persons who were elected as Commissioners at the said ejection and Opposite party 36 is the Chairman of the Darbhanga Municipality. This application was presented on behalf of the petitioners on 26th September, 1956 for an appropriate writ quashing the election and an order restraining Opposite party I to 3 from publishing the result of the said election, opposite party 4 to 35 from acting as Commissioners and Opposite party 36 from calling the first meeting of the elected Commissioners and fur a mandamus against Opposite party 2 to hold an election of the Darbhanga Municipality in accordance with law
3. On 9th May, 1956, the District Magistrate of Darbhanga (Opposite party 2) in exercise of the powers conferred upon him under Rule 7 (1) of the Bihar Municipal Elections and Election Petitions Rules, 1953 (hereinafter referred to as the Election Rules) called upon the electors of all the wards of the Darohanga Municipality to elect Commissioners latest by 7th September, 1956. On 21st May, 1956, he appointed Sri S. A. Hairier. (Magistrate 1st Class, Darbhanga (Opposite party 3) as the Returning Officer. On 39th May, 1956. a programme of the general election was approved by the District Magistrate and was notified. This programme was adhered to in holding the election, With the approval of the District Magistrate the Returning Officer, fixed 6th and 7th September, 1956, for holding the elections and poll. Some of the candidates were returned unopposed. The polls were taken on the appointed dates, that is, on 6th and 7th September, 1956, and the result of The election was announced oh llth. 12th and 13th September, 1956, except for ward No. 13, 25 and 28, where the taking of the polls was postponed.
4. For the purposes of this election, the electoral roll of the Assembly constituency of the State of Bihar in respect of the areas comprised within the limits of the Darbhanga Municipality of 1955 was adopted. The petitioners contended that the elections were unlawful, because of the violation of the mandatory provisions of the Bihar and Orissa Municipal Act, 1922, and the Election Rules.
The grounds on which the petition is rested are that the electoral roll of the Assembly consti- tuency of the State of Bihar is not suitable for the purposes of elections of the Commissioners of the said Municipality, because for the purposes of the Assembly election the Darbhanga Municipality had been divided into nine constituency whereas for the purposes of election to the Municipality the town of Darbhanga had been divided into thirtytwo wards: that on notification under the proviso Rule 4 of the Election Rules was issued; that the adoption of the electoral roll of the Assembly constituency caused confusion and inconvenience inasmuch as voters of one ward were included into the electoral roll of another ward and some voters were wrongfully excluded from their wards, on account of which the electoral roll was frequently amended and corrected, which process continued up to 5th September, 1955; that the notification required by Rule 7 of the Election Rules" was not published in the Bihar Gazette; and that petitioners 1 to 5 were debarred from exercising their franchise, because they had no information of the election.
5. Cause has been shown on behalf of Opposite party 1 to 3. They alleged that the election was held perfectly in conson
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