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IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Calcutta Port Trust Union - Appellant
Vs.
Haldia Shore Ship And Transport Handling Workers Co-Operative Construction Society Ltd. And Another - Respondents
CRJ Appellate Side C.O. No. 291 of 2012
Decided On : 03-04-2013
ELECTION - Electoral Roll - Preparation - Inclusion of names - Objection - Hearing - Principles of natural justice - Violation - Effect - Electoral roll - Validity.
Fact of the Case:
The petitioners challenged the election held on the basis of the electoral roll prepared in pursuance of the order of the Registering Authority on the ground that their names were excluded from the final electoral roll without giving them an opportunity of being heard and that the order passed by the Registering Authority and the election held in pursuance thereof were ultra vires and illegal on various grounds.
Finding of the Court:
1. The impugned order at annex. G-2 must be struck down because it is ultra vires para. 12 of the Order. No attempt was made by the Statutory Authority to determine whether the Petitioners did in fact reside outside Ward No. 17 as alleged in the objection and did not even call for the other records of the Municipality or of the State Government which might throw light upon the question. 2. The impugned order is ultra vires also because of the contravention of para. 9(2) of the Order which says— When objection is made to the inclusion in the preliminary electoral roll of the name of any persons recorded therein, the Registering Authority shall serve on such persons a notice stating the grounds of such objection and specifying the place and the time fixed for the hearing of such objection and notifying him that he may produce...such evidence as he may wish to adduce. 3. The third argument of Mr. Roy is that the Order does not confer upon the Registering Authority any power to delegate his duty of hearing objections to any other persons and that, accordingly, the inquiry by Respondent No. 2, the report of the latter and the impugned order of the Registering Authority, solely founded on that report, are ultra vires. 4. The fourth argument of Mr. Roy is that the Registering Authority had a quasi-judicial obligation in the matter of hearing the objection and that, he having acted in contravention to the principles of natural justice, his impugned decision is void.
Issues: 1. Whether the provision in the Order for service by post, in any case, is ultra vires Sections 510 and 511 of the Act. 2. Whether the impugned order of the Registering Authority, by which the names of the Petitioners were omitted from the final roll, is ultra vires the terms of the Order itself. 3. Whether the Order confers upon the Registering Authority any power to delegate his duty of hearing objections to any other persons. 4. Whether the Registering Authority had a quasi-judicial obligation in the matter of hearing the objection and that, he having acted in contravention to the principles of natural justice, his impugned decision is void.
Ratio Decidendi: 1. The provision in the Order for service by post, in any case, is ultra vires Sections 510 and 511 of the Act. 2. The impugned order of the Registering Authority, by which the names of the Petitioners were omitted from the final roll, is ultra vires the terms of the Order itself. 3. The Order does not confer upon the Registering Authority any power to delegate his duty of hearing objections to any other persons. 4. The Registering Authority had a quasi-judicial obligation in the matter of hearing the objection and that, he having acted in contravention to the principles of natural justice, his impugned decision is void.
Final Decision: The election which was allowed to be held by permission of the Court while issuing the Rule nisi on condition that the results thereof should not be published, must be quashed with respect to Ward No. 17. The impugned order at annex. G-2 of the petition should also be quashed. Respondents 1 and 6 shall, however, be at liberty to hold a fresh election of Ward No. 17 after the preparation of a fresh final electoral roll according to law. In case Respondent No. 4 pursues his objections against the Petitioners, Respondent No. 1 shall start with a fresh service of the objections upon the Petitioners, in accordance with the provisions of the Act, and then hear and determine the objections according to law, as explained herein.
D. Basu, J.
This Rule is directed against the election held on February 26, 1964, of the Commissioners of the Siliguri Municipality, on the basis of a final electoral roll prepared in pursuance of the decision contained in the order of the Registering Authority dated October 21, 1960, which is at annex. G-2 of the petition.
2. The Petitioners, who were originally five in number, brought this petition under Order 1, Rule 8 of the CPC alleging that 240 other persons were affected by the impugned proceedings and in similar circumstances. Subsequently, some of these persons have come upon the record as added Petitioners so that the number of Petitioners at the hearing has gone up to 24. The Petitioners' case is that they are all residents of Ward No. 17 of the Municipality--in the area called Milanpalli--and are thus entitled to be enrolled in the electoral roll of that Ward. In fact, their names were duly included in the preliminary electoral roll which was published sometime in September, 1963, under the West Bengal Commissioners of Municipalities (First General Election) Order, 1963. But the Petitioners' names were excluded from the final electoral roll published on November 12, 1963. This led the Petitioners to inquiry and the Petitioner No. 1 filed a petition to the Registering Authority, namely, the Sub-divisional Officer (Respondent No. 1), for copies of the proceedings which was refused on February 4, 1964, on the ground that certified copies were not available from his office, as the matter related to Municipal election. But, subsequently, the copies were supplied to the Petitioner and from this document it was discovered by the Petitioner that one Binoy Kr. Mukherjee (Respondent No. 4) filed an objection on October 3, 1963, against the inclusion of 222 names in the preliminary electoral roll, on the ground that these persons did not reside anywhere within the area of Ward No. 17, and that in pursuance of this objection Respondent No. 2 (K.B. Bhattacharya) issued notices on October 11, 1963, to the Petitioners to appear before him on October 18, 1963, for a hearing of the objection raised by Respondent No. 4, who was a sitting Commissioner of the Ward and a candidate for the ensuing Municipal election. From the copies it also appeared to the Petitioners that the notices issued by the Registering. Authority were directed not to their respective residences at Milanpalli but to different other places like Khalpara, Gatiganagar and the like where the Petitioners did not actually reside. In the circumstances, the letters which were purported to have been sent under certificate of posting were not received by the Petitioners. The Petitioners' case is that they were always and have been residing at Milanpalli within Ward No. 17 and that some of them own immovable property situated at that place, and that the sending of the notices addressed to the Petitioners at wrong addresses was done by the Municipal Authorities to serve the interest of Respondent No. 4. As a result of non-service of these letters the Petitioners could not appear before Respondent No. 2, K.B. Bhattacharya, an officer subordinate to the Registering Authority, on October 18, as directed in the notices. In view of their absence, Respondent No. 2 made the report (at annex. G) in the following words:
As far as s1s. 1 to 54, 56 to 57, 59 to 70 and 72 to 221, the persons, the inclusion of whose names in Ward No. 17 were objected to, did not appear before me nor did they represent their case in any other way, though notice under certificate of posting was issued to them. So an ex parte decision may be taken and their names may be deleted from the electoral roll.
On the strength of this report the Registering Authority made the following order on October 21:
Seen Commissioners of Municipalities Order (1963). The parties to whom notices were served as per serial at C above did not attend hearing though called so to do. As such, their cases are decided ex parte. Ob
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