Abbas Ali vs The Commissioners of Titaghar Municipality

T.N. Mookerjee, J.—This Rule was obtained by tie Petitioner Abbas Ali who was recorded as voter No. 223 of Ward No. VI of the Titagarh Municipality for the coming municipal election and he was recorded with his address as No. 11, Station Road, South, the relevant qualification for his franchise being educational qualification, as mentioned in Section 23, Sub-section (2), Sub-clause (c) of the Bengal Municipal Act. The preliminary Electoral Rolls were published on September 30, 1959, and the final publication was on November 28, 1959.

On December 14, 1959, an appeal was filed against the said entry of Abbas Ali''s name as a voter in respect of Ward No. VI of the above Municipality, by one Chhatu Jaswara, claiming to be a voter in the said ward and alleging, inter alia, that the said Abbas Ali was not a resident of No. 11, Station Road, South, and accordingly, his name could not and should not have been recorded as it had been done in the preliminary and final Electoral Rolls.

To this appeal, Abbas Ali and the Commissioners of the Titagarh Municipality were parties-Respondents and the appeal was, eventually, heard on December 23, 1959, by a Magistrate, First Class, Alipore, to whom the appeal was transferred by the learned District Magistrate, 2A-Parganas. The appeal was allowed and "the name of Abbas Ali as a voter in ward No. VI of "Titagarh Municipality being a resident of No. 11, Station Road "South", was directed to be "deleted". It is against this order that the present Rule was obtained by the Petitioner Abbas Ali.

There is no dispute before us that the Petitioner Abbas Ali is a resident of the same ward and on the same Station Road, South, though not in holding No. 11 but in holding No. 15. It was the Municipality''s case before the appellate authority that Abbas Ali was really a resident of No. 15, Station Road, South, and he was intended to be recorded as a voter from that holding under Rule 3(2) of the Election Rules under the Bengal Municipal Act, his educational and other requisite qualifications for the purpose of his franchise u/s 23 of the Act not being disputed at any stage. It was the further case of the Municipality that the entry in the voters'' list of Holding No. 11 in place of the actual residence of Abbas Ali, namely, Holding No. 15 was due to an accidental printing mistake and the Municipality prayed, before the appellate authority, for rectification of the same. The learned appellate officer, however, was of the opinion that, as no appeal had been filed either by Abbas Ali, or by the Municipality in respect of the said admitted wrong entry, the rectification, prayed for, could not be allowed by him, and the only way, open to him, was to strike out the name of Abbas Ali from the list of voters. That was also the Appellant Chhatu Jaswara''s case before the said appellate authority and in effect, that case was accepted. In our opinion, the learned Magistrate (who was the appellate authority concerned) has misconceived the entire position. It is true that there was no appeal by either Abbas Ali or the Municipality; but the appeal of Chhatu Jaswara before him was because of the said Appellant''s grievance that Abbas Ali was not a resident of No. 11, Station Road, South, but of No. 15, and, accordingly his name should not have been entered as a voter from No. 11, Station Road, South. That grievance could have been easily and sufficiently met by the learned appellate authority, by merely directing that No. 11, in the voters'' list, in the relevant place against Abbas Ali''s name, should be changed to No. 15 on the admitted facts of the case and the learned appellate officer had, in our opinion ample jurisdiction to rectify the said mistake in the said manner, under the appeal provision, Section 529A of the Act, even in the appeal of Chhatu Jaswara. The said provision was wide enough for the purpose and as by the aforesaid rectification, the real grievance, and, indeed, the only relevant grievance which the Appellant Chhatu Jaswara could have under the law, would have been effectively met, nothing more was necessary and there was no justification for any greater or more drastic action, and, accordingly, in our opinion, the learned appellate officer went beyond the requirements of the case and the requirements of law in directing deletion of Abbas Ali''s name from the voters'' list. The matter of franchise is, indeed, a serious matter. It is a valuable right at least to the holder of the franchise. The authorities should be careful not to deprive a particular person of his franchise merely because of a printing mistake-an accidental printing mistake-of the municipal authorities. That is all that has happened in this case and there can be no justification, therefore, for depriving Abbas Ali of his franchise by the deletion of his name from the Electoral Roll.

We would, accordingly, make this Rule absolute by directing that the order of the learned appellate officer, directing deletion of Abbas Ali''s name from the voters'' list, be set aside and only the mention of No. 11 against his name as the relevant number of the holding be corrected by replacing it by the admitted real number of Abbas Ali''s residence, namely, No. 15.

The Rule is made absolute as above.

Although the Rule was opposed on behalf of the opposite party No. 2 Chhatu Jaswara and the learned Appellate Officer''s order was sought to be supported, we would not, in the circumstances of this case (which arose out of an accidental mistake of the Municipal authorities) make any order for costs in this Rule.

Niyogi, J.

I agree.