Nikhil Ranjan Chowdhury and Others vs State of West Bengal and Others

Sinha, J.—There are five petitioners before me, in this application. According to the petitioners, they were originally residents of East Bengal (East Pakistan) and they permanently migrated to the Indian Union in the year 1950, and settled in the District of 24-Parganas. It is not denied that they are occupying lands without the consent of the owners thereof. The petitioners allege that they are entitled to be declared as persons entitled to vote at the election of members of the Haltoo Union Board, situated in the District of 24-Parganas. It appears that the programme of the last General Election was drawn up in November, 1953, and the date of election published four months in advance, as required by the Rules. After publication of the notice, a number of refugees residing in forcibly occupied areas in the Haltoo Union including the petitioners, claimed to be enrolled as voters, and they preferred objections to the Preliminary Roll of Voters. It is said that the objections were duly enquired into as required by the Rules and some of the objections were allowed. The objections made by the petitioners before me, have been rejected. It is stated that the petitioners did not produce any documentary evidence in respect of their qualifications which would entitle them to be enrolled as voters. As will presently appear, the petitioners are not in fact entitled to be enrolled as voters. The qualifications which would entitle a person to vote at an election of members of a Union Board or to become a member thereof are set out in section 7 of the Bengal Village Self-Government Act, 1919 (hereinafter referred to as the "Act"). According to this section, one of the pre-requisites is that a person should have a "place of residence" within the Union. Section 10 of the Act (read with the necessary Adaptation Order) lays down that no person shall be qualified to vote at an election or to be a candidate for election as a member, who is not a citizen of India.

The question is whether the petitioners satisfy these two essential pre-requisites. It is argued on behalf of the petitioners that if a person in fact resides within the relevant area, that is quite enough. On the other hand, it is argued on behalf of the opposite parties that "place of residence" means, firstly, residence that is lawful and, secondly, under some colour of title. In my opinion, the contention of the opposite parties must prevail. When the right of franchise is given and it is a pre-requisite that the voter must have a place of residence within the specified area it means that he should reside there lawfully and he must have a colour of title to the subject matter of his residence. This section came to be construed by Jack, J., in Kasimuddin Talukdar v. Mafijuddin Ahmed & Others, (1) (40 C.W.N. 753). It was held there that it is not enough that one lived within the area, but it was further necessary that one should have some title to the place of residence. It is not necessary to be the owner of the place where a person resides, but he must be holding it under some colour of a lawful title, e.g., as tenant or lessee etc. The residence must be lawful residence. Of course, if there were allegations and counter-allegations as to whether the residence was lawful or not, then this Court might have refused to go into the disputed question of fact. Here however, the petitioners do not dispute the fact that they are squatters, in unauthorized occupation of lands.

But the more vital point is that the petitioners have failed to establish that they are citizens of the Indian Union. Under Article 6(b) (ii) of the Constitution, where a person has migrated on or after the 19th July, 1948, he must be registered as a citizen of India by an officer appointed in that behalf by the Government on an application made by him before the commencement of this Constitution. No such application was made or registration effected and clearly the petitioners cannot be considered to be citizens of the Indian Union and as such, they have no locus standi whatsoever to vote at any election.

At the hearing of this application, the learned Advocate for the petitioners urged that with regard to one of the petitioners, he had come to India in 1948 as will appear from certain papers which he attempted to produce before me. I cannot clearly allow the petitioners to go behind the sworn statements made by them in the petition, wherein it is categorically stated that the petitioners permanently migrated in 1950. Even if it be a fact that one amongst them becomes a refugee in 1948, it might well be that he had returned to Eastern Pakistan and finally migrated in 1950. It is his sworn testimony before me that he migrated permanently in 1950. As regards the statement made by the opposite parties that the petitioners failed to produce documentary evidence in support of their qualifications to be enrolled as voters, it is argued that there was a legal duty on the election officer to give notice to the petitioners to produce specific documents. It is said that some of the petitioners actually attended with documents which nobody asked them to produce. I do not think this is the correct position at all. There is no duty cast upon the election officer to call upon any objector to produce any specific document. It is for the objector to support his objection by producing adequate evidence. It is further argued that two of the petitioners were actually in the list of voters in the previous year. I do not think that alters the position. It is apparent that their names were included in the list of voters wrongly and through oversight. I find nothing in any law which would make them citizens of the Indian Union by reason of the fact that their names somehow got into the voters'' list, although there was a plain contravention of the provisions of Article 6 of the Constitution.

The petitioners had the right to object and it was incumbent upon them to place before the election officers sufficient evidence to support their objections. There is nothing in any rule requiring the officer to call upon the objectors to produce any specific document. It is obvious that the petitioners cannot in any event be granted any relief as they failed to establish their right to be enrolled as voters, even at the hearing of this application. For the reasons aforesaid, this application fails and must be dismissed. The Rule is discharged. Interim orders, if any are vacated. I make no order for costs.