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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • K.P. Varma and S.N.P. Sharma
  • K.D. Chatterji
  • Lalnarain Sinha
  • Indu Shekhar Prasad Sinha
  • Parmeshwar Prasad Sinha and Devendra Prasad Sharma
Judges
  • H. Mahapatra
  • Tarkeshwar Nath, JJ.
Acts
  • Section 28 of this Act and Rule 23 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956,
  • rule 62 of the Bihar Municipal Elections and Election Petitions Rules, 1953. He referred to rule 75(c)
  • Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Sub-section (1) of section 21
  • Section 21(2) of the Representation of the People Act, 1950, read with Rules 25 and 23 of the rules
  • provisions of section 2(1)(e) of the Representation of the People Act, 1951 (Act XLIII of 1951).
  • Rule 25 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956,
  • provisions of Sections 22 and 23 of the Representation of the People Act, 1950,
  • Section 7 of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • rule 5(i) of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • Rule 3 of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • Rule 4 of the Bihar Municipal Elections and Election Petition Rules, 1953,
  • rule 4 of the Bihar Municipal Elections and Election Petitions Rules.
  • Bihar Municipal Elections and the Election Petitions Rules, 1953,
  • Sections 22 and 23 of the Representation of the People Act, 1950.
  • provisions of the Bihar and Orissa Municipal Act and the Rules
  • 1960.25. Section 15 of the Bihar and Orissai Municipal Act, 1922,
  • section 62(1) of the Representation of the People Act, 1951,
  • REPRESENTATION OF THE PEOPLE ACT 1950
  • SECTION 23 REPRESENTATION OF THE PEOPLE ACT 1950
  • SECTION 22 REPRESENTATION OF THE PEOPLE ACT 1950
  • provisions of the Bihar and Orissa Municipal Act, 1922
  • ARTICLE 226 CONSTITUTION OF INDIA
  • Rules 10 and 11 and the provisions of Rules 12 to 23
  • REPRESENTATION OF THE PEOPLE ACT
  • Representation of Tie People Act, 1950 (43 of 1950)
  • provisions of the Election Rules, rule 62
  • Act. Sub-section (2) of Section 21
  • S. 2(i)(e) of Act XLIII of 1951.15.
  • Rule 4 of the Election Rules.
  • Section 21 and sub-section (2)
  • sub-section (2) of Section 21,
  • sub-section (1) of Section 23
  • provisions of Rules 4 to 9
  • Rule 25 of the said Rules
  • Rules on 9-5-1960. Rule 25
  • S. 23 and rule 26
  • Rule 23, R. 26(1)
  • Sub-rule (3)
  • Sub-rule (4)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • K.P. Varma and S.N.P. Sharma
  • K.D. Chatterji
  • Lalnarain Sinha
  • Indu Shekhar Prasad Sinha
  • Parmeshwar Prasad Sinha and Devendra Prasad Sharma
Judges
  • H. Mahapatra
  • Tarkeshwar Nath, JJ.
Acts
  • Section 28 of this Act and Rule 23 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956,
  • rule 62 of the Bihar Municipal Elections and Election Petitions Rules, 1953. He referred to rule 75(c)
  • Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Sub-section (1) of section 21
  • Section 21(2) of the Representation of the People Act, 1950, read with Rules 25 and 23 of the rules
  • provisions of section 2(1)(e) of the Representation of the People Act, 1951 (Act XLIII of 1951).
  • Rule 25 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956,
  • provisions of Sections 22 and 23 of the Representation of the People Act, 1950,
  • Section 7 of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • rule 5(i) of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • Rule 3 of the Bihar Municipal Elections and Election Petitions Rules, 1953,
  • Rule 4 of the Bihar Municipal Elections and Election Petition Rules, 1953,
  • rule 4 of the Bihar Municipal Elections and Election Petitions Rules.
  • Bihar Municipal Elections and the Election Petitions Rules, 1953,
  • Sections 22 and 23 of the Representation of the People Act, 1950.
  • provisions of the Bihar and Orissa Municipal Act and the Rules
  • 1960.25. Section 15 of the Bihar and Orissai Municipal Act, 1922,
  • section 62(1) of the Representation of the People Act, 1951,
  • REPRESENTATION OF THE PEOPLE ACT 1950
  • SECTION 23 REPRESENTATION OF THE PEOPLE ACT 1950
  • SECTION 22 REPRESENTATION OF THE PEOPLE ACT 1950
  • provisions of the Bihar and Orissa Municipal Act, 1922
  • ARTICLE 226 CONSTITUTION OF INDIA
  • Rules 10 and 11 and the provisions of Rules 12 to 23
  • REPRESENTATION OF THE PEOPLE ACT
  • Representation of Tie People Act, 1950 (43 of 1950)
  • provisions of the Election Rules, rule 62
  • Act. Sub-section (2) of Section 21
  • S. 2(i)(e) of Act XLIII of 1951.15.
  • Rule 4 of the Election Rules.
  • Section 21 and sub-section (2)
  • sub-section (2) of Section 21,
  • sub-section (1) of Section 23
  • provisions of Rules 4 to 9
  • Rule 25 of the said Rules
  • Rules on 9-5-1960. Rule 25
  • S. 23 and rule 26
  • Rule 23, R. 26(1)
  • Sub-rule (3)
  • Sub-rule (4)
See more information ...
Smart Summary

Structured Summary of the Opinion (Tarkeshwar Nath, J. and Mahapatra, J.)

Factual and Procedural Background

Seventeen petitioners filed an application under Articles 226 and 227 of the Constitution seeking a declaration that the election of Municipal Commissioners of Sitamarhi Municipality held on 12 June 1960 was void.

Relevant dates and administrative acts in the factual matrix (as stated in the opinion):

  • 20 February 1959: District Magistrate of Muzaffarpur called on all wards of Sitamarhi Municipality to elect Commissioners on or before 15 July 1959.
  • No election was held by that date; on 4 February 1960 the District Magistrate issued another notification adjourning the election to 31 May 1960 (Notification No. 118 Elec. dated 4-2-1960).
  • 8 March 1960: Sub-divisional Magistrate of Sitamarhi (respondent 27) was appointed returning officer; election timetable fixed including last date for nomination 27-4-1960 and poll originally 29-5-1960 but polling postponed to 12-6-1960 by subsequent notification(s).
  • 30 October 1959: An electoral roll for the Sitamarhi South Assembly constituency was finally published after intensive revision.
  • 9 May 1960: Another publication (described in the record as the electoral roll “finally published” on that date, incorporating a list of amendments) was made and that roll was the one used at the poll on 12 June 1960, according to the Election Supervisor's affidavits.
  • Result of polling on 12 June 1960: respondents 1 to 24 were declared elected as Municipal Commissioners.

Petitioners alleged illegality primarily because notification calling for elections and nomination stages took place in reliance on the 30-10-1959 roll, while the poll used a different roll (published 9-5-1960), and on that account certain petitioners and prospective candidates were affected (names deleted or not present).

The District Magistrate (respondent 25), ex-Sub-divisional Officer (respondent 26), and present Sub-divisional Officer (respondent 27) were impleaded. The court ultimately heard affidavits from the Election Supervisor and other respondents and delivered reasons and orders through the two judges whose opinions are reported.

Legal Issues Presented

  1. Whether the use of a revised electoral roll published on 9 May 1960 at the time of polling (12 June 1960), instead of the electoral roll in force when the District Magistrate called the municipal election (30 October 1959), rendered the election void.
  2. Whether the procedure of calling nominations, conducting scrutiny and then holding a poll on the basis of a subsequently published revised roll was lawful under Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953 read with the Representation of the People Act, 1950 and its rules (notably Sections 21–23 and Rules 23 and 25 of the Preparation Rules).
  3. Whether corrections, deletions or inclusions of names under Sections 22 and 23 of the Representation of the People Act, 1950 could justify the use of the revised roll at poll (i.e., whether the changes were within the note to Rule 4 or amounted to a full annual revision that substituted the earlier roll).
  4. Whether specific allegations about deletion of names (petitioners 15–17) and the eligibility of certain elected persons (e.g., respondent 14) raised matters appropriate to be decided by writ jurisdiction or whether the remedy was by election petition under the municipal rules (rules 62 and 75(c) of the Municipal Election Rules).

Arguments of the Parties

Petitioners' Arguments

  • The notification calling the wards to elect commissioners was issued before final publication of the electoral roll that was ultimately used at poll (i.e., the roll of 9-5-1960), rendering the election invalid.
  • The poll on 12-6-1960 was held on a different electoral roll from the roll used for nomination and scrutiny; using a different roll at poll was “entirely unwarranted and unjustified.”
  • Certain petitioners (15, 16, 17) were registered at the time the constituency was called on to elect but their names were subsequently deleted from the final publication and thus they lost candidate or voter status; other petitioners alleged their names did not appear in the earlier roll and they were thereby prevented from being candidates (petitioners 7 and 12 and others).
  • Specific allegation that respondent 14 (Rajendra Prasad) was not a voter in the finally published electoral roll and his election was therefore illegal.

Respondents' / Election Supervisor / Government Pleader Arguments

  • Election Supervisor and respondents 25–27: the electoral roll of Sitamarhi South Assembly constituency (published 30-10-1959 after intensive revision) was taken to be the basis for the municipal election under Rule 4 of the Bihar Municipal Election Rules; the 1960 activity was an annual revision in which a list of amendments (prepared under Rule 25 of the Preparation Rules) was finally published on 9-5-1960 and the existing roll together with the list of amendments constituted the electoral roll in force for the poll.
  • Gagandeo Singh (on behalf of respondent 15) argued that wards used for Assembly and Municipal elections were identical and that the draft roll revised in 1959 formed the basis for municipal elections; the entire municipal election was held on the basis of the roll in existence at the time of filing nominations.
  • Learned Government Pleader argued alternatively that where names are included in the roll under Section 23, those persons have a right to vote even if they could not be candidates; he relied on rule 5(i) of the Municipal Rules and Section 62(1) of the Representation of the People Act, 1951, and case law establishing that a direction under Section 23 read with Rule 26 is sufficient for electoral status.
  • Government Pleader and counsel for respondents contended that objections concerning inclusion or deletion of names or qualification of candidates should be pursued by election petition under the Municipal Election Rules (notably rule 62 and rule 75(c)), i.e., that the Election Commissioner has jurisdiction to decide whether election result was materially affected and that these matters ought not to be litigated by writ in this Court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Brahamdeo Prasad Singh v. Narsingh Prasad, 1959 Pat LR 179 Reference to Rule 4 of the Bihar Municipal Elections and consideration of the District Magistrate's powers under that rule. The court referred to this decision as a precedent where Rule 4 and the District Magistrate's powers had been considered; it supported the proposition that the District Magistrate could adopt the Assembly electoral roll under Rule 4.
Chandra Shekar Prasad Singh v. Jai Prakash Singh, AIR 1959 Pat 450 That a direction under Section 23 of the Representation of the People Act, 1950 read with Rule 26, directing inclusion of a name, suffices to regard the person as an elector for purposes of Act XLIII of 1951 (Section 2(1)(e)). The court accepted the principle that persons included under Section 23 and Rule 26 acquire elector status for voting; this supported the Government Pleader's contention that inclusion under S.23 gives a right to vote, but the court found the present case involved an annual revision, not mere inclusions under S.23.
Ramkishun Singh v. Tribeni Prasad Singh, AIR 1959 Pat 356 Holds that the stage of correction under Section 22 and inclusion under Section 23 comes after final publication under the relevant Rules (R.23/R.25) and that the Electoral Registration Officer's jurisdiction to act is not negatived by final publication. The court relied on this authority to reject the petitioners' contention that names could not be deleted or corrections made after final publication of the 1959 roll; it concluded Section 22 corrections could be made after final publication and accordingly the petitioners' argument on that narrow point lacked merit.
Parmeshwar Mahaseth v. State of Bihar, AIR 1958 Pat 149 Authority cited concerning the availability of writ relief despite existence of election-specific remedies; cited in relation to maintainability. The court relied on this decision to hold that a challenge to the validity of the entire election could properly be entertained by writ and that rule 62 of the Municipal Election Rules did not bar the petitioners from obtaining relief in the present application.

Court's Reasoning and Analysis

The opinion contains two concurred judgments (Tarkeshwar Nath, J. and Mahapatra, J.). The following summarizes the sequential legal analysis that led the court to quash the election:

  1. Identification of the operative electoral roll at the time the election was called:
    • The District Magistrate's notification of 4 February 1960 called the municipal election in accordance with the Bihar & Orissa Municipal Act and the Municipal Rules. At that time the Assembly electoral roll published on 30 October 1959 was in force.
    • Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953 deems the Assembly electoral roll "for the time being in force" to be the municipal electoral roll; the court interpreted "for the time being in force" as referring to the roll in force when the District Magistrate called the wards to elect.
  2. Distinguishing types of changes to electoral rolls:
    • The court recounted statutory provisions: Section 21(1)–(3) and (2) in substitution for earlier Section 23 provide for annual revision rather than rewriting the roll each year; Rule 23 of the Preparation Rules prescribes final publication of the roll together with list of amendments; Rule 25 prescribes preparation and publication of a list of amendments and that the roll together with the list of amendments "shall be the electoral roll" on final publication.
    • Sections 22 and 23 permit correction of erroneous or defective entries and inclusion of omitted names, and the note to Rule 4 allows corrections and inclusions under those sections up to the date of poll.
    • The court distinguished between (a) corrections and inclusions under Sections 22–23 (permitted up to polling under the Rule 4 note) and (b) an annual revision under Section 21(2) and Rules 25/23 which produces a revised roll that is a complete roll and substitutes the earlier one.
  3. Factual finding about what actually occurred in this case:
    • Affidavits from the Election Supervisor stated that at the time of filing nominations the annual revision of the roll was under progress and a list of amendments was being prepared; the existing 30-10-1959 roll together with those amendments was finally published under Rule 23 on 9-5-1960.
    • The Election Supervisor further stated that the revised roll published on 9-5-1960 was used at the poll on 12-6-1960.
  4. Legal evaluation of the propriety of using the revised roll at poll:
    • The court held that Rule 4 requires the electoral roll "for the time being in force" at the time the District Magistrate calls the wards to elect to be the electoral roll for the municipal election. That roll was the one published 30-10-1959.
    • If only corrections/inclusions under Sections 22–23 were made, the note to Rule 4 would permit such limited alterations up to polling. However, the court found that the 9-5-1960 publication amounted to an annual revision (a complete revised roll) in which names present in the 1959 roll were omitted; that is not limited to the corrigenda or additions contemplated by the Rule 4 note.
    • Using a different (substantively revised) roll at poll created a situation where persons who relied on the 30-10-1959 roll for candidacy or expectation of support would be unfairly surprised by a different electorate at poll. This undermines certainty and the foundation of the election process.
  5. Arguments on specific defects and alternative contentions:
    • The Government Pleader argued that inclusions under Section 23 confer voting rights even if such persons cannot be candidates; the court accepted that principle (citing Chandra Shekar Prasad Singh) but distinguished it from the present facts because the 1960 roll was an annual revision, not mere inclusions under Section 23.
    • The petitioners' contention that deletions under Section 22 could not be made after final publication of the 1959 roll was rejected in light of the Ramkishun Singh decision and the statutory scheme which contemplates corrections after final publication in certain procedures; nevertheless, that legal point did not salvage the petitioners' claim because the court's primary ground was the substitution of the substantive revised roll at poll.
    • On maintainability, the Government Pleader contended an election petition remedy existed under the Municipal Rules; the court observed that where the validity of the entire election is questioned (as here on the ground of improper electoral roll), such a challenge could properly be entertained by writ and cited Parmeshwar Mahaseth in support.
  6. Conclusion of legal analysis:
    • Because the polling on 12-6-1960 was conducted on a revised electoral roll (published 9-5-1960) that materially differed from the roll in force when the election was called (30-10-1959) and not merely corrections/inclusions within the narrow ambit of Sections 22–23, the court held that the procedure vitiated the entire election.
    • The court therefore granted relief quashing the election and directed fresh election to be held according to law.

Holding and Implications

Holding:

The application is allowed; a writ of certiorari is issued quashing the election of respondents 1 to 24 held on 12th June 1960, and a mandamus is issued against the District Magistrate, Muzaffarpur (respondent 25), to hold fresh election according to law. There will be no order as to costs.

Implications and consequences:

  • Direct effect: The court set aside the municipal election held on 12 June 1960 (respondents 1–24), and ordered that fresh elections be held in conformity with the law and rules referenced in the opinion.
  • Legal principle applied: For a municipal election deemed to be held on the basis of an Assembly electoral roll under Rule 4, the roll "for the time being in force" is the roll in force when the District Magistrate issues the notification calling the election; only limited corrections/inclusions permitted by Sections 22–23 and the note to Rule 4 may be made up to polling—a substantive annual revision substituting the earlier roll cannot be used to change the electorate at the polling stage for that same election.
  • Remedial route: The court held that where the validity of the entire election is impeached on such grounds, writ relief is available and not necessarily foreclosed by the availability of an election petition remedy under the municipal election rules.
  • Precedential scope: The decision applies the statutes and rules as they stood and applies earlier Patna decisions; the opinion does not assert that it establishes a novel statutory interpretation beyond the issues decided, and its practical effect is to require conformity with the identified rule that the roll in force when the election is called (subject to limited corrections/inclusions) must be used for the whole election process.

Order in the opinion: Petition allowed; writ quashing the election issued; mandamus to hold fresh election; no costs. Both judges concurred.

Show full summary ...

    Bishwanath Prasad And Others v. Ramji Prasad Sinha And Others

    Tarkeshwar Nath, J.:— This application by seventeen persons under Articles 226 and 227 of the Constitution of India is for a declaration that the election of the Municipal Commissioners of the Sitamarhi Municipality held on 12-6-1960 was void. The facts leading to this application are these. On 20-2-1959 the District Magistrate of Muzaffarpur called upon all the words of the Sitamarhi Municipality to elect Commissioners on or before 15-7-1959. No step was taken for holding the election before that date and hence it was adjourned to 31-5-1960 by another notification dated 4-2-1960 issued by the same officer. The District Magistrate appointed the Sub-divisional Magistrate of Sitamarhi (respondent 27) as a returning officer by notification dated 8-3-1960 and the latter fixed 27-4-1960 as the last date for filing of the nomination paper, 28-4-1960 for scrutiny, 1-5-1960 for withdrawal and 29-5-1960 for the poll relating to the election of the Commissioners of the Sitamarhi Municipality. The date for polling was, however, postponed to 12-6-1960 and this alteration, it is alleged, was illegal for want of a proper notification. The result of the polling on 12-6-1960 was that respondents 1 to 24 were declared elected as Commissioners of the Sitamarhi Municipality. The petitioners further alleged that the electoral roll for the election of the said Commissioners was finally published on 9-5-1960 and that being so, the notification calling upon the constituency to elect Commissioners even before the final publication of the electoral roll was entirely illegal. In that state of affairs, they challenged the election of respondents 1 to 24. Their further grievance was that petitioners 15, 16 and 17 were voters at the time when the constituency was called upon to elect but their names were deleted from the electoral roll which was finally published. Petitioners 7 and 12 also made a grievance that as the electoral roll was not finally published, they could not be candidates. It appears that out of these 17 petitioners, petitioners 1 to 6, 8 to 11 and 13 and 14 alleged themselves to be the voters of this Municipality. It was alleged that Rajendra Prasad (respondent 14) was not a voter in the finally published electoral roll and as such his election as Municipal Commissioner from Ward No. 14 was illegal. The District Magistrate, Muzaffarpur, the ex-Sub-divisional Officer, Sitamarhi and the present Sub-divisional Officer of Sitamarhi were impleaded as respondents 25, 26 and 27 respectively in this petition.

    2. In answer to the said petition, Gagandeo Singh, an employee of respondent 15, filed a counter-affidavit to the effect that the wards in which the Sitamarhi Municipality was divided for holding Assembly elections were identical with the wards for holding Municipal election and that system was continuing since a very long time. The draft electoral roll was duly revised in the year 1959 and on the basis of that electoral roll, electors were called upon to hold election of the Municipal Commissioners of the Sitamarhi Municipality. The revision of the electoral roll in 1960 was in due course for holding all sorts of elections and the said roll was revised in accordance with the prescribed rules. He stated in paragraph 7 of his counter-affidavit that the entire Municipal election was held on the basis of the electoral roll in existence at the time of filing nominations. The Election Supervisor swore a counter-affidavit on behalf of respondents 25 to 27 and he made nut that the electoral roll of the Sitamarhi South Assembly constituency was taken to be the basis for the Municipal election according to Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, and hence the electoral roll finally published on 30-10-1959, after intensive revision was taken to be the roll for filing nomination papers as according to the election programme, the nomination papers were to be filed from 19-4-1960 to 27-4-1960. He further stated that “in this year again there was an intensive revision of the rolls of the Sitamarhi South Assembly Constituency and the rolls were finally published on 9-5-60 as scheduled which was valid at the time of Poll.” Ram Lakhan Sao (petitioner 14) filed a reply to these counter-affidavits and he asserted that the election of the Municipal Commissioners was held on the basis of the electoral roll which was finally published on 9-5-1960 and not on the basis of the one which was in existence on and from 30-10-1959. On the first occasion when this case came up before us for hearing, it was not clear from the counter affidavit of the Election Supervisor as to which electoral roll was adopted for the election of the Municipal Commissioners and in order to make the matter further clear, the learned Government Pleader took some time for filing a supplementary affidavit. The Election Supervisor has filed a further affidavit and, according to him, the electoral roll of the Sitamarhi South Assembly Constituency was prepared after house to house enumeration and it was finally published on 30-10-1959. The said electoral roll, so far as it related to the Municipal areas, was in 24 parts corresponding to the 24 wards of the Municipality and under Rule 4 of the Bihar Municipal Elections and Election Petition Rules, 1953, each part of the said electoral roll was deemed to be the electoral roll for the corresponding ward of the Municipality. He further stated that at the dates of filing of the nomination papers and the scrutiny, the annual revision of the electoral roll was under progress and a list of amendments to the electoral roll was being) prepared as required by Rule 25 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Accordingly, the existing roll together with the list on amendments was finally published under Rule 23 of the said rules (on 9-5-1960. According to him the electoral roll was not prepared afresh at the time of the annual revision in 1960, and, on the other hand, only a list of amendments was prepared and incorporated in the electoral roll which had been finally published on 30-10-1959. The result was that at the poll which took place on 12-6-1960, the revised roll, published on 9-5-1960 was used. Ram Lakhan Sao (petitioner 14) again filed an affidavit reiterating that the Constituency having been called upon to elect the Commissioners long before the publication of the electoral roll on 9-5-1960, the election was invalid and illegal. The main contention of learned counsel for the petitioners is that the electoral roll finally published on 9-5-1960 was not at all in existence when the various wards were called upon to elect Commissioners of the Sitamarhi Municipality. According to him, the electoral roll published on 30-10-1959 was used for the purposes of filing nomination papers and the scrutiny thereof, but a different electoral roll which was finally published on 9-5-1960 was used for the purposes of polling and recording of votes which took place on 12-6-1960. This procedure, he contended, was entirely unwarranted and unjustified. According to Rule 3 of the Bihar Municipal Elections and Election Petitions Rules, 1953, the qualification for the registration of electors at elections of Municipal Commissioners shall be the same as those for the registration of electors at elections of members to the Bihar Legislative Assembly of the State of Bihar. Rule 4 provides that so much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar for the time being in force, as relates to the local areas comprised within the limits of the Municipality, shall be deemed to be the electoral roll for that municipality for the purpose of elections of municipal commissioners and so much of the said electoral roll or rolls as appertain to a particular ward of the municipality shall be deemed to be the electoral roll of that ward. The position thus is that according to this rule, the electoral roll of an Assembly constituency shall be deemed to be the electoral roll for the Municipality for the purposes of election of Commissioners. The expression “shall be deemed” indicates clearly that the electoral roll for the State Assembly constituency has to be regarded for all practical purposes as the electoral roll for the Municipality. The substantial purpose of this rule is to avoid the necessity of preparing electoral rolls separately for different Municipalities and to save time and energy which are required in complying with the various formalities relating to the preparation of electoral rolls. There is a proviso to this Rule 4 in these terms:

    “Provided that where the wards into which the Municipality is divided for the purpose of elections of commissioners are not identical with the wards into which the particular Assembly Constituency is divided for the purpose of election to the Bihar Legislative Assembly, or the electoral roll of the Assembly Constituency is, in the opinion of the District Magistrate, not deemed suitable to be the electoral roll for the purpose of the municipal election a fresh electoral roll for each ward of such Municipality shall be prepared by the District Magistrate, or any other person authorised by the District Magistrate in this behalf, on the basis of qualifications for registration of electors specified in Rule 3 and in accordance with the programme to be drawn up by the State Government and published in the official Gazette, in the form prescribed below. In preparing such fresh electoral rolls, the forms of the electoral rolls, claims, objections, etc., shalls with necessary modifications, be the same as have been prescribed in the Representation of Tie People Act, 1950 (43 of 1950) and the rules made thereunder and the provisions of Sections 18, 20, 22 and 23 of the said Act applicable in relation to Assembly constituencies shall, as far as may conveniently be and with the necessary changes in points of detail, apply to every such, case of a fresh electoral roll.”

    3. This proviso envisages that, in certain case it is open to a District Magistrate to come to a conclusion that the electoral roll of an Assembly constituency is not suitable to be the electoral roll for the purposes of Municipal election. It is further open to him to direct the preparation of a fresh electoral roll for each ward of a municipality. If he decides to have a fresh electoral roll prepared, the procedure for it will be the same as prescribed in the Representation of the People Act, 1950 (43 of 1950) and the rules made thereunder. It will be proper to refer here to the following note appended to Rule 4.

    “Where an electoral roil of the Assembly constituency, which is deemed suitable to be the electoral roll for the purposes of the Municipal election, does not contain the name of any person entitled to be registered in the electoral roll or contains any erroneous or defective entry, the person concerned, may, in accordance with the provisions of Sections 22 and 23 of the Representation of the People Act, 1950, get his name included and other corrections made in that roll till the date on which a poll in respect of the Municipal election is to be taken.”

    4. Notification No. 118 Elec. dated 4-2-1960 of the District Magistrate Muzaffarpur was in these terms:

    “Whereas the terms of office of the Members of the present board of Sitamarhi Municipality has expired and the General Election of the Municipality has become due, therefore, in exercise of the powers conferred under Section 7 of the Bihar Municipal Elections and Election Petitions Rules, 1953, I.S.M Sulaiman, District Magistrate, Muzaffarpur, do hereby call upon all the wards of the Municipality to elect Municipal Commissioners in accordance with the provisions of the Bihar and Orissa Municipal Act, 1922 and the rules thereof on or before the 31st May 1960.”

    5. This is Annexure A of the petition. There were other notifications and the date for election was postponed to 12-6-1960. The notification, referred to above, indicates clearly that the election of the Municipal Commissioners was to be held in accordance with the provisions of the Bihar and Orissa Municipal Act and the Rules thereof. The Act and the rules have to be taken together and in the present case the District Magistrate of Muzaffarpur did not consider that the electoral roll of the Assembly Constituency was unsuitable for the purposes of the election of the Municipal commissioners of the Sitamarhi Municipality. The counter-affidavit sworn by the Election Supervisor indicates clearly that the electoral roll of the Sitamarhi South Assembly constituency was taken to be the basis for the Municipal election according to Rule 4 of the Election Rules. That electoral roll of the Assembly constituency was finally published on 30-10-1959 and the notifications of the District Magistrate calling upon the wards to elect commissioners were issued after this date. The nominations also were called for subsequent to 30-10-1959 and the scrutiny as well took place long after that date. I thus find no illegality in the notifications, referred to above, and it must be held that the District Magistrate rightly decided to adopt the electoral roll of the Sitamarhi South Assembly constituency as the basis for calling for the nominations for the election of the Municipal Commissioners. Reference may be made in this connection to the decision in the case of Brahamdeo Prasad Singh v. Narsingh Prasad, 1959 Pat LR 179 where Rule 4 has been referred to and the powers of the District Magistrate have been considered.

    6. The next question which arises for consideration is as to which electoral roll—whether the one in existence on and from 30-10-1959 or the next one published on 9-5-1960, was used at the time of the polling which took place on 12-6-1960. Learned Government Pleader submitted that the electoral rolls had to be revised annually and there were certain amendments to the electoral roll published on 30-10-1959. According to him, those amendments were finally published on 9-5-1960 and the electoral roll finally published on 30-10-1959 along with the amendments was used at the polling which took place on 12-6-1960. He pointed out that these amendments were printed in Hindi and were known as “Shudhi patra” and the position was that by these amendments, names of certain voters were added to the roll whereas the names of others were deleted from the electoral roll which was in existence ore and from 30-10-1959. A question arises as to whether this procedure is justified according to the provisions of the Municipal Act read with those of the Representation of the People Act, 1950, and the rules made under Section 28 of that Act? Before considering the various provisions and the rules, it is necessary to point out that certain steps have to be taken before the votes are actually recorded. There has to be a notification at first about the holding of an election and then comes the nomination. After the nomination papers are filed, a scrutiny of the nomination has to be held and then a list of the candidates whose? nominations have been held to be valid is prepared. It is then open to any nominated candidate to withdraw his candidature. It is also open to a candidate to retire from the contest and next to that in the process of election is the Poll. Turning to the provisions of the Representation of the People Act, 1950, it appears that Section 21(1) provides that the electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act. sub-section (2) of Section 21 provides that the said electoral roll shall thereafter be revised in every subsequent year in the prescribed manner by reference to the qualifying date, and there is a proviso that if for any reason the electoral roll is not revised in any year, the validity or continued operation of the electoral roll shall not thereby be affected. Under Sub-section (3), it is open to the Election Commission at any time, for reasons to be recorded, to direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit. Section 23 of the Representation of the People Act, 1950, before its amendment of 1956, had provided that the electoral roll for each constituency shall be prepared every year in the prescribed manner by reference to the qualifying date. According to that provision, the electoral roll had to be prepared each year, but that meant considerable expense, an enquiry from house to house and rewriting of the rolls every year. In order to avoid the trouble, expense and waste of time and energy, Section 23 was substituted by Section 21 and sub-section (2) provides for an annual revision instead of an actual preparation of the rolls every year. Rules have been framed under Section 28 of this Act and Rule 23 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, is as follows:

    “The electoral registration officer shall thereafter publish the roll, together with the list of amendments by making a complete copy thereof available for inspection, and displaying a notice in Form 6:

    (a) at his office, if it is within the constituency, and

    (b) at such a place in the constituency as may be specified by him for the purpose, if his office is outside the constituency.

    7. And on such publication, the roll, together with, the list of amendments, shall be the electoral roll for the constituency.

    Provided that the electoral registration officer may, at any time, correct any clerical or printing errors that he may discover in the electoral roll.”

    8. Then comes Section 22 of the said Act and it reads thus:

    “If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral loll of the constituency

    (a) is erroneous or defective in any particular,

    (b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or

    (c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry:

    Provided that before taking any action on any ground under Cl. (a) or Cl. (b) or any action under Cl. (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.”

    9. There used to be inaccuracies in the electoral rolls, mainly of two kinds. Sometimes, the names of the dead and non-resident electors used to continue in the electoral rolls even long after their death or their abandonment of residence in the constituency. This section now gives power to the Electoral Registration Officer to exclude the names of dead or non-resident electors at any time from the electoral rolls. Clause (c) envisages deletion of names of persons on the further ground that they were not entitled to be registered in the electoral roll, but before doing so, the person concerned is entitled to be heard. Rule 25 of the said Rules also is relevant and it can be usefully quoted:

    “25. (1) For the purpose of the revision of the electoral roll for any constituency under sub-section (2) of Section 21, a list of amendments to the electoral roll for the time being in force shall be prepared and the provisions of Rules 4 to 9 shall, so far as may be, apply in relation to the preparation of such list as they apply in relation to the preparation of the electoral roll.

    (2) When any such list of amendments to an electoral roll for a constituency has been prepared the electoral roll for the constituency for the time being in force, together with such list of amendments shall be published in draft in the manner specified in Rules 10 and 11 and the provisions of Rules 12 to 23 shall, so far as may be, apply in relation to every such roll (including the list of amendments) as they apply in relation to electoral rolls prepared under.

    (3) When the electoral roll together with the list of amendments is finally published under Rule 23, the electoral roll shall be deemed to have been revised accordingly and the roll as so revised shall come into force immediately on such final publication.”

    10. Section 23 of the said Act is in the following terms:

    “23. (1) Any person whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll.

    (2) Where an application under sub-section (1) is made at any time after the issue of a notification calling upon that constituency or the Parliamentary constituency within which that constituency is comprised, to elect a member or members and before the completion of that election, it shall be made to the chief electoral officer; and in any other case, it shall be made to the electoral registration officer of that constituency.

    (3) The chief electoral officer or, as the case may be, the eletoral registration officer shall if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included thereto:

    Provided that if the applicant is registered in the electoral roll of any other constituency, the Chief Electoral Officer or, as the case may be, the Electoral Registration Officer shall inform the Electoral Registration Officer of that constituency and that officer shall, on receipt of the information strike off the applicant's name from that electoral roll.”

    11. This section envisages that even after the issue of a notification calling upon a constituency to elect a member, but before the completion of that election, an application for inclusion of name in the electoral roll can be filed before the Chief Electoral Officer; in other words, a person can in certain cases get himself enrolled as a voter even after the nominations and the scrutinies thereof but before the actual polling. Such applications for inclusion of names in the electoral rolls are entertainable even after the final publication of the electoral rolls under Rule 23, R. 26(1) lays down that every application, under sub-section (1) of Section 23 shall be made in duplicate in Form 4 (Part I) and shall be accompanied by a certain amount of fee. Sub-rule (3) provides that the chief electoral officer or, as the case may be, the electoral registration officer shall, immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting. Sub-rule (4) reads as follows:

    “The chief electoral officer or, as the case may be, the electoral registration officer shall, as soon as may be after the expiry of the period specified in Sub-rule (3), consider the objections if any, received by him and shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein”.

    12. I have already quoted the note appended to Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, and according to that note, it is open to a person to get his name included and other corrections made in an electoral roll in accordance with the provisions of Sections 22 and 23 of the Representation of the People Act, 1950, even till the date on which a poll in respect of a municipal election is to take place. It is, therefore, clear that under Section 23 of the said Act, names can be included in the electoral roll even till the date of the poll, but the question is as to what was done in the present case by the authorities on 9-5-1960. It has to be ascertained as to whether there was an annual revision of the electoral roll in 1960 as provided by Section 21(2) of the said Act, or there were corrections of certain entries and inclusions of certain names as envisaged in Ss. 22 and 23 respectively of the said Act. This question is one of fact and it can be answered by reference to the affidavit of the Election ??? He stated in paragraph 6 of his affidavit ??? at the dates of filing of nomination papers and the scrutiny, the annual revision of the electoral roll was under progress and a list of amendments to the electoral roll was being prepared as required by Rule 25 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, and the existing roll together with the list of amendments was finally published under R. 23 of the said Rules on 9-5-1960. Rule 25 itself refers to sub-section (2) of Section 21 and lays down inter alia that a list of amendments to the electoral roll for the time being in force shall be prepared and the electoral roll together with such list of amendments shall be published in a certain manner. Thus, according to him, the revision of the electoral roll was under sub-section (2) of Section 21 and after that the existing roll together with a list of amendments was finally published on 9-5-1960. It is further clear from his affidavit that this revised roll was used at the time of polling on 12-6-1960. The substantial question for consideration is as to whether the electoral roll with the list of amendments incorporated in it and published on 9-5-1960 could be used at the time of the said polling. Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953, no doubt provides that so much of the electoral roll or rolls of an Assembly constituency of the State of Bihar for the time being in force, as it relates to the local areas comprised within the limits of the Municipality, shall be deemed to be the electoral roll for that Municipality for the purpose of election of Municipal Commissioners. But it has to be ascertained as to which electoral roll of the Sitamarhi South Assembly Constituency was in force at the time the District Magistrate of Muzaffarpur called upon all the wards of the Sitamarhi Municipality to elect Commissioners for that Municipality. His second notification was on 4-2-1960 and on that date, the electoral roll published on 30-10-1959 was in force. The expression “for the time being in force” in rule 4 will have reference to the time when the District Magistrate calls upon the wards of a Municipality to elect Commissioners. It cannot be said that the revised roll published on 9-5-1960 was in force at the time the District Magistrate made the notifications either on 20-2-1959 or 4-2-1960. The matter can be considered from another view point. In the present case, 27-4-1960 was the last date for the filing of the nomination papers and a person intending to file his nomination paper had before him the electoral roll finally published on 30-10-1959, and not the one which came to be published later on 9-5-1960. That person visualised his chances of success or otherwise in the election on reference to the electoral roll which had been published on 30-10-1959 and he may have counted on the support of several persons who were registered as voters in that roll. Having taken these factors into consideration, he decided to be a candidate, and that being so, if the revised electoral roll of 1960 came to be used at the time of the polling, he was naturally taken by surprise, little knowing that his merits or otherwise for his election would be judged by a different set of persons whose names would be entered in the revised roll. In case, however, there were corrections of certain entries and inclusion of names in the electoral rolls as provided in sections 22 and 23 respectively the matter might have stood on a different footing and, in fact, the note appended to Rule 4 itself indicates that it is open to a person to get his name included and other corrections made in an electoral roll event till the date of the polling. In the present case, it was not that there were corrections of entries and inclusions of names in the electoral rolls as provided by those sections and the note to rule 4. I am thus of the view that, according to the rules, the electoral roll which is in force at the time of the notification by a District Magistrate calling upon the wards to elect Commissioners has to be used at the time of the polling, subject to the corrections of entries and inclusions of names in accordance with the said note and the provisions of sections 22 and 23 of the said Act. To put it in other words, the position is that the electoral roll which was in force at the time of the notification should be used for the purpose of election according to rule 4 of the Bihar Municipal Elections and Election Petitions Rules. This was not done in the present case and instead of that, the revised roll published on 9-5-1960 came to be used at the time of the polling with the result that this procedure has vitiated the entire election and the petitioners are entitled to succeed on this ground.

    13. Learned Government Pleader alternatively argued that the names could be included in the electoral roll under section 23 of the Act and, although persons whose names came to be included under that section could not be candidates for the election in question, yet they had a right to vote. He submitted that once a person gets his name entered in the electoral roll, be was entitled to vote and rule 5(i) of the Bihar Municipal Elections and Election Petitions Rules, 1953, was in the following terms:

    “No person who is not, and, except as expressly provided by these rules, every person who is for the time being entered in the electoral roll of any ward of a municipality shall be entitled to vote in that ward of the municipality.”

    14. He pointed out that section 62(1) of the Representation of the People Act, 1951, was almost ??? similar terms and it provided that no person who is not, and except as expressly provided by this Act, every person who is, for the time being ??? in the electoral roll of any constituency shall be entitled to vote in that constituency. The inclusion of names in the electoral roll even till the time of poll in accordance with section 23 gives a special privilege for voting in the assembly election to persons who choose to apply under that section. The moment the name of a person is entered in the electoral roll of any constituency, he becomes an elector in accordance with the provisions of section 2(1)(e) of the Representation of the People Act, 1951 (Act XLIII of 1951). The purpose of S. 23 and rule 26 came to the considered in the case of Chandra Shekar Prasad Singh v. Jai Prakash Singh. AIR 1959 Pat 450 and it was observed as follows:

    “When a direction has been passed under S. 23 of Act XLIII of 1950 read with R. 26, directing that a particular name not included in the electoral roll should be included therein, it ought to be sufficient for the purpose of holding that a person whose name has been ordered to be included is, an elector within the meaning of S. 2(i)(e) of Act XLIII of 1951.”

    15. The contention of learned Government Pleader as undoubtedly correct that persons included in the electoral roll according to the note to rule 4 read with section 23 of the Act even till the time of the polling had a right to vote. But this contention is of no help to him, inasmuch as in the present case, the roll which came to be used at the time of the polling was an annually revised roll and not the one including certain names only in accordance with section 23 of the Act.

    16. Some specific objections have been taken by the petitioners in paragraphs 13 and 14 of their petition. They have mentioned in paragraph 13 that petitioners 7 and 12 were also anxious to be candidates, but since the electoral roll was not finally published they could not be included in the roll. Paragraph 13 does not give a clear idea as to what was the grievance of petitioners 7 and 12, but learned counsel for them amplified it and submitted that the position was that the names of petitioners 7 and 12 did not appear in the electoral roll published on 30-10-1959 and as such they were debarred from being candidates. Even accepting his submission that this was really meant by paragraph 13, the position is that it was open to them to take objections at the time the draft electoral roll was published and got their names entered in the electoral roll which was being prepared in 1959. They not having taken necessary steps in that direction within the prescribed time or thereafter under section 23 it is not open to them to agitate that matter at this stage, particularly in an application under Article 226 of the Constitution of India. Paragraph 14 was as follows:

    “That petitioners Nos. 1 to 6, and 8 to 11 and 13 to 14 are the voters of the said Municipality but since the Electoral Roll was not finally published before calling the constituency to elect, they could not elect commissioners according to their choice.”

    17. The last line of this paragraph indicates that the grievance of those petitioners was that they could not vote, but learned counsel submitted that their real grievance was that their names did not appear in the electoral roll published in 1959 and as such they could not offer themselves as candidates for this election. Their position is no better than those of petitioners 7 and 12 and they not having taken proper steps for getting their names registered in the electoral roll prepared in 1959, their objection at this stage is neither maintainable nor justified.

    18. Learned counsel for the petitioners further contended that names of certain persons which were entered in the electoral roll published in 1959 were deleted in 1960 and that was not justified according to the relevant provisions of the Act and the rules. According to him, correction of entries in the electoral rolls as provided in section 22 could be made before the final publication of the electoral roll, and not after that. In other words, according to him, all the persons whose names were entered in the electoral roll of 1959 were entitled to vote in the polling which took place on 12-6-1960 and the name of not even one of them could be deleted in 1960. Learned Government Pleader, on the other hand, refuted this contention and urged that even after the final publication of the electoral roll which was in 1959, it was open to the Electoral Registration Officer to correct an entry if it was erroneous or defective in any particular and also to delete any entry on the ground that the person concerned was dead or had ceased to be ordinarily resident in the constituency or was otherwise not entitled to be registered in that roll. In this manner, he attempted to justify the deletion of certain names in 1960 and the preparation of the amended list in that year which along with the electoral roll of 1959 came to be used according to him, at the time of polling on 12-6-1960. In the present case, the revised electoral roll as finally published on 9-5-1960 having been used at the time of poll, the question, as to whether the entries in the electoral roll could be corrected under section 22 before or after the final publication of the electoral roll hardly arises, but it having been raised and canvassed, I would refer in this connection to the decision in the case of Ramkishun Singh v. Tribeni Prasad Singh, AIR 1959 Pat 356. It was argued in that case that the Electoral Registration Officer had no jurisdiction to direct any correction under section 22 after the final publication of the electoral roll under R. 23 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Sub-section (1) of section 21 was referred to which provided for the final publication of the electoral roll for each constituency in accordance with the rules framed under that Act. Dealing with this contention, Kamla Sahai, J. observed as follows:

    “Sub-section (2) of S. 21 provides for periodical revision of the electoral roll, and sub-section (3) lays down that, under the direction of the Election Commission, there may be a special revision at any time. Ss. 22 and 23 of the same Act provide, respectively, for correction of entries in electoral rolls and inclusion of names of electors when those names are omitted from the rolls in which they should have been entered. R. 23 of the Electoral Rules provides for final publication of the roll of each constituency, and R. 25 relates to final publication of the roll together with lists of amendments after annual revision. R. 26 lays down the procedure for disposal of applications for inclusion of names under S. 23 of the Act of 1950.

    A perusal of these provisions makes it quite clear that the stage of correction of entries under S. 22 and inclusion of names under S. 23 of the Act of 1950 comes after the final publication under Rr. 23 and 25 of the Electoral Rules. When these provisions were pointed out to Mr. Das, he abandoned his argument relating to want of jurisdiction in the Electoral Registration Officer”.

    19. This decision definitely lays down that the stage of correction of entries provided by section 22 comes after the final publication of the electoral roll. I am thus of the view, that there is no merit in the contention of learned counsel for the petitioners that there could be no deletion of names under sec. 22 after the final publication of the electoral roll of 1959.

    20. Specific objection has been taken in paragraph 12 of the petition to the effect that petitioners 15, 16 and 17 were voters at the time when the constituency was called upon to elect but their names were deleted without reason in the final publication and as such they could not) be candidates. It is difficult to appreciate this objection, inasmuch as if their names were in the electoral roll published in 1959, it was open to them to be candidates. Learned counsel, however, submitted that this paragraph was not worded properly and the grievance of those three petitioners was, that their names had been wrongly deleted in 1960. This objection cannot be taken in the present application as it requires investigation of certain facts and the order of one officer or the other deleting the names of these petitioners is not before the Court. The facts and circumstances which led to the deletion of their names have not been disclosed in the petition and the order deleting their names cannot be the subject-matter of this application.

    21. The petitioners stated in paragraph 15 that “some persons like Shri Rajendra Prasad Respondent No. 14, Alilur Ansari and Tapeshwar Singh who were not voters in the finally published electoral roll but their names appeared in, the draft roll became candidates for election and Respondent No. 14 though not a voter was illegally elected as Commissioner from Ward No. 14.” This paragraph, I must say, has not been couched in proper language and it does not give a clear idea as to what was the grievance of the petitioners. Learned counsel tried to amplify the statements made in paragraph 15 as well and he pressed that the name of respondent 14 did appear in the electoral roll published in 1959 but it was deleted in 1960 and as such the election of respondent 14 from Ward No. 14 was illegal and invalid. In answer to this, Gagandeo Singh, an employee of respondent 15, stated in his counter affidavit that respondent 14 was a voter and was legally elected as a Municipal. Commissioner on the basis of the electoral to which was in existence at the time of filing nominations. The counter-affidavit of the Election Supervisor was that respondent 14 was a voteir from Ward No. 14 in the electoral roll finally published on 30-10-1959 and the said respondent, became a candidate from that ward of the Municipality. There was, however, an objection to respondent 14's being a voter from ward No. 14, on the ground that he was resident of ward No. 13) and that objection was allowed by the revising authority. Respondent 14 did not later on maker a prayer for being enrolled as a voter from ward No. 13 and consequently he could not be entrolled as a voter. As regards the other two persons mentioned in para 15, he stated that they did not) stand as candidates. It thus appears that Rajendra Prasad (respondent 14) was a validly nominated candidate and he could seek election as a Municipal Commissioner of the Sitamarhi Municipality.

    22. Learned Government Pleader took am objection to the maintainability of the present application for a writ and submitted that even if there was some irregularity or illegality in the election, the remedy of the petitioners was to file an election petition as provided in rule 62 of the Bihar Municipal Elections and Election Petitions Rules, 1953. He referred to rule 75(c) as well and submitted that it was within the jurisdiction of the Election Commissioner to decide as to whether the result of the election was materially affected by the improper acceptance or rejection of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote or by the reception of any vote which was invalid, or by any non-compliance with the provisions of the Act or of the rules framed under the Act in respect of the-election. According to him, the objections raised in paragraphs 12 to 15 of the petition should be raised in an election petition before the Election Commissioner, if the petitioners choose to file an election petition and, in any event, those matters should not be gone info in the present application. Mr. Lalnarain Sinha appearing for respondents 1 to 24 reiterate this objection and submitted that even if the names of some persons were rightly or wrongly included in the electoral roll or deleted from it, the remedy of the petitioners lay before the Election Commissioner and not in this Court. It was further pointed out that respondents 1, 2, 7, 12, 15 and 23 were elected as Municipal Commissioners with out any contest and the entire election should not be set aside. The position in the present case was that the electoral roll published on 30-10-1959 was in force at the time when the District Magistrate called upon the wards to elect Commissioners of the Sitamarhi Municipality, but the revised roll published on 9-6-1960 was used at the time of the poll on 12-6-1960. There was no illegality in the notifications calling upon the wards to elect Commissioners, but the revised roll published on 9-5-1960 has been wrongly and illegally used at the time of poll and that vitiated the entire election. People have to exercise their rights of franchise on the basis of the electoral roll and if the roll itself is not a proper one the very foundation of election is shaky and infirm and the election cannot stand. The petitioners are entitled to a writ on this ground.

    23. In the present case, the validity of the entire election having been challenged on account; of the violation of the provisions of the Election Rules, rule 62 cannot be a bar to the petitioners getting relief in the present application and reference may be made to the case of Parmeshwar Mahaseth v. State of Bihar AIR 1958 Pat 149.

    24. In the result, this application is allowed and a writ of certiorari would issue quashing the election of respondents 1 to 24 held on 12th June 1960, and there would be a mandamus against the District Magistrate, Muzaffarpur (respondent 25) to hold fresh election according to law. In the circumstances of this case, there will be no order for costs.

    Mahapatra, J.:— I agree. By this application under; Articles 226 and 227 of the Constitution the petitioners, some of whom are electors of the Sitamarhi Municipality, ask for quashing of the election of the Commissioners of that Municipality mainly on the ground that two electoral rolls were used for the purpose of election, the polling for which was held on the 12th of June, 1960. The affidavits filed on behalf of respondents 25 to 27, who were the officers concerned with conducting the election, make it abundantly clear that the electoral roil of the Assembly constituency for Sitamarhi that was published on the 30th of October 1959, was used when nomination: papers were filed and scrutinised and the revised electoral roll for the same assembly constituency which was published on the 9th of May 1960 was used for the polling held in that election on the 12th June 1960.

    25. Section 15 of the Bihar and Orissai Municipal Act, 1922, authorises the Government to make rules prescribing the manner of the registration of voters at elections of Municipal Commissioners and section 19 also gives them the power to make rules as they may think fit to regulate and determine, among other things, the mode of holding elections. In exercise of those powers the Bihar Municipal Elections and the Election Petitions Rules, 1953, were framed. Under rule 4 of those rules it was provided that 60 much of the electoral roll or rolls of an Assembly constituency of the State of Bihar for the time being in force, as relates to the local areas comprised within the limits of the municipality, shall be deemed to be the electoral roll for that municipality for the purpose of elections of municipal commissioners. In a note attached to that rule it was provided that where an electoral roll of the Assembly constituency, which is deemed suitable to be the electoral roll for the purpose of the municipal election, does not contain the name of any person entitled to be registered in the electoral roll or contains any erroneous or defective entry, the person concerned may, in accordance with the provisions of Sections 22 and 23 of the Representation of the People Act, 1950, get his name included and other corrections made in that roll till the date on which a poll in respect of the municipal election is to be taken. The electoral roll of the Sitamarhi Assembly Constituency was deemed, in the present case, to be the electoral roll for the municipal election, and such electoral roll which was for the time being in force, when the notification fonder rule 7 was published by the District Magistrate of Muzaffarpur on the 4th of February 1960, in connection with this election, was the one which had been published in accordance with the Representation of the People Act, 1950, and the rules framed thereunder on the 30th of October 1959. The candidates filed their nomination papers on the basis of that electoral roll also on and before the 27th of April 1960 which, was the last date for receiving nomination. That electoral roll, according to rule 4 mentioned above, was to be deemed to be the electoral roll for the Sitamarhi Municipality for the purpose of election of Municipal Commissioners. There cannot be any doubt that the municipal election is one proceeding although it has different steps and stages, such as, filing of nomination, scrutiny of the same, withdrawal of candidature, polling and declaration of elected candidates.

    26. The proceeding of election begins with the notification made by the District Magistrate concerned under R. 7 and ends with the declaration of the result of the poll. When rule 4 prescribes that the electoral roll for the connected Assembly constituency which is for the time being in force will be deemed as the electoral roll for the purpose of election of Municipal Commissioners, it cannot but mean that one and the same electoral roll of the Assembly constituency which was in force at the time of the commencement of the election is to be deemed to be the relevant electoral roll for the whole of the Municipal election. If it were not so, and if different electoral rolls could be brought to use at different stages of an election, it is bound to create not only confusion but also it would lead to absurd situations; for instance, an elector whose name was on the electoral roll at the time of nomination and who filed a valid nomination paper to be elected as a Commissioner may find his name deleted from a subsequent electoral roll that may have been prepared by way of revision as provided in the Representation of the People Act, 1950, and the rules thereunder, and will, therefore, not be entitled to vote at the polling. If the revised roll, published subsequent to the date of nomination, is again deemed to be the electoral roll for the same municipal election, his nomination having been valid, he can as well be elected as a Commissioner although he would have ceased to be an elector, according to the revised roll, on the data of polling. Let us assume his name might have been removed from the revised electoral roll on a valid objection raised against him, according to the rules under the Representation of the People Act. The electoral roll is the very basis of an election, whether it is for the Municipality or for the Assembly and there must be certainty about it throughout the whole process of an election.

    27. It is true that the Assembly electoral roll in force at the time of notification by the District Magistrate for a municipal election, which will be deemed to be the electoral roll for that municipal election, can be altered to some extent, even during the process of election, as contemplated under the note given under Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953. That alteration is limited to the inclusion of the name of any person who may be entitled to be registered as an elector, or to the correction of any erroneous or defective entry in that roll. The manner in which this alteration can be effected has been indicated in that note with reference to Sections 22 and 23 of the Representation of the People Act, 1950. Subject to this alteration, the Assembly electoral roll in force at the time of the District Magistrate's notification under Rule 7 will continue to guide the whole of the municipal election till the polling is over. The argument that the words in Rule 4, “the electoral roll…… of an Assembly constituency…… for the time being in force” would include the revised assembly electoral roll that may be brought into force in accordance with the provisions of the Representation of the People Act and the rules made thereunder cannot be accepted as correct, because R. 4 makes it clear that the Assembly electoral roll which is in force shall be deemed to be the electoral roll for the purpose of election of the Municipal Commissioners. If more than one electoral roll for a particular Assembly constituency prepared or revised according to law were intended to be applicable to different stages of one municipal election, there was no need of legislating that the Assembly electoral roll for the time being in force is to be deemed to be the electoral roll for the municipal election. Under the Representation of the People Act, 1950, and the rules framed under that Act, provided for annual revision of the Assembly electoral roll and with its final publication that comes into force immediately. So, at any point of time, as far as the Assembly electoral roll is concerned, there can be only one electoral roll. If that was intended to govern the different stages of a municipal election as and when those stages will be reached, there was no need of particularizing an Assembly electoral roll in Rule 4 to be deemed as the electoral roll for a particular municipal election.

    28. The other argument was to the effect that the revised Assembly electoral roll was in substance the Assembly electoral roll which was in force on the 4th of February 1960 when the District Magistrate made the notification under R. 7, which had been published on the 30th of October 1959, with the alterations that could be made in that roll during the municipal election as provided in the note attached to Rule 4. This again is not correct. A revised Assembly electoral roll as contemplated under Section 21(2) of the Representation of the People Act, 1950, read with Rules 25 and 23 of the rules made under that Act is a complete roll by itself and substitutes the previous one. The alterations as envisaged in the note to Rule 4 are only in respect of inclusion of new names and correction of erroneous and defective entries in the existing roll. It does not authorise deletion of any name from the existing roll for whatsoever reason. Though Section 22 of the Representation of the People Act, 1950, provides for deletion of names on more than one ground, reference to that section in the note to Rule 4 of the Bihar Municipal Elections and Election Petitions Rules, 1953 is restricted to the correction of erroneous and defective entries in the electoral roll which is also one other remedy provided under Section 22. The revised Assembly electoral roll published on the 9th of May 1960 was admittedly one in which several names appearing in the previous electoral roll were omitted. In that view, it cannot be said that the revised roll used for the polling of the Sitamarhi Municipal election on the 12th June 1960 was the Assembly electoral roll which was deemed under R. 4 to be the electoral roll for the municipal election with the changes made according to the note attached to that rule. The polling which was the important limb of the municipal election under challenge was thus completely vitiated as it was based upon a different electoral roll. That would be enough to quash that election. The application will, therefore, succeed and a writ quashing the election of the Commissioners of the Sitamarhi Municipality held on the notification of the District Magistrate dated the 4th of February, 1960, and by the polling on the 12th June 1960, shall issue.

    GH/AGT/D.V.C

    29. Petition allowed.

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