Decided on February 11,1960



- (1.)THIS application has been made by 96 persons as petitioners and relates to the affairs of the municipality known as the Garden Reach Municipality, situated in the suburbs of Calcutta. Originally, this municipality was a part of the Corporation of Calcutta, but was separated sometime in the year 1935. On or about the 16th May, 1955 the municipality was superseded by an order of the Government and an Administrator was appointed and he is functioning ever since. The Government has announced the next general election to be held, and the date for the election has been fixed for the 14th February, 1960. In working out the programme for the ensuing election, the Administrator prepared and published a preliminary roll, including Ward No. 5 on or about the 14th September, 1959. The petitioners Nos. 5 to 98 ore members of joint families, who claimed to be entitled to vote at the ensuing election, on the ground that their joint families pay rates to the municipality. The petitioners Nos. 1 to 4 claim to be co-owners of certain holdings, and they have also the requisite qualifications for voting. In the preliminary electoral roll, the petitioners' names were not included. Thereupon they preferred a claim before the registering authority, that is, the Administrator in this case, claiming to be included in the electoral roll. The registering authority being satisfied about their status and qualifications, included them in the final electoral roll, which was published on the 14th November, 1959, Thereupon, the respondent No. 6 preferred an appeal under Section 529-A of the Bengal Municipal Act (hereinafter referred to as the "act") against the inclusion of the petitioners' names by the registering authority in the final electoral roll. The ground taken was that the petitioners had not complied with Rule 4 of the Election Rules, not having sent a letter within the time specified in terms of the said Rule. The learned Magistrate upheld this contention and passed a summary order to the effect that, inasmuch as the provisions of Rule 4 were not complied with, the names of the petitioners should be struck out from the final electoral roll It is from this order that the petitioners have come up to this Court.
(2.)THE question, therefore, is as to whether on the facts and circumstances of this case. Rule 4 has any application. It is admitted that if it does apply, no letter in accordance with it was ever sent to the registering authority within thirty days of the announcement of the general election or at all. The relevant provision in the said Act is section 23. Sub-section (2) of section 23 lays down the qualifications which a voter should have, in order to be entitled to vote at an election. So far as the joint family is concerned, the appropriate sub-section is sub-section (5 ). In order that this sub-section should apply, the unit must be a joint family, that is to say, it is the joint family which must be making payments of the municipal rates etc. Clause (i) of sub-section (5) provides that where such a joint family has been paying municipal rates of the kind contemplated in Clauses (a), (b), (c) and (d) of sub-section (1) of Section 123, or the consolidated rates under the Calcutta Municipal Act as extended to the municipality of Howrah, then the individual members thereof would be entitled to be shown separately in the electoral roll and would thus be able to vote separately. Also in such a case, where a member has been assessed to income tax during the preceding financial year, he is entitled to be separately enrolled in the electoral roll. I might mention here that Clause (a) of Sub-Section (1) of Section 128 relates to the payment of a rate on holdings situated within the municipality, assessed at their annual value. Clause (ii) of subsection (5) deals with the case where the joint family as a unit had been paying municipal fees and taxes. Of course the word "taxes" might include rates in the larger sense, but inasmuch as it has been separately treated, one must presume that this clause deals with the payment of fees and taxes other than the headings enumerated in Clauses (a), (b), (c) and (d) of subsection (1) of Section 123. In such a case, the question is whether the share of fees and taxes paid by the individual members exceed the minimum prescribed. In this case, the minimum has been prescribed by Government Notification and it amounts to eight annas per year. If the share of each member exceeds that sum, then he is entitled to individual representation. If it does not amount to such a sum, then the proviso appended to Clause (ii) of sub-section (5) comes into operation. This is important for our purpose and it is set out below:-
"provided that where the total amount paid by a joint family does not equal or exceed the amount necessary to entitle every member of the joint family to vote, one of the members of such joint family as its representative shall be entitled to vote except in case where any member of such joint family is enrolled to vote separately and individually in respect of his share in the joint property. "

(3.)THE meaning of the proviso is as follows: Where the joint family pays any of the amounts levied by the Commissioners but where the total amount does not equal or exceed the amount necessary to entitle every member to vote, then individual representation is not permitted but common representation. In such a case, only one member can represent the joint family. But there is an exception. It sometimes happens that although a joint family is the unit of payment, one member without dissolution of the family, might choose to pay only his own share of the amounts to be paid and he may apply to the municipality and get his name separately recorded. In such a case, his separate representation is not to be disturbed, even though the rest of the joint family are entitled only to a common representation. That being the state of law with regard to the joint families, we now come to the Election Rules relevant to the preparation and publication of the electoral rolls. Rule 4 is a rule with which we are concerned in this case and it runs as follows:-
"within 30 days after the announcement of the date of a general election within a municipality any company, body corporate, firm or other association of individuals or any joint family, entitled to vote through one of its members as its representative, shall send a letter to the Registering Authority stating the qualification entitling it to vote and the name of the person who will vote on its behalf. "


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