FANI DUTTA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THE petitioner, Fani Dutta, aspired to stand as a candidate for election as a Councilor to the Corporation of Calcutta, from constituency no. 36. His nomination paper was rejected on the ground that his name did not appear in the Final Electoral Roll and as such he lacked the requisite qualification to stand as a candidate. The petitioner fault aggrieved by the rejection of his nomination paper, moved this court under Article 226 of the Constitution for relief and obtained this Rule. He also obtained an interim injunction staying declaration that the respondent Shiv Kumar Khanna was elected uncontested as the Councilor from constituency no. 36. The respondents to this Rule are 9 in number. Respondents nos. 1, 2 and 7 are respectively the Corporation of Calcutta, its Commissioner and its Record Keeper. They appeared before this court through Mr. Malay Kumar Bose, Advocate led by Mr. Siddhartha Roy, Advocate. Respondents Nos. 3 to 6 and 9 are respectively the Election Officer, the Registering Authority, the revising Authority, the Returning Officer and the State of West Bengal, who appeared before this court through the learned Additional Government Pleader and Messrs. P. S. Basu and P. K. Mukherjee, Advocates. Respondent no. 8 is Shiv Kumar Khanna, the possibility of whose uncontested election is challenged in this Rule. He appeared before this court through Mr. Sushil Kumar Biswas, Advocate led by Mr. P. K. Roy, Advocate.

(2.) FOUR separate affidavits-in-opposition have been filed in this Rule the first one is by respondent no. 4, the Registering Authority, the second one is by respondent no. 6, the Returning Officer (along with this affidavit there is a supporting affidavit affirmed by one Mrinal Kanti Banerjee, an Assistant in the Election Department), the third one is on behalf of respondent no. 7, the Record Keeper of the Corporation, affirmed by his Senior Assistant, one Rabindra Kumar Chakravarty and the fourth one is by respondent no. 8, Shiv Kumar Khanna. To the several affidavits-in-opposition there is an affidavits-in-reply by the petitioner supported by the supporting affidavit of one Sushil Kumar Ghose. By consent of parties, a certified copy of a page of the Final Electoral Roll (containing the name of the petitioner) , which was filed by the petitioner, and a certified copy of two pages of the Final Electoral Roll (the first page containing the name of the petitioner and the second page containing an entry showing deletion of the name of the petitioner and several others from the Final Electoral Roll), filed on behalf of respondent no. 7, were collectively marked as Ext. A. The originals of the annexure P, Q and R to the affidavit-in-opposition by respondent no. 4, the Registering Authority, were also, by consent, marked respectively Exts. B, C and D. The document, of which annexure Z to the affidavit-in-opposition by respondent no. 6, the Returning Officer, is a copy, was marked, by consent, as Ext. E. According to the case made by the petitioner, his name stands included in the Electoral Roll, for the time being in force for election of members to the West Bengal Legislative Assembly from, Assembly Constituency Nos. 1, 2, 3, Burt olla North, which corresponds to the present Calcutta Corporation Constituency No. 11. He further says that Ms name stood included in the Preliminary Electoral Roll of the respondent Corporation, published on January 9, 1965. He also says that the Final Electoral Roll of the respondent Corporation was published on February 20, 1965 and his name was therein included against serial no. 1158 of Part 14. On February 25, 1965, he says, he obtained a certified copy of the relevant page of the Final Electoral Roll (the first sheet in Ext. A) from the office of respondent no. 7, the Record Keeper of the respondent Corporation, which showed that his name was borne on the Roll. Assured that he was qualified to stand as a candidate, the petitioner says, he filed his nomination paper, on February 28, 1965, for election as a Councilor from Constituency No. 36. Respondent No. 8 also filed his nomination paper as a rival candidate. A third candidate also filed his nomination paper but since he has now withdrawn his candidature I am not concerned with him. March 5, 1965 was fixed for scrutiny of the nomination papers. On that date an election agent of respondent no. 8 filed a written objection against the nomination of the petitioner, inter alia, on the following grounds :-- (a) That the said Shri Fani dutta's name does not appear in. the Final Electoral Roll of the said. Constituency published on 20. 2. 65. (b) That the said Shri Fani dutta's name was struck out from the Parliamentary Roll of Candidates by the Final Electoral Roll. (c) That the said Shri Fani dutta's is not a resident in any constituency within the limits of corporation of Calcutta but Re lives with his family at A/244, Bangur avenue, which is within the jurisdiction of the South Dum Dum municipality. (d) That the said Shri Fani dutta has wrongly and falsely given his address "in the nomination paper as No. 306, Acharya Prafulla chandra Road, which is a furniture shop and not a residential place, though his address in the Parliamentary Electoral Roll is different viz. 38a, Nalin Sarkar Street, calcutta. (e) That for reasons aforesaid the nomination of Shri Fani Dutta is liable to be cancelled. " along with the objection, the objector filed a certified copy of the Electoral Roll (the second and third pages of Ext. A) which showed that the petitioner's name against serial No. 1158 stood deleted. He also filed a certified copy of the rationing card of the petitioner bearing an endorsement by the wife of the petitioner, Sm. Sepalika Dutta, that the petitioner and his family "shifted from Calcutta area (38a. Nalin Sarkar Street) 21/2 years ago", (Ext. E ). The petitioner filed a written reply to the objection, on the same date, couched in the following language:-"i applied for a copy of the entry in the Final Electoral Roll for 38a, Nalin Sarkar Street, Calcutta-4 within constituency No. 11 of Corporation of Calcutta and was granted a certified copy mentioning therein that the serial number of part 14 of the said Constituency No. 11 was 1158.

(3.) LONG after the last date of filing objection against the inclusion of any elector, I personally saw the Registering Authority of the Corporation of Calcutta Sri S. K. Sen Roy Choudhury, at his office at 1, Garstin Place, Calcutta-1 and enquired if there was any objection filed against the enrolment of my name in the said constituency No. 11. Upon this, the Registering Authority assured me, on consulting the records, that there was no objection against my name in Constituency No. 11, Shri Sushil Kumar Ghose of 308, Acharya Prafulla Chandra Road, Calcutta-9 was all along with me, while I was discussing the aforesaid facts with the Registering Authority. From the facts stated above, I beg to submit that if a certificate be now produced before you showing that my name was deleted from the said Constituency No. 11, it was a case of interpolation. I pray that you will be pleased to examine the said Sushil Kumar Ghose to corroborate my statement.