STATE OF ORISSA MANINOHAN MISHRA Vs. BHUPENDRA KUMAR BOSE THE STATE OF ORISSA

JUDGEMENT

(1.) These two appeals are directed against the order passed by the High Court of Orissa under Art. 226 of the Constitution striking down as unconstitutional Ss. 4 and 5(1) of Orissa Ordinance I of 1959 promulgated by the Governor of Orissa on January 15, 1959. This Order was passed on the Writ Petition filed by Mr. B. K. Bose against the State of Orissa and 27 persons who were elected Councillors of the Cuttack Municipality including the Chairman and the Vice Chairman respectively. Appeal No. 525 has been filed, by the State of Orissa whereas Appeal No. 526 is filed by the said Municipal Councillors. The appellants in both the appeals obtained leave from the Orissa High Court to appeal to this Court.

(2.) It appears that during December, 1957 to March, 1958, elections were held for the Cuttack Municipality under the provisions of the Orissa Municipal Act, 1950 (XXXIII of 1950) (hereinafter called the Act) and the 27 appellants in Appeal No. 526 of 1960 were declared elected as Councillors. From amongst them Manmohan Mishra was elected the Chairman and Mahendra Kumar Sahu the Vice-Chairman Mr. B. K. Bose, who is an Advocate practising in Cuttack and a resident with in the municipal limits of Cuttack, had contested the said elections as a candidate from Ward No. 13. He was, however, defeated. There upon, he presented an application to the High Court (O. J. C. No. 72 of 1958) to set aside the said elections. To this application he impleaded the State of Orissa and the 27 elected Councillors. In his petition. Mr. Bose alleged that the elections held for the Cuttack Municipality were invalid and he claimed an injunction restraining the 27 respondents from functioning as elected Councillors and the Chairman and the Vice Chairman amongst them from discharging their duties as such. The respondents to the petition traversed the allegations made by Mr. Bose and urged that the elections were valid and that the petitioner was not entitled to any relief under Art. 226.

(3.) The High Court upheld the contentions raised by the petitioner. It came to the conclusion that the qualifying date for determining the age qualification of voters under S. 13 of the Orissa Municipal Act had been published by the State Government only on the 10th January, 1958, though the preliminary electoral rolls had already been published on December 23, 1957. In consequence, the claims and objections had been invited for a period of 21 days from the said date to the 12th of January, 1958. As a result of the delay made in publishing the qualifying date for the determination of age qualification of voters, the citizens of Cuttack were, in fact, given only two days' time to file their claims and objections, whereas under the relevant Election Rules they were entitled to 21 days. The High Court also came to the conclusion that this drastic abridgement of the period for filing claims and objections had materially affected the results of the elections, by depriving several voters of their right to be enrolled as such. The High Court also found that whereas a candidate was entitled to 15 clear days for the purpose of canvassing, the notification issued under the Orissa Municipal Election Rules curtailed this period to 14 days. According to the High Court, the respondents to the petition had failed to show that the results of the elections had not and could not have been affected by the contravention of the said Rules. On these findings, the elections-in question were set aside and appropriate orders of injunction issued as claimed by the petitioner. This judgment was pronounced on December 11, 1958.