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1953 DIGILAW 164 (PAT)

Ranendra Nath Roy Chowdhury v. State Of Bihar

1953-11-26

AHMAD, V.RAMASWAMI

body1953
Judgment 1. In this case the petitioner has moved this Court for a writ under Article 226, Constitution of India directing the respondents to prepare a correct electoral roll for the special constituency of registered trade unions in the town of Patha in accordance with the provisions embodied in Section 8 (1) (b) (ii) of the Patna Municipal Corporation Act (Bihar Act 13 of 1952). The petitioner has also asked for a writ restraining the respondents from holding election in that special constituency until the electoral roll is prepared in accordance with the provisions of the statute. Cause has been shown by the Advocate General on behalf of the State of Bihar and other respondents to whom notice had been given. 2. Section 8 of the Act enacts that the Corporation shall consist of fifty-two Councillors including three Councillors elected severally by the special constituencies, namely, (i) one Councillor to be elected by the Bihar Chamber of Commerce; (ii) one Councillor to be elected by the registered trade unions having their registered offices at Patna; and (iii) one Councillor to be elected by the registered graduates of the Patna University having their normal place of residence at Patna. It appears that under the rule making power conferred under Section 540 of the Act the State Government have framed rules called the Patna. Municipal Corporation Election (Special Constituencies) Rules, 1953, These rules were published on 27-7-1953 in the Gazette notification No. M/R2--402/52--362--L/S.G. Rule 5 states that: "(1) A person shall be deemed to be qualified to be enrolled on the electoral roll of the Registered Trade Unions Constituency, if and only if, he-- (a) is, and has for at least twelve months preceding the first day of March of the year in which the electoral roll is prepared a member, honorary member or official of a Registered Trade Union; and (b) is not, in the case of an ordinary member of the union, in arrear with his subscription thereto. (2) A person shall not be qualified to be included in the electoral roll if he is employed wholly or mainly in a clerical, supervisory, recruiting or administrative capacity of the Registered Trade Union." Rule 8 (2) provides: "The Registration Officer shall publish in two Hindi newspapers published at Patna a notice calling upon all registered Trade Unions having their registered office at Patna to submit within such period and in such form as may be specified by him in this behalf a list of their members entitled to be enrolled on the electoral roll for the Registered Trade Unions Constituency with such evidence as may be necessary to prove that the unions concerned are qualified to participate in the election from the said constituency." The petitioner is the President of the Patna Electric Supply Workers Union and four other Trade Unions with their registered offices at Patna. The petitioner asserts that Rules 5 and 3 (2) are illegal and ultra vires in so far they provide for preparation of electoral roll for members of registered trade unions and not for trade unions in the corporate capacity. It is alleged in the affidavit that the Administrator sent notices to various trade unions including the trade unions of which the petitioner is the President calling upon them to furnish a list of the members of their respective unions. The petitioner sent a representation to the Administrator of Patna Municipal Corporation and also the Government of Bihar maintaining that the rules were illegal. This representation was rejected and pn 28-10-1953, the District Magistrate of Patna acting as Registration Officer sent a notice to the various unions forwarding a list of voters entitled to vote in the constituency and pointed out that the members of the unions of which the petitioner is the President have not got themselves enrolled. In these circumstances the petitioner has moved this Court for a writ in the nature of mandamus to direct the respondents to prepare a correct electoral roll showing the names of the registered trade unions as voters of the special constituency under the provisions of Section 8 (1) (b) (ii) of the Act. 3. The question presented for determination in this case is whether the individual members of the registered trade unions are entitled to be placed on the electoral roll and to elect the Councillor for the special constituency. 3. The question presented for determination in this case is whether the individual members of the registered trade unions are entitled to be placed on the electoral roll and to elect the Councillor for the special constituency. Section 8 (1) (c) states "The Corporation shall consist of the following namely.............. Three Councillors elected severally by the following special constituencies, namely : (i) one Councillor to be elected by the Bihar Chamber of Commerce; (ii) one Councillor to be elected by the registered trade unions having their registered offices at Patna; and (iii) one Councillor to be elected by the registered graduates of the Patna University having their normal place of residence at Patna." The argument of the Advocate General is that the expression "one Councillor to be elected by the registered trade unions having their registered offices at Patna" should be interpreted to mean "one Councillor to be elected by the members of the registered trade unions having their registered offices at Patna." The view put forward by Mr. B. C. Ghosh on behalf of the petitioner is that the meaning of Section 8 (c) (ii) is that one Councillor should be elected by the registered trade unions in their corporate capacity and not by individual members of the trade unions. In our opinion, the contention put forward by Mr. B. C. Ghosh is correct. If the legislature contemplated that the members of the trade unions should exercise the franchise in their individual capacity, there is no reason why the legislature did not clearly say so in Section 8 (1) (c) (ii) of the Act. The argument of the Advocate General really means that we must add the phrase "the members of" before the expression "the registered trade unions" in that section. But that would be legislation, not interpretation. If a gap is disclosed, the remedy lies in an Amending Act. It is not the function of the Court to fill up the gap -- it would be an usurpation of legislative power under the thin guise of interpretation. To adopt the language of Lord Justice Denning in a recent English case- "A Judge must not alter the material of which a statute is woven, though he can and should iron out the creases." The registered trade union is a distinct legal entity. To adopt the language of Lord Justice Denning in a recent English case- "A Judge must not alter the material of which a statute is woven, though he can and should iron out the creases." The registered trade union is a distinct legal entity. Under the provisions of Sec.13 of the Trade Unions Act a trade union is a body corporate by the name under which it is registered and is a legal entity distinct from the members of which the trade union is composed. In our opinion, the true meaning of Section 8 (1) (c) (ii) is that the Councillor is to be elected by the registered trade unions and not by the members of the registered trade unions. This view as to the interpretation of Section 8 (1) (c) (ii) is supported by a consideration of the language of Section 8 (1) (c) (iii). Section 8 (1) (c) (iii) refers to the election of one Councillor by the registered graduates of the Patna University having their normal place of residence at Patna. In the case of the Patna University, therefore, the registered graduates take part in electing a Councillor and not the Patna University in its corporate capacity. The contrast in the language used in Sections 8 (1) (c) (ii) and 3 (1) (c) (iii) also demonstrates that so far as the registered trade unions are concerned, the election is to be made not by the members of the registered trade unions but by the trade unions-acting in their corporate capacity. As to the manner in which the trade unions should exerciser their vote, there is provision made under Sec.12 of the Act. Sec.12 states: "If a company or firm or any other association or body of individuals is enrolled on the electoral roll, its vote shall be exercised by any one individual authorised by it in this behalf and named as such in the electoral roll, unless he is disqualified under Sub-section (3) of Sec.11." Reading Section 8 (1) (c) (ii) in the context of Sec.12 it is manifest that a registered trade union may exercise its vote through an individual authorised by it in this behalf and named as such in the electoral roll. The Advocate General referred in the course of argument to Sec.11 (2) which enacts that the qualifications of a person entitled to vote in a special constituency "shall be such as may be prescribed". Under Sec. 4 (jj) of the Act "prescribed" means prescribed by rules or bye-laws made under the Act, and under Sec. 540 the State Government have authority to make rules for the purpose of carrying into effect the provisions of the Act. The Advocate General put forward the argument that the State Government are, - therefore, entitled to prescribe a rule as to who should be the voters in a special constituency -- in other words, the State Government may prescribe by rule that members of the registered trade unions shall be enrolled as voters in the special constituency. In our opinion, this argument is not correct. It is true that Sec.11 (2) read with Section 540 authorises the State Government to make rules prescribing the Qualifications of a person entitled to vote. If the members of the trade unions are not entitled to vote, the State Government have no authority to prescribe a rule that the members of the trade unions shall have the franchise to elect a Councillor for the special constituency. To put it differently, the State Government have authority under the Act to frame a rule prescribing the qualifications of persons entitled to vote under the Act and not to prescribe a rule stating who are the persons entitled to vote for the special constituency. 4 For these reasons we are of opinion that Rules 5 and 8 prescribed by the Stats Government under Sec. 540 of the Act are ultra vires to the extent that these rules provide for members of the registered trade unions to be entered on the electoral roll of the special constituency. We are further of opinion that the draft electoral rolls prepared by the Registration Officer are ultra vires of Section 8 (1) (c) (ii) of the Act, and that the Registration Officer has no jurisdiction to prepare the electoral roll of the special constituency on the basis that the members of the registered trade unions should be entered therein. We are further of opinion that the draft electoral rolls prepared by the Registration Officer are ultra vires of Section 8 (1) (c) (ii) of the Act, and that the Registration Officer has no jurisdiction to prepare the electoral roll of the special constituency on the basis that the members of the registered trade unions should be entered therein. Upon these grounds we think that a writ should be issued under Article 220 quashing the proceedings of the Registration Officer and the preparation of electoral roll with regard to the special constituency of the registered trade unions. A writ in the nature of mandamus should also be issued to the State Government and to the other respondents commanding them to proceed in the matter of election of the Councillor from the special constituency of registered trade unions in accordance with law. 5. The application is accordingly allowed but we do not propose to make any order as to costs.