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Pundlik Vishwanath Vs. Mahadeo Binjraj and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 378 of 1957
Judge
Reported inAIR1959Bom2; ILR1959Bom283
ActsCity of Nagpur Corporation Act, 1950 - Sections 81, 428 and 428(1); Constitution of India - Article 226; City of Nagpur Corporation Act, 1948 - Sections 9, 10, 12, 12(1), 12(2) and 14; City of Nagpur Corporation Rules - Rules 4(1) and 4(3) and 32; Representation of the People Act; Calcutta Municipal Act, 1923 - Sections 29(8) and 46
AppellantPundlik Vishwanath
RespondentMahadeo Binjraj and ors.
Appellant AdvocateA.S. Bobde, Adv.
Respondent AdvocateV. Raje and ;S.M. Hazarnavis, Advs.
Excerpt:
.....as one roll, and therefore, according to him, even though the petitioner was not enrolled in the special constituency in question, still he satisfied the condition mentioned in section 428, and therefore, the election petition could not be dismissed on the basis of the preliminary objection raised by the respondent. since it would be ridiculous for an elector of one constituency to complain about an irregularity in another constituency, the commissioners were disposed to agree with this argument but held that rule 32(a) (now section 81, ibid) as framed places no such limitation on the word 'elector. even in the above passage, it has been mentioned that prima facie it is ridiculous for an elector of one constituency to complain about an irregularity in another constituency. therefore,..........said section. out of the forty-five elected councillors, one councillor is to be elected by the special constituency of the nagpur chamber of commerce. the election of a councillor from the nagpur chamber of commerce is regulated by rules promulgated under notification no. 230-1956-m-xiii dated 15-1-1952. respondent no. 1 mahadeo binjraj modi was so declared to have been elected as councillor to the corporation in the election held in the year 1957. the petitioner pundlik vishwanath pandharipande filed an election petition challenging the election of the respondent no. 1 mahadeo binjraj modi under section 428 of the city of nagpur corporation act, 1948. in the said election petition proceedings, a preliminary objection was raised on behalf of the respondent that the election petition.....
Judgment:

G.B. Badkas, J.

1. It is necessary to state a few facts for the proper appreciation of the point involved in this special application. The elections to the Corporation of the City of Nagpur were held in the year 1957. Under Section 9 of the City of Nagpur Corporation Act, 1948, the Corporation consists of fifty-seven Councillors, among whom are included forty-five elected councillors and six appointed councillors as given in the said section. Out of the forty-five elected Councillors, one Councillor is to be elected by the special constituency of the Nagpur Chamber of Commerce. The election of a Councillor from the Nagpur Chamber of Commerce is regulated by rules promulgated under Notification No. 230-1956-M-XIII dated 15-1-1952. Respondent No. 1 Mahadeo Binjraj Modi was so declared to have been elected as Councillor to the Corporation in the election held in the year 1957. The petitioner Pundlik Vishwanath Pandharipande filed an election petition challenging the election of the respondent No. 1 Mahadeo Binjraj Modi under Section 428 of the City of Nagpur Corporation Act, 1948. In the said election petition proceedings, a preliminary objection was raised on behalf of the respondent that the election petition filed by Pundlik Vishwanath pandharipande was not competent for the reason that the said Pundlik Vishwanath was not an elector and was not enrolled as an elector in the electoral roll prepared for election from the Nagpur Chamber of Commerce constituency. This objection prevailed with the learned Additional District Judge, who was dealing with the election petition. The learned Additional District Judge accordingly dismissed the election petition on the ground that Pundlik Vishwanath could not file such election petition against the respondent No. 1 for the reason that he was not enrolled in the municipal election roll of the special constituency from which the Respondent No. 1 was elected. The instant special civil application has been directed against the order passed by the learned Additional District Judge.

2. Mr. A.S. Bobde, learned Counsel appearing for the petitioner, contends that the order challenged is patently erroneous in law for the reason that the learned Lower Court erred in interpreting Section 428 of the City of Nagpur Corporation Act, 1948, and accordingly dismissing the election petition. It will be convenient to reproduce Section 428. The section provides:

'428(1) If the qualification of any person declared to be elected for being a Councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Chief Executive Officer of a nomination or of the improper reception or refusal of a vote, or for any other cause, 'any person enrolled in the municipal election roll may,' at any time within fifteen days from the date on which the election of a Councillor is notified under Section 16, apply to the District Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected, had contested the election from the same ward or constituency, as the case may be.'

(The remaining portion of the section is not reproduced, the same being not relevant for the purpose of this case. The underlining (here in quotation marks--Ed) of the portion above is ours).

3. Mr. Bobde contends that the expression 'any person enrolled in the municipal election roll' includes the petitioner, because, according to him, he is enrolled as an elector in a municipal election roll.

4. It is the case of the petitioner that he is enrolled as a voter in the Sitabuldi Ward No. 3 in the current electoral roll of the Corporation. It is admitted that the petitioner has not been enrolled as elector in the electoral roll of the special constituency of the Nagpur Chamber of Commerce. According to Mr. Bobde, the expression 'municipal election roll' means all the rolls taken together as one roll, and therefore, according to him, even though the petitioner was not enrolled in the special constituency in question, still he satisfied the condition mentioned in Section 428, and therefore, the election petition could not be dismissed on the basis of the preliminary objection raised by the respondent. Mr. Bobde further contends that the learned Lower Court went wrong in going to various provisions of the Act for interpreting the above expression when, according to him, there was no ambiguity whatsoever in Section 428 itself. The learned Additional District Judge has held that the expression 'any person enrolled in the municipal election roll' refers to a person enrolled in a particular election roll or electoral roll of a particular constituency on the basis of which the election, challenged by way of election petition, was held. The question, therefore, arises whether the wordings of Section 428 leave no room or an ambiguity for interpreting the section in the way interpreted by the learned Lower Court, and if the expression is so specific, clear, unambiguous and unequivocal. As we shall show later there is no one election roll styled as 'the municipal election roll' for the purpose of election to the Corporation. Therefore, the expression 'municipal election roll' does not find place in any of the provisions of the Act which deal with election to the Corporation or preparation of election rolls for the election. The question, therefore, does arise as to what this expression 'the municipal election roll' means. The expression is not defined in the Act. It cannot therefore be said that the rule of literal interpretation could be safely followed in this case. When the expression itself does not represent the actual fact of there being some such thing as 'one municipal election roll,' we have to find out what actually is meant by this expression, or in other words, what particular roll for purposes of election is indicated by this expression. For resolving this ambiguity, therefore, it is necessary to examine the scheme of the Act and interpret this expression in the light of the content of the provisions of this Act.

5. As observed at p. 166 of Craies on Statute Law, Fifth Edition:

'It cannot, I think be denied that, for the purpose of construing any enactment, it is right to look, not only at the provision immediately under construction, but at any others found in connection with it which may throw light upon it, and afford an indication that general words employed in it were not intended to be applied without some limitation. General words therefore 'must be understood as used with reference to the subject-matter in the mind of the Legislature and limited to it.''

To the similar effect is the observation found at page 17 of Maxwell on Interpretation of Statues, 10th Edition:

'Language is rarely so free from ambiguity as to be incapable of being used in more than one sense, and to adhere rigidly to its literal and primary meaning in all cases would be to mis its real meaning in many.'

The scheme of the Act becomes clear from the provisions, as regards the defining of the constituencies, the preparation of electoral rolls, the election of candidates from particular constituencies etc. Section 9 of the Act deals with constitution of the Corporation which is to consist of 57 Councillors, among whom are included 45 elected Councillors. Out of these 45 elected Councillors 42 are to be elected from wards as may be prescribed, one to be elected by the special constituency of the Nagpur Chamber of Commerce and two to be elected by the registered trade unions having their registered officers at Nagpur. Section 10 provides:

'The State Government may, by rules made under this Act, provide for the division of the City into wards, for the number of members to be elected for each ward, for the preparation of electoral rolls for the wards and special constituencies and for the exercise of votes by persons holding qualifications in more than one ward or special constituency:

(i) no person shall be entitled to be enrolled on the electoral roll of more than one ward,

(ii) no person shall be entitled to be enrolled on the electoral roll of a ward unless he resides in that ward, and

(iii) no person shall be entitled to be enrolled on the electoral roll of a ward unless he has paid all taxes due by him to he Corporation at the end of the financial year immediately preceding that in which the electoral rolls are prepared'.

6. Section 12 provides qualifications and disqualifications of voters and is worded as below:

'12. (1) Every person, who has attained the age of twenty-one years on the first day of January of the year in which the electoral rolls of the Corporation have been prepared and who resides in the City, shall be qualified as a voter for the purpose of the electing Councillors of the Corporation other than Councillors representing special constituencies.

(2) The qualifications of a person entitled to vote at an election of a Councillor representing a special constituency shall be such as may be prescribed.

(3) Notwithstanding anything contained in Sub-section (1), or Sub-section (2), no person shall be entitled to vote at any election if:

(a) .....

(b) .....

(c) .....

(d) his name has not been entered in the current electoral roll of the ward or special constituency in which he wishes to vote.'

7. Section 14 provides:

'14. (1) A candidate for election in a ward shall be a person residing within the city and shall be a person enrolled as a voter on the electoral roll of a ward in the Corporation.

(2) A candidate for election in a special constituency shall be a person residing within the City and shall be a person enrolled as a voter on the electoral roll of such special constituency.'

The rest of the section is not necessary for being reproduced.

8. Rules for the preparation of electoral rolls for the wards and Trade Union Special Constituency in the City of Nagpur are published at page 67 of the book of Rules and Bylaws of the Municipal Corporation Nagpur. The said rules provide:

'1. (1) The Chief Executive Officer shall, unless otherwise directed by the State Government, start the preparation of an electoral roll for each of the wards into which the City is divided and for the Trade Union special constituency created under Section 9, six months before the date on which the term of the Corporation is due to expire.

(2) Every such roll shall contain the names of all persons who appear to be entitled to vote in the ward or special constituency for which the roll is under preparation.'

9. At p. 35 of the book of Rules and Bylaws are given the rules relating to the election of Councillors. Rule 4(3) deals with receiving of nomination papers for purposes of election of a Councillor. These rules also give a form of the nomination paper which is to be filled in by the proposer and the seconder. Rule 4(3) prescribes that the Returning Officer, on receiving a nomination paper under Sub-rule (1) shall satisfy himself that the name and number of the electoral roll of the candidate, his proposer and seconder, as entered on the nomination paper, are the same as those entered in the electoral roll. The form of the nomination paper prescribed by the rules indicates that the proposer and the seconder should be the persons whose names find place in the current electoral roll of the ward or special constituency from which a councillor has to be elected. On p. 19 of the same book are given the rules for the preparation of electoral roll and for the election of a Councillor by the Nagpur Chamber of Commerce. These rules provide for the preparation of electoral roll of the special constituency and for the election from this constituency.

10. It would appear from the above provisions of the Act and the rules that, for purposes of election,t eh City is divided into separate wards and there are separate special constituencies, and for each such ward or special constituency, a separate electoral roll is prepared on the basis of which the election takes place. It is also clear that the candidate is elected as a Councillor from a particular ward or constituency by the persons enrolled as electors for that particular ward or constituency. Similarly, even the persons who are to propose or second a candidate for election, have to be the electors from that constituency. Nowhere in the provisions of the Act or the rules there is any such conception of one municipal election roll. The expression occurs for the first time in Section 428. Therefore, this expression has to be interpreted and understood with reference to the electoral rolls prepared for different wards and special constituencies. There being no such thing as 'the municipal election roll,' it is difficult to conceive of a person who can be said to be enrolled in such municipal election roll. What we can conceive of is a person enrolled in a particular electoral roll relating to a particular ward or a special constituency as is provided in the Act and the rules. Therefore, when we interpret Section 428, the expression in controversy has to be interpreted in a reasonable manner and in the context of the other provisions in the Act and the rules, and if so interpreted, the expression obviously, means that the person indicated in Section 428 is a person who is enrolled in a particular electoral roll in respect of a particular ward or special constituency from which a particular Councillor has been elected and whose election is being challenged under Section 428 of the Act. Section 428 does not say 'any person enrolled in any election roll.' On the contrary it says 'any person enrolled in the municipal election roll.' What that election roll is has to be understood with refernce to the election petition filed which challenges the election of a particular Councillor. To give any other meaning to this expression would mean misreading the section as it stands. Mr. Bobde, learned Counsel appearing for the petitioner, laid emphasis on the expression 'municipal election.' According to him, because of this adjective 'municipal' and use of the word 'election' in place of 'electoral' Section 428 should be interpreted as meaning that any person enrolled in any roll relating to any ward can challenge the election of a councillor elected from any constituency. This will be reading much more in the section than what it really connotes. To base an argument on the use of word 'election' in place of 'electoral' is attempting to find difference without distinction. Election roll is the same thing as the electoral roll. The use of the adjective 'municipal' cannot also make any difference. In support of his argument Mr. A.S. Bobde drew our attention to the use of the word 'municipal' in relation to various properties which stand vested in the Corporation, such as, municipal drains, municipal slaughter-house, municipal bridges and so on. We do not see any analogy between the expression 'municipal drain' and 'the municipal election roll.' The expression 'the municipal election roll' means only a roll prepared for a ward or special constituency meant for being used for election to the Corporation. No other interpretation can be possible from this use of the word 'municipal' in the expression 'the municipal election roll.' Mr. Bobde then read out to us a passage from the Law of Elections and Election Petitions in India by Nanak Chand Pandit at p. 375 which is as follows:

'Can an 'elector' of one constituency present an election petition in another constituency? This question was raised in Midnapore South Case, 2 H.I.E.P. 185 at p. 187 (A) where it was argued that the word 'elector' means an elector of the constituency. Since it would be ridiculous for an elector of one constituency to complain about an irregularity in another constituency, the Commissioners were disposed to agree with this argument but held that Rule 32(a) (now Section 81, ibid) as framed places no such limitation on the word 'elector.''

The passenger indicates that the point involved in the case mentioned in the above paragraph was under Rule 32(a), which now represents Section 81 of the Representation of the People Act. What has been held in the case cited in the passage is that Rule 32(a), which was being interpreted in that section, placed no limitation on the word 'elector' as contained in that rule. This was not a case of interpretation of a provision similar to one as is contained in Section 428 of the City of Nagpur Corporation Act, 1948. In Section 428 we get an expression, 'the municipal election roll,' and the point before us is about the interpretation of this expression, there being no such one roll prepared under the provisions of the City of Nagpur Corporation Act or the rules framed thereunder. Even in the above passage, it has been mentioned that prima facie it is ridiculous for an elector of one constituency to complain about an irregularity in another constituency. The observation is based on sound principle of election law. It does appear that a right to elect a candidate and a right to reject a candidate should generally go together on general principle. Challenge to an election by means of election petition is apparently a step for achieving the rejection of a candidate declared elected in the election process. Therefore, unless it is otherwise clearly provided by the Act or the Rules, for interpreting a particular provision involving a question of the nature before us, one has to be guided by the general principle also along with the other provisions of the Act which may be called in aid.

11. Mr. Hajarnavis, learned Counsel appearing for the Corporation, has brought to our notice a case reported in Re: Champalal v. Mohanlal, 41 Cal W.N. 488 (B). At p. 491 of the reported decision it is observed:

'Section 46 of the Calcutta Municipal Act provides that if the validity of any election is questioned, any person enrolled in the electoral roll may apply within eight days to the High Court for testing the validity of that election. In an election petition which was before me recently, I held that it was only a person enrolled in the electoral roll of the constituency in which the validity of the election was questioned who was entitled to make that application.'

Leaned Counsel has not been able to place before us the previous decision indicated in the above passage. The observation, however, leaves no doubt about the view taken as regards the interpretation of Section 46 of the Calcutta Municipal Act, Section 46 of the Calcutta Municipal Act, 1823 provides:

'If there is any dispute as to whether any person whose name is published under Sub-section (8) of Section 29 is qualified to be elected a Councillor, or if the validity of any election is questioned, whether by reason of the commission of any corrupt practice by a candidate or his agent or by any other person or by reason of the improper rejection of a nomination or of the improper reception or refusal of a vote, or for any other cause, any person enrolled in the electoral roll may, at any time within eight days after the said publication, apply to the High Court......'

The provisions of Section 428 of the City of Nagpur Corporation Act and Section 46 of the Calcutta Municipal Act are mostly parallel excepting for the word 'municipal' and the use of the word 'election' in place of 'electoral' in Section 428 of the City of Nagpur Corporation Act. As we have already said, these two words 'municipal' or 'election' have no material significance for interpreting the expression 'the municipal election roll' which, according to us, means an electoral roll of a particular constituency prepared for Corporation election.

12. We, therefore, feel no doubt that the petitioner, not being an elector in the special constituency from which the respondent No. 1 was elected, could not challenge the election by means of an election petition under Section 428 of the City of Nagpur Corporation Act, 1948. The learned lower Court has, therefore, rightly held that the petitioner could not challenge the election of the Respondent No. 1 by an election petition filed under Section 428 of the City of Nagpur Corporation Act, 1948. There is thus no error in the order challenged in this special civil application.

13. In the result, therefore, the petition stands dismissed with costs. The petitioner shall pay the costs of the Corporation separately and that of the Respondents Nos. 1 and 2 separately for whom Mr. Raje is appearing.

14. The petitioner has also prayed in his petition a relief for a writ of quo warranto against the respondent No. 1 and a direction restraining him from acting as a Councillor of the Nagpur Corporation and/or represent the defunct Chamber. This question cannot be considered in this petition, particularly as Respondent No. 1 has not assumed Officer, as we are informed. This prayer is rejected in limine. The petitioner will be at liberty to apply, if he is so advised, in case and when the Respondent No. 1 assumes Office.

15. Petition dismissed.


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