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Keshav Mahadev Sonalkar Vs. Lakshman Narayan Phadnis - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 627 of 1927
Judge
Reported inAIR1930Bom378; (1930)32BOMLR614
AppellantKeshav Mahadev Sonalkar
RespondentLakshman Narayan Phadnis
Excerpt:
.....education act (bom. iv of 1923), rule 13-municipal councillor-din-qualification-appointment on school board-chairman of school board, not competent to decide on disqualification.;the plaintiff was elected a member of a district municipality on february 12, 1925, for a period of three yews commencing from april 1, 1925; but it was held on august 26, 1925, that he was disqualified for election in virtue of section 15 (f) of the bombay district municipal act, 1901, though the disqualification ceased from march 25, 1925, meanwhile, on may 9, 1925, the plaintiff was elected as a general representative on the school board by the municipality, under the primary education act of 1923, the plaintiff served at first on the school board, but from september 23, 1925, defendant, who was the..........from april 1, 1925 ; and on may 9, 1925, the municipality elected him to be a member of the school board. on august 26, 1925, on a petition to the district; judge, it was held that he was disqualified under section 15(f) of the district municipal act for election on the municipality by reason of his interest in a printing contract which the municipality had entered with his father with whom he was joint. from september 23, 1925, the defendant no. 1, appellant mr. sonalkar, chairman of the school board jalgaon, refused to send him notices of the meetings of the school board or to allow him to serve thereon, notwithstanding a subsequent resolution of the municipality in favour of the plaintiff-respondent. accordingly in 1926 the plaintiff-respondent no. 1 brought a suit against the.....
Judgment:

Madgavkar, J.

1. The plaintiff-respondent, Mr. Phadnis, was elected a member of the Municipality of Jalgaon on February 12, 1925, for a period of three years commencing from April 1, 1925 ; and on May 9, 1925, the Municipality elected him to be a member of the School Board. On August 26, 1925, on a petition to the District; Judge, it was held that he was disqualified under Section 15(f) of the District Municipal Act for election on the Municipality by reason of his interest in a printing contract which the Municipality had entered with his father with whom he was joint. From September 23, 1925, the defendant No. 1, appellant Mr. Sonalkar, Chairman of the School Board Jalgaon, refused to send him notices of the meetings of the School Board or to allow him to serve thereon, notwithstanding a subsequent resolution of the Municipality in favour of the plaintiff-respondent. Accordingly in 1926 the plaintiff-respondent No. 1 brought a suit against the Chairman Mr. Sonalkar, as defendant No. 1 appellant and defendant No. 2 the School Board for a declaration that he continued to be a member of the School Board and was entitled to work on it and for invalidating all the resolutions from September 29 onwards and a mandatory injunction accordingly.

2. The defendant-appellant relied on the disqualification under Section 15(f) against the plaintiff. The defendant No. 2 School Board took no part in the suit.

3. The trial Court held that the plaintiff's disqualification to serve on the Municipality necessarily implied a similar disqualification to serve on the School Board, and dismissed the suit, ordering each party to pay its own costs as no malice on the part of defendant No. 1 was proved. In appeal by the plaintiff, the District Judge took a contrary view, and held that the plaintiff's disqualification from the Municipality did not disqualify him from being a member of the School Board and that the disqualification was not proved to have existed on the necessary dates in the case of the School Board, allowed the appeal, and granted declarations with costs in the District Court against defendant No. 1. Defendant No. 1 appeals.

4. The only contention for the appellant is that the plaintiff's disqualification' to serve on the Municipality necessarily included his disqualification to serve on the School Board, particularly of one bill in respect of printing remained to be paid to the father of plaintiff-respondent, and that the votes cast for the plaintiff must along with his election be taken to be null and void so as to justify the defendant-appellant in treating the plaintiff-respondant's election a nullity. The appellant's case fails, in own opinion, on two grounds : Firstly, the decision of disqualification for the Municipality did not necsssarily imply nor was the appellant competent to decide the question of the plaintiff's disqualification for the School Board. The Board is constituted for every local authority under Section 3 of Bom. Act IV of 1923. Under Government Resolution, 2534, dated October 10, 1924, Educational Department, the Jalgaon School Board consisted of nine members four of whom were general representatives, none being necessarily members of the local authority, that is, the Municipality, Rule 13 of Bom. Act IV of 1923 is as follows :

No person shall be a member of a 'School Board constituted under' a local authority, unless (1) he ordinarily resides within the district and (2) is not disqualified to be a member of the Municipality under Section I5 of the Bombay District Municipal Act.

5. Section 15 of the Bombay District Municipal Act runs thus:

No person may be a councillor-...(J) who, save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Municipality, or in any contract or employment with or under, or by, or on behalf of, a Municipality.

6. All that the District Judge decided in the present case was that the father with whom the plaintiff is joint had a Municipal contract for printing, which expired on March 25, ]925, thereby disqualifying the plaintiff also for the election on February 12, 1925. It does not, however, follow that the disqualification continued from April 1, 1925, onwards and existed on May 9, 1925, or about a week before the date of the nomination of the plaintiff to the School Board. The mere fact that one of the bills remained unpaid did not necessarily cause the disqualification to continue. ' Where a contractor has wholly performed his part of the contract and nothing remains to be done under it except that he is to receive payment, his disqualification comes to an end:' Cox v. Truscott (1905) 92 L.T. 650.

7. Secondly, as regards the appellant's power to decide on the disqualification of the plaintiff for the School Board, in the absence of any statutory authority such as the District Judge in the case of Municipal elections, the presumption would be in favour of suits in the ordinary Courts of law and not of authority vested in the Chairman such as defendant No. 1 appellant. The Speaker in the House of Commons and the Mayor in the case of Municipal Corporations have no such authority, jurisdiction being in the former case vested in the King's Bench Division or the High Court of Justice and in the latter in the Commissioner under the Municipal Corporation Act of 1882. The Chairman, being particularly a pleader, ought to have known that he had no such authority. Whatever his own opinion as to the disqualification of the plaintiff, he was not justified in refusing to give him notices of the meetings from September onwards and in refusing to allow him to attend the meetings or to vote. As the term of the School Board has, however, ended, the question is not now of much practical importance between the present parties. Its only bearing is on the question of costs. On the merits, therefore, the decree of the lower appellate Court is, in our opinion, correct.

8. In regard to costs, the plaintiff has succeeded in his appeal to the District Court and the defendant appellant has failed here. In view of the finding of the lower Court as to the absence of malice, we order that each party should pay his own costs in the trial Court. The defendant No. 1, appellant, will, however, pay the plaintiff-respondent's costs here and in the District Court.


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