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In Re: the Specific Relief Act; in Re: Sharafaly Mamooji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1910)12BOMLR737
AppellantIn Re: the Specific Relief Act; in Re: Sharafaly Mamooji
Excerpt:
.....as amended by bombay act v of 1905), sections 33, 34- municipal election petition-jurisdiction of chief judge of small causes court at bombay-'extent of discretion.;at a general election for municipal councillorship for a ward in the city of bombay, eight out of the fifteen candidates were declared-duly elected. a petition was than presented to the chief judge;of the bombay court of small causes, under section 33 of the city of bombay municipal act, 1888, praying that the election of the eight councillors or of one or more of them might be set aside and a scrutiny held. the inquiry was held and the election of two out of the eight successful candidates was sat aside. the chief judge then came to the conclusion that under section 33 he was only empowered to consider the claim of the..........petition was then presented under section 33 of the act by one husenbhai abdulabhai laljee to the chief judge of the small causes court praying that the whole election or the election of the eight councillors or of one or more of them might be set aside and a scrutiny held. the fifteen candidates and the municipal commissioner were made respondents. the chief judge held an inquiry and set aside the election of lakhamsey nappoo and khimji hirji kayani who occupied the 3rd and 6th positions amongst the successful candidates.3. the chief judge then came to the conclusion that under section 33 (2) he was only empowered to consider the claim of fazulbhai joomabhai laljee, the candidate obtaining the next highest number of votes to the candidates returned as elected, to be held to be deemed.....
Judgment:

Macleod, J.

1. In January last the triennial election of eight Councillors for B. Ward Mandvi to the Municipal Corporation of the City of Bombay was held according to the provisions of the City of Bombay Municipal Act III of 1888. There were fifteen candidates and the result of the poll was duly declared by the Municipal Commissioner under Section 28 (/) of the Act. Under Section 28 (q] the first eight candidates were deemed to be elected.

2. A petition was then presented under Section 33 of the Act by one Husenbhai Abdulabhai Laljee to the Chief Judge of the Small Causes Court praying that the whole election or the election of the eight Councillors or of one or more of them might be set aside and a scrutiny held. The fifteen candidates and the Municipal Commissioner were made respondents. The Chief Judge held an inquiry and set aside the election of Lakhamsey Nappoo and Khimji Hirji Kayani who occupied the 3rd and 6th positions amongst the successful candidates.

3. The Chief Judge then came to the conclusion that under Section 33 (2) he was only empowered to consider the claim of Fazulbhai Joomabhai Laljee, the candidate obtaining the next highest number of votes to the candidates returned as elected, to be held to be deemed to have been elected, but as he held that a valid cause of objection existed to Fazulbhai being declared elected he declined to direct that Fazulbhai should be deemed to be elected.

4. He further held that as there was no other candidate according to the interpretation he placed on the section who could be deemed to be elected, proceedings for filling up the two vacancies would have to be taken under Section 34 of the Act.

5. Sarafally Mamooji who stood tenth on the list as notified by the Commissioner then presented a petition to this Court under Section 45 of the Specific Relief Act asking for an order that the Chief Judge do proceed to direct under Section 33 of the Bombay Municipal Act that the petitioner shall be deemed to have been duly elected and for such further and. other relief as the circumstances of the case might require.

6. On the 13th June I granted a rule against the Chief Judge and directed that notice should be given to the Municipal Commissioner and also to Sir Jarnsetji Jeejeebhai and Dr. Rajabally V. Patell who had been appointed by the Municipal Corporation purporting to act under Section 34 to fill the vacancies caused by the decision of the Chief Judge. The rule was argued before me on the 23rd June. Mr. K. Kemp appeared to show cause on behalf of the Chief Judge, Mr. Jardine, acting Advocate General, appeared to watch the proceedings on behalf of the Municipal Commissioner while the two gentlemen above-mentioned had intimated to the petitioner that they did not intend to take any part in the proceedings.

7. It was first contended by Mr. Kemp that the Court had no jurisdiction to entertain the petitioner's application. Now under Section 45 of the Specific Relief Act the High Court of Bombay may make an order requiring any specific act to be done or forborne within the local limits of its Ordinary Original Civil Jurisdiction by any inferior Court of Judicature provided that (a) an application for such order be made by some person whose property franchise or personal right would be injured by the forbearing or doing (as the case may be) of such specific act and (b) that such doing or forbearing is, under any law for the time being in force, clearly incumbent on such Court in its public charater. Rule 530 of the Bombay High Court Rules prescribes the manner in which the application should be made. The Small Causes Court is an inferior Court of Judicature within the local limits of its Ordinary Original Civil Jurisdiction, and the petitioner's franchise has been injured by the Chief Judge refusing to consider his claim to be deemed to have been elected. Therefore if I am of opinion that it was clearly incumbent on the Chief Judge under Section 33 to consider the petitioner's claim, I have jurisdiction to direct the Chief Judge to do so.

8. I may here deal with the contention that the petitioner has been guilty of delay so as to disentitle him to relief.

9. The Chief Judge delivered his judgment on the 13th April. The petitioner obtained a certified copy of the judgment on the 23rd April. The High Court vacation had then commenced and the petition was presented on the first day the Court sat after the vacation. It is suggested that it should have been presented during the vacation, but the petitioner was under no obligation to do so, and I think he was perfectly justified in waiting until the Court re-opened after the vacation. Then Mr. Kemp urged that the Chief Judge had exercised his discretion in a matter wholly and exclusively within his jurisdiction and that acting on well-known principles this Court would not interfere. But in this case it is not a question of discretion, the Chief Judge has said: As I reads. 33 the legislature has given me no power to consider the claim of any of the remaining candidates to fill these two vacancies except the claim of No. 9.' If he had said, I have the power but I decline to exercise it in favour of any of the unsuccessful candidates, his decision would have been conclusive.

10. This case falls within the general principle referred to in Ex parte Milner (1851) 15 Jur. 1037 that where an inferior tribunal improperly refuses to enter upon a complaint, a mandamus will issue. And see The Queen v. The Judge of the Pontypool County Court [1894] 63 L.J.Q.B. 702 where the High Court refused to interfere with the decisions of the County Court Judge, as, in the words of Wright J., 'he had not really declined jurisdiction. He might or might not have made a mistake but it could not be said he had refused to entertain case'.

11. Lastly it was suggested that even if I differed from the Chief Judge I should not give directions on the ground of public policy as the success of the petitioner in this case might lead to applications of a frivolous nature being made to this Court. That may be a reason why this Court will not interfere when the lower Court has exercised its discretion but when jurisdiction has been declined it is a matter of public policy that a subject should not be lightly deprived of a franchise to which he is entitled by law.

12. I now come to the merits of the case. What are the powers and duties of the Chief Judge under Section 33 of the Bombay Municipal Act which has been materially altered by Bombay Act V of 1905. Within fifteen days after the result of an election being declared any person enrolled in the Municipal election roll may apply to the Chief Judge (r) if the qualification of any person declared to be elected for being a Councillor is disputed or (2) if the validity of any election is questioned for certain reasons mentioned or for any other cause. It is open to argument whether the word ' election ' means the election proceedings as a whole, or the election of an individual candidate. This question was discussed by Sir Lawrence Jenkins C. J. in Bhaishankar v. The Municipal Corporation of Bombay : (1907)9BOMLR417 but in the opinion of the learned Chief Justice it mattered little which view prevailed. I should be inclined to think that neither view is wholly correct.

13. An objection to the election proceedings as a whole must include an objection to each of the individual candidates. An objection to the election of a particular candidate may involve an inquiry into the whole of the election proceedings as regards that candidate. What does seem clear from the wording of Sub-section (2) is that an application under Sub-section (1) should name the persons whose election is objected to. i

14. The powers of the Chief Judge under Sub-section (2) were changed by the amending Act and in order to prescribe the procedure to be followed in consequence of that change the following words were added to Sub-section (i): ' 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, have, according to the results declared by the Commissioner under Section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate.'

15. It was open, therefore, to the applicant in the Small Causes Court to ask for a declaration that No. 15,-for instance, should be deemed to have been elected, in which case he was bound to make Nos. 9 to 14 parties to his application. I do not understand, however, the last words of the sub-section ' as against the said candidate.' The applicant would not be proceeding against the particular candidate he wished to be declared elected, and it would seem more in agreement with the context if the sub-section ended as follows :-' as against the successful candidate or candidates the validity of whose election is being questioned.'

16. Sub-section (2) enacts what the Chief Judge is to do when an application is made under Sub-section (i). He has to make such inquiry as he may deem necessary and-

1. If he finds that the election was a valid election and that the person whose election is objected to is not disqualified he shall confirm the result of the election.

2. If the Chief Judge finds that the person whose election is objected to is disqualified for being a Councillor he shall declare such person's election null and void.

3. If the Chief Judge finds that the election is not a valid election he shall set it aside.

17. The words ' so far as concerns the person whose election is objected to ' appearing in the Act before the amendment have now been omitted. It may be they were considered superfluous but whether the Chief Judge declares a person's election null and void on the ground that he is disqualified or sets aside an election as not valid, in either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person or after all the persons who were returned as elected at the election, and against whose election no cause of objection is found shall be deemed to have been elected :

18. The Chief Judge dealing with this part of Sub-section (2) says in his judgment:

The last part of clause ?, of Section 33 seems to contemplate only one candidate coming in in the event of one or more of the successful candidates being unseated by the Court, that one candidate is the gentleman with the next highest number of votes to the candidates returned as elected provided no cause of objection exists against him. Hence if the election of the whole eight successful candidates were set aside the Court would only have power to declare the ninth candidate elected in place of the eight returned candidates and if any cause of objection existed as to him nobody could be declared elected.

19. Later on he says :

As the election of the third and sixth respondents have been set aside the question to be considered is whether any cause of objection can be urged against the ninth respondent who in the ordinary course and who alone under Section 33 (2) can be declared elected in place of the unseated candidates.

20. Whatever the section may contemplate the Court must give effect to its plain grammatical meaning and with all due deference to the learned Chief Judge that meaning is perfectly clear. Under Section 33 (2) of the Act as it stood before it was amended by Bombay Act V of 1905 the Chief Judge, if he set aside an election, had no power to fill the vacancy so created. It was only in the case of a person's election being held null and void on the ground that he was disqualified for being a Councillor that the Chief Judge could direct that the candidate, if any, with the next highest number of votes after the person disqualified or after all the persons who were returned as elected should be deemed to be elected. I am clearly of opinion that under that section the Chief Judge had power to fill up any number of vacancies caused by the election of candidates being declared null and void so far as the number of unsuccessful candidates allowed in order of votes obtained by them. However that may be the amendments, introduced by Act V of 1905, leave no room for ambiguity. It is not the candidate with the next highest number of votes whom the Chief Judge shall declare to be deemed to be elected but the candidate with the next highest number of valid votes and against whose election no cause of objection is found. The Chief Judge in stating what the section in his opinion contemplated has omitted to notice the word ' valid'. No doubt the Chief Judge would be entitled to presume that all the votes in favour of a candidate as declared by the Commissioner were valid but if a vacancy has to be filled all the unsuccessful candidates are open to attack and the last on the list may prove to be the one with the next highest number of valid votes.

21. The object of the latter portion of Sub-section (i) added as abovementioned by Bombay Act V of 1905 now becomes clear. The change in Sub-section (2) has enabled an applicant to apply to the Chief Judge for a declaration that any of the unsuccessful candidates should be deemed to be elected and if the applicant in this case had applied for a declaration in favour of No. 15 he was bound, as I have pointed out above, by Sub-section (i) to make Nos. 9 to 14 parties to his application. As far as I can gather no such declaration was asked for but all the candidates were made parties to the application. If the Chief Judge could only consider whether No. 9 should be deemed to be elected or not the latter portion of Sub-section (i) expressly added by the amending Act would be meaningless.

22. Then is there anything in the section which can be held to limit the power of the Chief Judge to filling up one vacancy only, when he has set aside the election of more than one of the successful candidates. Under Section 13 of the General Clauses Act words in the singular shall include the plural and vice versa provided there is nothing repugnant in the subject or context.

23. The section has been held to empower the Chief Judge to set aside the election of any number of candidates returned as elected; therefore I see nothing repugnant in construing the section as empowering the Chief Judge to fill up any number of vacancies so created from the list of unsuccessful candidates subject to the provisions of the section.

24. It was suggested that the Chief Judge might have to direct that candidates with a very small number of votes should be deemed to have been elected. That is a matter for the legislature and not for the Court, but I may point out that it would be possible for this to occur even if the view of the Chief Judge was correct and only the claim of the next man out could be considered.

25. In my opinion, therefore, it was clearly incumbent on the Chief Judge to deal with the question of filling up both the vacancies.

26. I direct accordingly that the Chief Judge do proceed to place the unsuccessful candidates in order of valid votes. The two with the highest number of valid votes against whom no cause of objection is found should be declared to be deemed to be elected. If only one qualifies, or none qualifies, proceedings for filling the vacancy or vacancies will have to be taken under Section 34.

27. My decision in no way interferes with the discretion of the learned Chief Judge. It does not lie within his discretion to refuse to exercise duties clearly imposed upon him by statute when by such refusal the franchise of some person has been injured.


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