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Lomeshprasad Hariprasad Desai Vs. State of Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1010 of 1954
Judge
Reported inAIR1955Bom159; (1954)56BOMLR1107; ILR1955Bom146
ActsBombay Municipal Boroughs Act, 1925 - Sections 11(1), 12, 12(2), 12(4) and 12(5); ;Code of Civil Procedure (CPC), 1908 - Order 3, Rules 4 and 4(2)
AppellantLomeshprasad Hariprasad Desai
RespondentState of Bombay and anr.
Appellant AdvocateK.B. Sukhtankar, Adv.
Respondent AdvocateH.M. Choksi, Govt. Pleader, ;N.R. Oza, ;S.N. Patel and A.D. Desai, Advs.
Excerpt:
.....to withdraw from suit as pleader, after date of filing of nomination papers--whether candidate's employment with municipality terminated on date of acceptance by municipality of his resignation--candidate whether qualified to stand for election.;one l, who was engaged as a pleader by a borough municipality in a suit, applied to the municipality on january 18, 1954, to relieve him as its lawyer. the municipality passed a resolution on the same day accepting his resignation as its lawyer, and on january 27, 1954, it intimated to the court, in which the suit was pending, that it had relieved l as its lawyer from january 18, 1954. in the meantime l stood as a candidate at the election for councillors to the municipality and be filedhis nomination on january 19, 1954. on february 19,..........as the results of the elections were declared on 19-2-1954, there can be no question that on that date opponent no. 2 was not in the employ of the municipality, and, therefore, his election was not in contravention of any of the provisions of section 12. the government pleader has further contended that really the material date is not even the declaration of the result, but the material date is under section 12 (2) (a) the date of the first general meeting of the municipality. it is on that date that the term of office of the councillor is deemed to commence. according to the government pleader, if on that date the councillor is not suffering from any of the disqualifications mentioned in section 12, then he is entitled to continue as a councillor and any disqualification which he may.....
Judgment:

Chagla, C.J.

1. The election for councillors to the Baroda Borough Municipality was held on 17-2-1954. The nominations for this election had to be filed by 19-1-1954. Opponent No. 2 filed his nomination on that day. The scrutiny of nomination papers was held on January 20. The petitioner objected to the nomination of opponent No. 2, but his objection was overruled. The election took place and he was declared elected to one of the seats for Ward No. 3. The results of the election were declared on 19-2-1954. The petitioner who is a voter and was also a candidate for election has filed his petition challenging the election of opponent No. 2 on the ground that he was disqualified as a councillor by reason of the fact that he was in the employ of the Municipality. The petitioner first approached the Collector and the Collector upheld the contention of the petitioner and set aside the election of opponent No. 2. Government then intervened and set aside the order of the Collector, and it is really the order of Government that is being challenged in this petition by the petitioner.

2. Now, the facts on which it is alleged that opponent No. 2 was disqualified are that he was engaged as a pleader by the Baroda Borough Municipality in suit No. 7 of 1952 in the Court of the Civil Judge, S.D., Baroda. He was engaged along with another lawyer and opponent No. 2 filed his vakalatnama in that suit on 14-4-1952. On 18-1-1954 opponent No. 2 applied to the Municipality for relieving him as its lawyer and the Municipality passed a resolution on the same day accepting the resignation as its lawyer of opponent No. 2. On 27-1-1954 the Chief Officer of the Municipality intimated to the Court that they had relieved opponent No. 2 as a lawyer from 18-1-1954. The nomination paper of opponent No. 2 was filed on 19-1-1954.

3. Now, there is a very interesting argument which has been advanced before us both by the Government Pleader and Mr. Sukthankar as. to the proper construction of Section 12, Bombay Municipal Boroughs Act. Mr. Sukthankar's contention is that the relevant date to determine whether a candidate suffers from any of the disqualifications laid down in Section 12 is the date of scrutiny, and if on that date the candidate is disqualified, then it is the duty of the returning officer to reject his nomination paper. On the other hand, the contention' of the Government Pleader is that the qualifications of a candidate are laid down in Section 11 (1), and if a candidate possesses those qualifications, then the returning officer must pass his nomination paper and he has a right to stand as a candidate. It is only if he is elected and he is found to sutler from any of the disqualifications mentioned in Section 12 that under Sub-section (4) of Section 12 his seat becomes vacant and under Sub-section (5) an authority is given to the Collector to decide whether a vacancy has occurred under that section or not.

The Government Pleader says that as the results of the elections were declared on 19-2-1954, there can be no question that on that date opponent No. 2 was not in the employ of the Municipality, and, therefore, his election was not in contravention of any of the provisions of Section 12. The Government Pleader has further contended that really the material date is not even the declaration of the result, but the material date is under Section 12 (2) (a) the date of the first general meeting of the Municipality. It is on that date that the term of office of the councillor is deemed to commence. According to the Government Pleader, if on that date the councillor is not suffering from any of the disqualifications mentioned in Section 12, then he is entitled to continue as a councillor and any disqualification which he may have suffered from prior to that date cannot be taken into consideration. In our opinion, on the facts of this case it is unnecessary to decide which of these, two rival contentions is sound in law, because, in our opinion, even assuming that Mr. Sukthankar's contention is correct, opponent No, 2 was not in the employ of the Municipality on 19-1-1954, when his nomination paper was filed.

4. Now, Mr. Sukthankar contends that although opponent No. 2 tendered his resignation as a pleader and that resignation was accepted by the Municipality on January 18, the date on which he has ceased to be the Municipality's pleader was not the date January 18, but January 27, when the letter of the Chief Officer was filed in Court and the Court allowed the pleader to withdraw from the suit. For this purpose reliance is placed on Order 3, Rule 4 (2), Civil P. C. Now, Rule 4 (2) provides:

'Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.'

Therefore, Mr. Sukthankar says that the appointment of a pleader cannot be terminated without the leave of the Court. So long as the Court had not given leave, the appointment of opponent No. 2 continued. Therefore, he was in the employ of the Municipality at the relevant date. Now, Order 3, Rule 4, deals with the duty of a lawyer to the Court and what the Court expects of a lawyer. The Civil Procedure Code -- it is unnecessary to say -- regulates the procedure of all civil Courts. It does not in any way affect the substantive law between employer & employee. In order to decide, whether opponent No. 2 was in the employ of the Municipality or not, we must look not at the Civil Procedure Code but to the ordinary law which regulates the contract between master and servant, and judging by that law, there can be no doubt that the employment of opponent No. 2 terminated on 18-1-1954. He tendered his resignation as a lawyer; that resignation was accepted and in law opponent No. 2 was no longer in the employ of the Municipality.

It is also pertinent to note that by Order 3, Rule 4 (2), the Code provides that the appointment shall be deemed to be in force until leave is granted. Therefore, it is by a legal fiction, in order to maintain the highest traditions of the profession and in order that proper assistance should be given to the Court and in order that a client should not be let down by his legal advisers, that the Court assumes that although in law and in fact the employment may be terminated, for the purposes of civil procedure the pleader must be deemed to continue in the employ of his client.

But for the purpose of the Municipal Boroughs Act we are not concerned with any legal fiction as to the employment of the pleader. We are concerned with the actual employment, and if the pleader was no longer in the actual employment of his client, the mere fact that for the purposes of the Civil Procedure Code his appointment is deemed to continue does not bring the case of the pleader within the mischief of Section 12. Mr. Sukthankar says that a lawyer must be judged by a different standard from that of an ordinary employee. We entirely agree with Mr. Sukthankar. The legal profession is a very noble profession which should be expected to maintain the highest standards and our law has incorporated principles which require that high standard of duty and responsibility from a lawyer. But a lawyer in that sense enjoys a dual capacity. He is the servant of his client and he is also an officer of the Court owing a duty to the Court. Whereas his duty to the Court may require his continuing to render service to the Court, if required, even though his appointment is terminated, as far as his master is concerned, he cannot say: 'I am still in the employ of my master'.

As far as the Municipal Boroughs Act is concerned, we are not interested in deciding what the duties of the lawyer are or what is expected of him from the Court. What we are concerned with is a very narrow question of fact as to whether his appointment continued or did not continue and from that narrow point of view there cannot be any dispute that his employment terminated on 18-1-1954. If that be the true position, then whether under Section 12 the disqualification may be taken into consideration at the date of the nomination or at the date of the election, opponent No. 2 was qualified to stand as a candidate and also to be elected.

5. The petition, therefore, falls and must bedismissed with costs.

6. Petition dismissed.


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