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Haji SharafuddIn JainudIn Vs. R.L. Pardeep - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 499 and 500 of 1969
Judge
Reported in(1970)72BOMLR44; 1970MhLJ203
AppellantHaji SharafuddIn Jainudin
RespondentR.L. Pardeep
DispositionAppeal dismissed
Excerpt:
.....1965), sections 16, 44, 20 - bombay primary education act (bom. lxi of 1947), sections 17, 18, 20--municipal councillor executing surety bond for restoring loss of money due to default of head master of municipal school authorised to make payment out of money collected as head master-whether councillor as result of the bond disqualified from continuing as councillor-question of disqualification whether can be raised under section 44 after time to file election petition has expired.;a person was employed as a head master in a school which belonged to a municipality governed by the maharashtra municipalities act, 1965, after executing a contract whereby he undertook, apart from his duties, to discharge his obligations in connection with payment of money collected by him as such head..........owners of the municipal schools. for limited purposes of management and administration of these schools, school boards were constituted and. certain powers of management and control in respect of these schools were vested in them. inspite of such delegation of powers, these schools belonged to and were for all purposes maintained' by the concerned municipalities. it was obligatory on the municipalities under the above municipalities act to establish and maintain primary schools in the municipal areas. in that connection under section 17 of the bombay primary education act, the municipalities were directed to perform the following duties and functions, viz.,(a) to make adequate pro-vision for maintaining the existing primary schools and opening new schools wherever necessary and for.....
Judgment:

K.K. Desai, J.

1. These two petitions by two petitioners, who were Municipal Councillors of Amalner Municipal Council, are for challenging the legality of the order dated February 15, 1969, made by the Collector, Jalgaon whereby under provisions of Section 16(7)(i) read with Section 44(7)(a) of. the Maharashtra Municipalities Act, 1965 it was ordered that the two petitioners were disqualified from continuing to be Councillors of the above Municipal Council. The order further declared that the two seats of the above two petitioners in the Municipal Council had become vacant.

2. The petitioner in Special Civil Application No. 499 of 1969 was declared elected to the Municipal Council in the elections held on June 3, 1967. The petitioner in Special Civil Application No. 500 of 1969 became Councillor on August 17, 1967, by co-option,

3. It appears that prior to the above two dates, one Shaikh Tayyab Shaikh Hussein was employed as a Head Master in the Primary Municipal School at Amalner. In connection with his employment, he executed a contract dated August 15, 1959, thereby undertaking to discharge all his duties as the Head Master of the school and to discharge obligations in connection with payment of money collected by him as such Head Master. The two petitioners executed a joint surety bond thereunder inter alia undertaking that if the said Shaikh Tayyab Shaikh Hussein committed default in the matter of discharging his obligations, they would pay the sum of Ks. 1,000 jointly and severally for restoring the loss and damage caused by such default. A translation of the above contract and joint surety bond is annexed to the petitions as exh. A.

4. Though an election petition for declaration that by reason of the above surety bond these two petitioners were disqualified was not filed under the provisions of Section 21 of the Maharashtra Municipalities Act, 1965, applications were separately filed before the Collector in respect of each of the petitioners that as the petitioners had stood surety for Shaikh Tayyab Shaikh Hussein, the Head Master of the school of Amalner Municipality, they were not qualified to act as Councillors and an enquiry should be made in that connection.

5. The Collector thereafter duly served show cause notices on the two petitioners who filed their written statements of defences. The impugned order dated February 15, 1969, stated that as the petitioners were securities to the Head Master at the dates when they became Councillors of the Municipality, they were subject to the disqualifications under Section 16(1)(i) of the above Act and the disqualification continued even though the Head Master had subsequently ceased to be in service. It was declared that the petitioners were not qualified to continue to be Councillors of the Municipal Council from the date of the order and that their seats were rendered vacant.

6. In these two petitions Mr. Kanuga for the petitioners has contended that the above surety bond was not a contract with the Municipal Council and in fact it Was a contract with the Municipal School Board and the petitioners accordingly did not incur any disqualification to be Councillors under the provisions of Section 16(i)(a) of that Act. The second contention was that the question of disqualification under Section 16(1)(i) could have been raised in respect of both the petitioners by an election petition filed under Section 20. The time to file such election petition had expired when the above applications raising- the above dispute were made before the Collector. The applications were not liable to be entertained under Section 44(1)(a) of the Act. In the submission of Mr. Kanuga for the above two reasons, the impugned order is illegal and invalid and must be set aside.

7. In developing these contentions, both sides have referred us to the relevant provisions in Municipalities Act as well as the Bombay Primary Education Act and the Rules made thereunder. Now, it is not necessary to state the several relevant provisions in this judgment because it is abundantly clear on a reading of the scheme of the Bombay Primary Education Act along with the relevant sections of the Municipalities Act that municipal schools managed and controlled by school boards entirely belong to the Municipalities, The school boards never became the owners of the municipal schools. For limited purposes of management and administration of these schools, school boards were constituted and. certain powers of management and control in respect of these schools were vested in them. Inspite of such delegation of powers, these schools belonged to and were for all purposes maintained' by the concerned municipalities. It was obligatory on the municipalities under the above Municipalities Act to establish and maintain primary schools in the municipal areas. In that connection under Section 17 of the Bombay Primary Education Act, the municipalities were directed to perform the following duties and functions, viz.,

(a) to make adequate pro-vision for maintaining the existing primary schools and opening new schools wherever necessary and for granting aid to approved schools...;

(b) to provide adequate accommodation and equipment for primary schools;

(c) to maintain an adequate staff...teachers, inferior servants and other staff as may in the opinion of the State Government be necessary;

(d) ...

(e) to sanction with or without variation the budget of the municipal school board.

Under Sub-section (3) of Section 17 the Municipalities were authorised to make regulations for determining the qualifications of inter alia officers as well as inferior servants and other staff. Under Section 18 of that Act the management and control of municipal schools was entrusted for certain purposes to municipal school boards. Under Section 20 relating to administrative machinery, provision was that every municipality had to maintain an adequate staff including primary school teachers and other staff necessary for the administration, management and control of approved schools in its areas.

8. Having regard to these provisions, it is quite clear that the above surety bond that was executed by the petitioners in favour of the municipal school board was made by the school board only for and on behalf of the Amalner Municipality. The obligations which Shaikh Tayyab Shaikh Hussein, the Head Master, undertook by the contract in respect whereof the surety bond was executed, were obligations that he had to discharge as the Head Master of the municipal school. All these obligations arose in favour of the Amalner Municipality. It is, therefore, quite clear that the obligations under the surety bond related to the obligations which arose against Shaikh Tayyab Shaikh Hussein in favour of the Amalner Municipality. Though the contract of the bond is in favour of the municipal school board, it is for the benefit of and on behalf of the Amalner Municipality. The first contention made by Mr. Kanuga that this contract was not with the Municipal Council can, therefore, not be accepted.

9. Now, it is admitted that under Sub-clause (i) of Sub-section (1) of Section 16 of the Municipalities Act, no person can be qualified to become a Councillor whether by election or by co-option who directly or indirectly has any interest in any contract with or under or by or on behalf of a Municipal Council. On a reading of Sub-clause (a) of Sub-section (1) of Section 44 it is also clear that if at any time during Ms term of office, a Councillor is or becomes subject to the disqualification mentioned inter alia in Sub-clause (i) of Sub-section (/) of Section 16, he must be held to be disqualified to hold office of a Councillor. The result of the above discussion is that the two petitioners had by the above surety bond made a contract with the Municipal Board which was in that contract acting on behalf of Municipal Council. The two petitioners accordingly had interest in a contract with the Municipal Council within the meaning of Sub-clause (i) of Sub-section (/) of Section 16 and that they were respectively upon election and co-option as Councillors disqualified to be elected and co-opted as Councillors and also were and continued to be subject to that disqualification during the period that they acted as Councillors. The Collector was accordingly right in holding that the two petitioners were disqualified to continue as Councillors. The first contention must accordingly fail.

10. As regards the second contention, the following provision in Sub-section (1) of Section 44 is relevant:

A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he -

(a) is or becomes subject to any of the disqualifications specified in section 16...

Now, it is true that at the date of his election if a person is disqualified, an election petition could be filed and the question of the disqualification could be raised in such a petition. But having regard to the phrase 'at any time' in the first part of Sub-section (1) of Section 44 and the phrase 'is or becomes subject to any of the disqualifications specified in section 16' in Sub-clause (a) of that sub-section, it is quite clear that the question of continuing disqualification could be raised even at a subsequent date under the provisions of Section 44. The scheme in that section for an applicant to raise the question of disqualification is independent of the provisions relating to raising the question of disqualification in an election petition under Section 20. This independent right has not been circumscribed by any of the provisions of the Act and must be held to be continuing even when the time to file an election petition as provided by Section 20 may have expired.

11. We have not indulged into larger discussion in this connection because similar questions were raised in the case of Bammayya Venkat v. State of Bombay (1958) 61 Bom. L.R. 654, on parallel provisions in the Bombay Municipal Boroughs Act, 1925. It was held in that case by Shelat J., sitting in Division Bench along with Chief Justice Chainani, that the true effect of these was of the nature which we have discussed above. We, therefore, derive support in respect of our above conclusions from the discussions which can be read from that decision.

12. In the result, these petitions fail. Rules are discharged with costs.


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