H.K. Chainani, C.J.
1. This election petition arises out of an election held to elect one of the members of the Ratnagiri District School Board. Section 4 of the Bombay Primary Education Act, 1947, provides for the constitution of a school board. The proviso to Clause (a) of Sub-section (5) of Section 4 states that not more than two members as may be determined by the State Government shall be elected in the manner prescribed by non-authorised municipalities on the District School Board. Sub-rule (4) of Rule 6 of the Bombay Primary Education Rules states that the representatives of non-authorised municipalities under the proviso to Section 4 of the Act shall be elected by the non-authorised municipalities concerned. Sub-rule (5) of this rule states that the election of the members of the school board shall be held in accordance with the procedure prescribed in Schedule C. Rule 10 of the rules contained in Schedule C states that the returning officer shall communicate valid nominations for seats of representatives of non-authorised municipalities to the presidents of such municipalities and ask them to record the votes of such municipalities in form II prescribed in Appendix II appended to the Schedule. The form given in Appendix II to the Schedule requires the voting paper, in which a cross is to be made against the candidate for whom the vote is to be cast, to be signed by the president of the municipality. Under these rules, therefore, representatives of non-authorised municipalities have to be elected by the municipalities concerned. The votes of such municipalities have to be recorded by their presidents. The right to elect a representative is, therefore, conferred on the municipality and not on its president. The president has only to record the vote of the municipality and sign the voting paper.
2. In this case there were three candidates, the petitioner and opponents Nos. 1 and 2. As required by Rule 10 of the rules contained in Schedule C to the Bombay Primary Education Rules, the names of these candidates were communicated by the returning officer to the non-authorised municipalities, one of which was the Khed Municipality. Opponent No. 3 is the president of Khed Municipality and is the wife of opponent No. 2. The Khed Municipality passed a resolution authorising its president to vote for whichever candidate she wanted to support. Opponent No. 2 subsequently withdrew from the election. At the election opponent No. 1 received 4 votes, 2 of Malvan Municipality and 2 of Khed Municipality. The petitioner also received 4 votes. Lots were then cast and opponent No. 1 was declared to be elected. The petitioner then filed an election petition in the District Court, Ratnagiri, in which he prayed for the election of opponent No. 1 being set aside. The two principal contentions raised by him in his petition were (1) that opponents Nos. 1 and 2 had resorted to some corrupt practices, and (2) that the votes cast by the Khed Municipality in favour of opponent No. 1 were invalid, as the Khed Municipality could not delegate its right to elect a representative or to give votes on its behalf to its president. The Assistant Judge, who heard the election petition, found that the allegations in regard to corrupt practices were not proved. He also came to the conclusion that the Khed Municipality could delegate to its president 'the power to give votes on its behalf'. In his opinion, the Municipality could authorise its president to vote for any of the candidates found suitable by her. The learned Judge, therefore, dismissed the election petition filed by the petitioner.
3. The principal question, which has been argued before us and which we have to decide, is whether a Municipality can authorise its president to give a vote on its behalf to such candidate as he deems proper. As pointed out above, the right to elect a member of the School Board is given to the Municipality and not to its President. The various provisions of the Bombay District Municipal Act, 1901, which applies to the Khed Municipality, show that a Municipality and its president are two distinct legal entities. This is clear from Section 37, which provides that any powers or duties or executive functions, which may be exercised or performed by or on behalf of the Municipality, may be delegated by the Municipality to its president, or other persons mentioned in the section. Clause (a) of Section 46 of the Act states that every Municipality may make rules regulating the delegation of any of its powers or duties. Under these provisions a Municipality may delegate its 'powers or duties or executive functions.' Section 4 of the Primary Education Act and the rules to which I have referred, provide for the election of a representative of non-authorised municipalities. These provisions give a right or a privilege to the municipalities concerned to elect a representative. The right given to a Municipality to elect a representative cannot be said to be a power conferred on the Municipality. It cannot also be said to be its duty, nor can it be said to be an executive function of the Municipality. It is a right or a privilege conferred upon the Municipality. The exercise of this right cannot, therefore, be delegated under Section 37 or by rules made under Clause (a) of Section 46. There is no other provision in the Act which empowers the Municipality to delegate the exercise of this right. The right to elect is given to the municipality and not to its president. In other words, the municipality itself must decide to whom it should give its vote. It cannot empower the president or any other authority to perform this function on its behalf or to decide to whom its vote should be given. A reference was made in arguments to Rule 10 contained in Schedule C to the rules. This rule states that the returning officer shall ask the presidents of municipalities to record the votes of such municipalities in the prescribed form. It is worth noting that the vote, which the president is to record under this rule, is the vote of the Municipality. It is, therefore, the Municipality, which must decide to whom its vote should be given.
4. In our opinion, therefore, the Khed Municipality could not empower its president to decide to whom its vote should be given. The votes cast in favour of opponent No. 1 on behalf of the Khed Municipality were, therefore, invalid. The election of opponent No. 1 must consequently be set aside.
5. We, therefore, set aside the election of opponent No. 1 and direct that a fresh election for electing a representative of the non-authorised Municipalities to the School Board should be held. There will be no order as to costs throughout.