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Kesheorao Shrawanji Datir Vs. Collector - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 359 of 1961
Judge
Reported in(1962)64BOMLR599
AppellantKesheorao Shrawanji Datir
RespondentCollector
DispositionPetition allowed
Excerpt:
central provinces and berar municipalities president and vice-president (election and appointment) (bombay) rules, 1958. rule 5(1) - central provinces and berar municipalities act (ii of 1922), section 18(3)--whether provision 'not later than 30 minutes before the hour fixed for the meeting' in rule 5(1) ultra vires of section 18(3) of act.;the provisions of the clause 'not later than 30 minutes before the hour fixed for the meeting' in rule 5(1) of the central provinces and berar municipalities president and vice-president (election and appointment) (bombay) rules, 1958, are ultra vires of section 18(3) of the central provinces and berar municipalities act, 1922, and therefore can have no effect. the offending clause can be separated from the remaining portion of rule 5(1) of the rules..........their respective offices until the date on which the term so extended expires.4. turning to the rules, rule 3 requires the collector to convene a meeting of all the members of the committee within 25 days of the notification of the names of the members of the committee in the official gazette under section 20, for the purpose of election of the president under section 18(1). for this meeting, rule 3(2) provides that the collector shall appoint an officer to be the chairman. in this case, it is not in dispute that respondent no. 2 was so appointed chairman. rule 3(5) makes provision for the quorum at the meeting and for adjournment of the meeting. the provisions of it. 4 and 5 (1) are as follows:-4. the chairman shall, before proceeding to elect the president, call upon the members to.....
Judgment:

Kotval, J.

1. In this Special Civil Application, we are concerned with the election of the President of the Municipal Committee, Badnera. He was declared to have been elected on November 24,-1961, in circumstances which, briefly stated, are as follows: The general election for the purpose of constituting the Municipal Committee was held on October 21, 1961, and the names of the elected members of the Municipality were notified in the Maharashtra Government Gazette on November 2, 1961. A meeting of the members of the Committee was convened for the election of the President as provided by Section 18 of the C.P. and Berar Municipalities Act, 1922, for November 24, 1961. What happened at that meeting has given rise to the present petition.

2. It appears that respondent No. 5 Pundalik Sadhu Bansod wanted to stand as a candidate for the presidentship and, therefore, two of his supporters and he went to the municipal office and handed over his nomination paper to respondent No. 2 who was appointed Chairman of the meeting. There is some dispute as to the exact time at which the nomination paper of respondent No. 5 was handed over. The petitioners say that it was handed over at 10-35 a.m. and respondent No. 5 says that it was' handed over at 10-30 a.m. But nothing turns upon that difference in time. According to the petitioners, petitioner No. 1 also wanted to stand for election to the office of President and, therefore, he and the twelve other petitioners had attended the meeting. The meeting was scheduled to be held at 11 a.m. and the petitioners were all present at the meeting'. According to the petitioners, respondent No. 2 declined to accept the nomination form of petitioner No. 1 though it was duly proposed and seconded. That fact however has been denied by respondent No. 2 who, in his return, has stated that no nomination paper of petitioner No. 1 was ever submitted to him. Nothing, however, turns upon this denial.

3. The point that has been raised on behalf of the petitioners by Mr. Mandlekar is a point concerning the validity and vires of a rule. The decision of the point depends upon certain provisions of the C.P. and Berar Municipalities Act and the rules framed under Sections 18(6) and 20 thereof. These rules are the C.P. and Berar Municipalities President and Vice-President (Election and Appointment) (Bombay) Rules, 1!)58. Sub-section (1) of Section 18 of the Act prescribes that each Committee shall have a President who shall be elected by the members from among their number. Sub-section (2) prescribes that each Committee shall have a Vice-President and indicates how he is to be appointed. Then come the important provisions of Sub-section (3) which, for the purposes of the dispute before us, are decisive Sub-section (3) runs as follows:-

Save as otherwise provided in this Act,

(a) the President shall hold office for such term, not less than one year or not less than the residue of the term of office of the Committee whichever is less, and not exceeding three years, as the Committee shall, previous to the election of the President, determine or until the expiry within the said term of his term of office as member, but shall be eligible for re-election; and

(b) the Vice-President shall hold office during the term of office of the President who appoints him;

Provided that the term of office of such President or Vice-President shall be deemed to extend to and expire with, the date on which his successor is elected or appointed, as the case may be:

Provided further that where the term of office of a Committee is extended under this Act, the President and Vice-President holding office immediately before the date with effect from which such term is extended shall continue to hold their respective offices until the date on which the term so extended expires.

4. Turning to the rules, Rule 3 requires the Collector to convene a meeting of all the members of the Committee within 25 days of the notification of the names of the members of the Committee in the Official Gazette under Section 20, for the purpose of election of the President under Section 18(1). For this meeting, Rule 3(2) provides that the Collector shall appoint an officer to be the Chairman. In this case, it is not in dispute that respondent No. 2 was so appointed Chairman. Rule 3(5) makes provision for the quorum at the meeting and for adjournment of the meeting. The provisions of IT. 4 and 5 (1) are as follows:-

4. The Chairman shall, before proceeding to elect the President, call upon the members to determine the term for which the President shall hold office as required by the provisions of clause (a) of Sub-section (3) of section 18.

5. (1) Each candidate shall, either in person or by his proposer and seconder, deliver to the Chairman of the meeting, not later than 30 minutes before the hour fixed for the meeting, a nomination paper in Form A signed by the candidate signifying his willingness to serve as a President and also by two members as proposer and seconder. The Chairman shall immediately, on receipt of the nomination papers, enter in them serial numbers in the order in which they are received by him, and shall sign thereon a certificate stating the date on which and exact time at which the nomination papers were delivered to him.

5. Now, it will be observed that Rule 4 lays down precisely what Section 18 (5) provides. Rule 4 says that before proceeding to elect the President, the Chairman shall call upon the members to determine the term for which the President shall hold office. That is precisely what Section 18(5)(a) also prescribes. Section 18(3)(a) uses the words 'the President shall hold office for such term....as the Committee shall, previous to the election of the President, determine....' Thus, while the words used in Section 18(3)(a) are 'previous to the election of the President,' in Rule 4 the words used are 'before proceeding to elect the President,' which, in our opinion, despite an argument to the contrary, have the same meaning.

6. In our opinion, what was intended by Section 18(5) is clear, when it provided that the Committee shall determine the term for which office shall be held by the President 'previous to the election of the President.' The intention was that each candidate for presidentship should know before he submits himself to election for what term he would have to serve. It may be that a candidate would be unwilling to serve for too short or too long a period and reading the provisions of Section 18(5) it seems to us very clear that, therefore, it was provided that the Committee shall determine the term of office of the President 'previous to the election....' There is also no provision in the Act or Rules for withdrawal of nomination. That is an additional reason why the candidate for election as President, should know the term of office before he submits his nomination. We shall also presently show that normally 'election' comprises within its meaning the important step of nomination. Thus, upon a plain reading of Section 18(3) the matter does not give rise to much difficulty. Rule 4 also follows Section 18(3) though it uses slightly different language.

7. The difficulty however is created by the provisions of Rule 5 (1)which prescribes how and when the nomination paper of each of the candidates for election has to be delivered, and the relevant portion of Rule 5(1) says:

Each candidate shall, either in person or by his proposer and seconder, deliver to the Chairman of the meeting, not later than 30 minutes before the hour fixed for the meeting, a nomination paper...

(the italics are ours).

Therefore, Rule 5 (1) prescribes that the nomination paper of each candidate shall be delivered to the Chairman of the meeting not later than 30 minutes 'before the hour fixed for the meeting. Though there was some argument as to the meaning of the words 'not later than 30 minutes' it is clear that Rule 5(1) in any case requires that the nomination paper of each candidate must be handed over before the hour fixed for the meeting, whereas Rule 4 and Section 18(3)(a) in our opinion provide that the term for which the President shall hold office shall be determined before proceeding to elect the President. From Section 38(3)(a) and Rule 4 it appears clear that the nomination papers must be handed over to the Chairman after the meeting has determined the term for which the President shall hold office. But Rule 5(1) requires that the nomination papers should be handed over thirty minutes before the time for the meetings. Thus, there is a patent conflict between Rule 4 and Rule 5(1) ; and Rule 5(1) in its turn conflicts with the provisions of Section 18(3)(a).

8. It was urged by Mr. Vaidya on behalf of respondent No. 5 that the word 'election' used in the expression 'previous to the election of the President' in Section 18(3)(a) means merely the actual poll for the election of the President, and if Section 18(3)(a) is so construed, then there is no conflict between Rule 4 and Rule 5 (1) nor between Rule 5(1) and Section 18(3)(a).

9. Unfortunately, the word 'election' has neither been defined in the Act nor in the Rules and we can see no indication in the Act or in the Rules that it is used in any particular or special connotation. On the other hand, it is clear from a perusal of the Rules themselves that the word 'election' is used in a general sense. It connotes that process by which one person in chosen from amongst several for an office. That the step of nominating a candidate for election is part of the election itself is clear from a perusal of Rule 8 which speaks as of 'the nomination papers and ballot papers in respect of election of the President' thereby implying that not merely are the ballot papers part of the election but also the nomination papers. That is also the normal and accepted connotation of what constitutes the process of election. We cannot hold as is contended that the process of nomination forms no part of the process of election. On the other hand, we think that in the context and the circumstances in which the word 'election' is used in the Act and the Rules, it implies that process which commences with the filing of nomination papers, if not more.

10. It seems to us that in drafting Rule 5(1), the draftsman ignored or rather omitted to notice the exact meaning of the provisions of Section 18(3)(a). Even in Rule 4 he has used the words 'elect the President' and there it is prescribed that before proceeding to elect the President, the Chairman shall call upon the members to determine the term for which the President shall hold office. We cannot believe that the same draftsman used the word 'election' in Rule 5(1) in a different sense, as not including the process of nomination but only that process which begins with polling.

11. If that is the interpretation of the word 'election' as used in Section 18(3)(a) and Rule 4, then it is clear that the following words in Rule 5(1) 'not later than 30 minutes before the hour fixed for the meeting,' are in direct conflict with the provisions of Section 18(3)(a) and must, therefore, be declared ultra vires of those provisions. Fortunately, the remaining portion of Rule 5(1) can still make sense even after the omission of that clause and it behoves us to uphold that part of it. It is possible to separate the offending clause from the main body of the sub-rule. We think that the provisions of the clause -'not later than SO minutes before the hour fixed for the meeting' in Rule 5(1) is ultra vires of Section 18(3) and therefore can have no 'effect.

12. Upon this interpretation, it is clear that the impugned election of respondent No. 5 cannot be upheld. What transpired at the meeting is clearly stated in the minutes of the meeting filed at annexure 3 and those facts are also admitted by respondent No. 5 himself in this return in para, 6. It is clear that the Chairman of the meeting did not call for nomination papers after the meeting determined the term for which the President was to hold office. It was really at that stage that the nominations should have been called for and since that was not done, the petitioner who wished to stand as a candidate was deprived of his right to be elected.

13. As a matter of fact, it appears that respondent No. 5 is elected contrary to the wishes of the majority of the members because even in the present petition 13 members of that meeting have joined in the petition and have stated that they wanted petitioner No. 1 to be elected, while the Committee itself consists of 20 members, There is, therefore, no doubt that if petitioner No. 1 had been allowed to stand, he would have been elected.

14. In the circumstances, the only order that we can pass is to declare the election of respondent No. 5 bad. We set it aside and order a fresh. election to be held. The petition is allowed. Respondent No. 2 shall pay the costs of the petitioners.


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