M.C. Chagla, C.J.
1. This is a petition challenging the decision of the Assistant Judge, Dhulia, dismissing the petitioner's petition challenging the election of opponent No. 1 as a member of the Municipal School Board of the Dhulia- Municipal Borough. The election took place on September 13, 1953, and the petitioner and opponent No. 1 stood for the election. At the time of the scrutiny of the nomination papers the petitioner objected to the nomination of opponent No. 1 on the ground that he did not possess the requisite educational qualification. That objection was overruled and the Returning Officer accepted the nomination paper of opponent No. 1. The election was held on September 13, 1953, and opponent No. 1 was declared elected.
2. Now, under the Bombay Primary Education Act, Section 4 deals with the constitution of school boards and Sub-section (1) provides:
Each school, board shall consist of members not less than twelve and not more than sixteen in number.
Sub-section (2) provides:
Of these members not less than two and not more than three in number shall be appointed by the State Government.
Sub-section (4) provides for the qualifications of the members to be appointed by the State Government. Sub-section (5) provides that the members other than those appointed, by the State Government shall be elected by the district local board or the authorised municipality, as the case may be; and Sub-section (7) deals with the qualifications of the persons to be elected under Sub-section (5) and the qualification is that the members elected under Sub-section (51) shall have passed the primary school certificate examination or shall possess such other equivalent or higher educational qualification as may be prescribed. Now, it has been found by the learned Assistant Judge, and that finding is not disputed before us, that opponent No. 1 does not possess the educational qualification required under Sub-section (7) of Section 4. Then Section 5 deals with disqualification of members and it provides that no person shall be elected, appointed or nominated a member of a school board who does not either posses the qualification mentioned in that section or suffers from the disqualification mentioned in that section. Then Section 6 deals with the jurisdiction of the District Judge to determine the validity of an election, and Sub-section (2) lays down the ambit of his jurisdiction, and that ambit is that after proper inquiry the District Judge may pass an order confirming or amending the declared result of the election or setting the election aside. Sub-section (5) contains a mandatory direction upon the District Judge while exercising his jurisdiction under Sub-section (2) to set aside the election if he finds that the candidate has committed a corrupt practice within the meaning of Sub-section (6) and he has also got to declare the candidate disqualified for the purposes of the election and of a fresh election. Sub-section (6) defines what a corrupt practice is and again it is not disputed that no corrupt practice has been committed by opponent No. 1 within the meaning of this sub-section. Then Sub-section (7) contains a further direction to the District Judge while exercising his jurisdiction under Sub-section (2), and that direction is:
If the validity of the election is brought in question only on the ground of an irregularity or informality -which has not materially affected the result of the election or which has not been corruptly caused, the Judge shall not set aside the election.
Then Section 7 deals with disqualification which arises subsequent to the election of the member and during the term of his office, and Sub-section (2) confers jurisdiction upon the State Government to decide any question with regard to a vacancy under that section. Section 9 confers the power upon the State Government to remove, either on its own motion or on the recommendation of the board supported by a resolution passed by a two-thirds majority, any member elected, appointed or nominated on the school board, if such member has been guilty of misconduct in the discharge of his duties or of any. disgraceful conduct or has become incapable of performing his duties as a member by reason of any physical or mental infirmity.
3. Now, Mr. Desai's contention on behalf of opponent No. 1 is that inasmuch as the Returning Officer investigated the educational qualification of his client and inasmuch as he was satisfied that ha had the requisite qualification and allowed him to be nominated, his decision became final and that decision cannot be challenged by the District Judge. In the first place, there is nothing in the Act or in the Rules framed under the Act which makes the decision of the Returning Officer accepting a nomination paper as final. It may be pointed out that the rules provide for an appeal if the Returning Officer rejects a nomination paper, but there is no provision for appeal if he accepts a nomination. Mr. Desai wants us to infer from that fact that the decision of the Returning Officer becomes final as soon as it is given because the rules do not even provide for an appeal from his decision. It is a well known principle of election laws that decisions of Returning Officers cannot be challenged while the election has still to take place, and we often find provisions in rules where the decision of the Returning Officer is made final. But the finality is only an ad hoc finality. The reason for that finality is that the election should not be held up by parties going to civil Courts and getting their rights adjudicated. The law provides that the proper time to adjudicate upon these rights is by election petitions after the election has taken place. But here, as we have already pointed out, there is not even a provision giving an ad hoc finality to the decision of the Returning Officer. Therefore, it cannot be said that the jurisdiction of the District Judge has been ousted by the Legislature making the decision of the Returning Officer final.
4. It is then contended that the District Judge has no jurisdiction to consider the qualification of a member under Section 6 and it is pointed out that no corrupt practice has been established against opponent No. 1 under Sub-section (5) of Section 6. Now, as we have had occasion to point out in Narayan Maruti v. District Judge, Kolaba (1952) 55 Bom. L.R. 314, when considering the analogous provision of the Bombay District Municipal Act, the jurisdiction of the District Judge under Sub-section (2) is a very wide jurisdiction and that jurisdiction is in no way limited either by Sub-section (5) or Sub-section (7). This is not a case where a disqualification attaches to an elected member after he has been elected. The contention of the petitioner is that opponent No. 1 was not eligible for being elected and it is difficult to understand why it could not be said that the election is not valid when the person who has been elected was not eligible to be elected at all. Therefore, what the petitioner sought before the District Judge was to challenge the validity of opponent No. 1's election on the ground that he had no qualification required by the statute in order that he should be elected. Therefore, the disqualification relied upon by the petitioner was a disqualification which prevented opponent No. 1 from being elected. It was not a disqualification which brought about a vacancy by reason of a disqualification arising subsequent to the election.
5. It is then pointed out that the jurisdiction of the District Judge may arise if the case were to fall under Section 5 which specifically deals with disqualification of members and which provides that no person shall be elected, appointed or nominated a member of a school board, and then various qualifications and disqualifications follow, and it is urged that if the intention of the Legislature was to confer jurisdiction upon the District Judge, the educational qualification would have been provided for in Section 5 and not in Section 4. Now, the scheme of the Act seems to be fairly clear. Section 5 deals with eligibility of every member of the board. Section 4 deals with the eligibility of some of the members of the board. Section 4(4) deals with the eligibility of the members to be appointed by the State Government, and Section 4(7) deals with the eligibility of members who are to be elected under Sub-section (5) and therefore it is clear that the eligibility of members who are elected under Sub-section (5) could not have been dealt with in Section 5 which deals with the eligibility of every member of the school board. If the District Judge had jurisdiction to entertain this election petition on the ground of opponent No. 1 not being eligible to be elected, then it is clear that although it may not be a case of corrupt practice under Sub-section (5) it is a case of an illegality under Sub-section (7) which has materially affected the result of the election. Nothing can be clearer than this that inasmuch as opponent No. 1 has been elected although he was not eligible to be elected, the result of the election has been materially affected by opponent No. 1 being elected and someone else who was qualified not having been elected.
6. Strong reliance is placed on a judgment of this Court in Narayan Maruti v. District Judge, Kolaba (1952) 55 Bom. L.R. 314. In that case we were dealing with the scheme of the Bombay District Municipal Act which in material particulars differs from the scheme of the Bombay Primary Education Act. Under that Act Section 15 lays down the general disqualifications for becoming a councilor and Sub-section (1A) provides:
If any person is elected or nominated as a councilor in contravention of the provisions of Sub-section (1) his seat shall, subject to the provisions of Sub-section (1B), be deemed to be vacant.
Sub-section (2) of that section provides for disqualification arising subsequent to the election. Both under Sub-section (1) and Sub-section (2) the authority competent to decide whether a vacancy has occurred is the Collector. It was in the light of this section that we considered the jurisdiction of the District Judge before whom the election was challenged on the ground that the elected member did not possess the qualification mentioned in Section 15 and we pointed out that the jurisdiction to declare a vacancy on any of the grounds mentioned in Section 15 was exclusively conferred upon the Collector and therefore that jurisdiction could not be exercised by the District Judge. Now, when we turn to the Bombay Primary Education Act, as already pointed out, no machinery is provided for deciding whether a member elected was eligible to be elected either under Section 4 or Section 5. It is only when we turn to Section 7, which deals with subsequent disqualification, that the Act expressly provides that the State shall decide any question as to a disqualification arising under Section 7. It cannot possibly be suggested that the defeated candidate or a voter should be without any right if a person has been elected to the school board without possessing the necessary qualification under Section 4 or under Section 5. In the absence of any jurisdiction conferred either upon the Collector or the State Government, it is clear that it is only the District Judge while dealing with an election petition who can decide whether a person was elected without his having the necessary qualification or without his being eligible to be elected. It is equally clear that acceptance or rejection of a nomination paper is part of an election and therefore what the District Judge was doing in deciding that opponent No. 1 did not have the educational qualification was really deciding that the election was not properly held as required by the law in that a nomination paper was improperly accepted and that a person was elected who was not qualified to be elected. The learned Assistant Judge has taken the view that he has no jurisdiction to go into the question of the validity of the nomination in view of Section 6 of the Primary Education Act. In our opinion that decision is clearly erroneous. As we have already pointed out, his jurisdiction arise under Sub-section (2) of Section 6 and that jurisdiction is wide enough to cover a case of a person being elected without the necessary qualification or without being eligible to be elected. On the facts he has held that opponent No. 1 did not have the requisite educational qualification required under Section 4. Surprisingly enough, having come to that conclusion he has taken the view that there was no material irregularity which affected the result of the election. As we have already pointed out, the learned Judge is clearly wrong when he holds that the result of the election is not materially affected when a person not qualified to be elected has been elected.
7. We will, therefore, set aside the order of the learned Assistant Judge who dismissed the petitioner's petition and direct him to pass the necessary order for setting aside the election of opponent No. 1 in the light of this judgment. Rule absolute with costs against opponent No. 1. No order as to costs of opponent No. 2.