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Dattatraya Awadaji Shinde Vs. S.V. Bhave - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2905 of 1957
Judge
Reported in(1958)60BOMLR210
AppellantDattatraya Awadaji Shinde
RespondentS.V. Bhave
DispositionPetition rejected
Excerpt:
.....of primary education in the state of bombay. it means, therefore, that a husband's interest in his wife's employment must come into conflict with his position as a councillor and this is perfectly natural. there the interest is clearly sentimental or emotional. his prosperity must affect the position of the son and the interest that the son has in the prosperity of his father is clearly a material or a substantial interest. this grievance may well be agitated upon an election petition presented to the judge under section 16. in this connection, mr. patel has pointed out the election rules, in particular rule 9(h)(iii) and rule 46. he says that if section 16 provides for a remedy to the petitioner, there is no good reason as to why the petitioner should agitate the same question upon this..........in order to make the section applicable. it means, therefore, that a husband's interest in his wife's employment must come into conflict with his position as a councillor and this is perfectly natural. the object in enacting section 10(1)(f) is evidently to secure purity in municipal administration. if this purity in municipal administration were not maintained, there is likely to be chaos in the working of an institution, which is part of local self-government. the question, therefore, which one has to address onself to is what is the meaning of the expression 'interest' as occurring in section 10(1)(f)? now, according to the learned municipal commissioner, because the petitioner is interested in the employment of his wife, it is sufficient for the petitioner to incur the.....
Judgment:

Dixit, J.

1. The petitioner in this case is one Dattatraya Awadaji Shinde who resides at Kasba Peth, Poona 2. He has two wives, one of whom is Kalawatibai and this Kalawatibai is a municipal school teacher. Elections to the Poona Municipal Corporation are to be held in November 1957 and the petitioner filed a nomination paper, offering himself as a candidate from Ward No. 11. The scrutiny of his nomination paper was made by the Municipal Commissioner of the Poona Municipal Corporation on October 25, 1957, and by an order made on the same date, he rejected the nomination under Rule 9 of the Election Rules, holding that the nomination paper filed by him was invalid. It is the correctness of this order which has been challenged by Mr. Chandrachud appearing for the petitioner upon this petition under Article 227 of the Constitution.

2. The facts, as they appear in the order made by the Municipal Commissioner, are that the petitioner has two premises, in one of which his first wife lives, while his second wife, who is Kalawatibai, resides in House No. 95/A Shivajinagar, which is owned by the petitioner. The learned Commissioner concluded that it was not possible to accept the petitioner's contention that he had no interest in the employment of his wife, and in making the order this is how he put the situation:

Normally a husband and wife would be interested in each other's employment. Even if the husband and wife have separate income and live separately, still they can be deemed to have material interest in the employment of each other in the sense that there may arise a conflict between his or her interest in the employment of the spouse and the duty as councillor. In the present case the wife is actually living in a house owned by her husband even if the husband may be living with another wife in another house.

Upon this petition, two questions arise for decision. The first question is whether the petitioner has, directly or indirectly, interest in any employment with, by or on behalf of the Corporation. The answer to this question must depend upon an answer to another question which is whether Kalawatibai is in employment with, by or on behalf of the Corporation. Mr. Chandrachud appearing for the petitioner contends that Kalawatibai is in employment with the Municipal School Board and she is not in employment with the Poona Municipal Corporation. The second question which arises is, what must be the nature of interest of the petitioner in order to incur the disqualification for the purpose of Section 10(1)(f) of the Bombay Provincial Municipal Corporations Act, 1949.

3. In order to answer the first question, it is necessary to look at certain provisions first of the Provincial Municipal Corporations Act. The section, which is material, is Section 10(1)(f) which provides:

Subject to the provisions of Sections 13, 17 and 404, a person shall be disqualified for being elected and for being a councillor if such person-

Subject to the provisions of Sub-section (2), has directly or indirectly, by himself or his partner any share or interest in any contract or employment with, by or on behalf of the Corporation.

In order to understand this section, it would be necessary to refer to Section 4(2) of the Act, which provides:

The duties imposed on the Corporation in respect of primary education shall be performed in accordance with the provisions of the Bombay Primary Education Act, 1947, and for the purposes of the said Act the Corporation shall be deemed to be an authorized municipality within the meaning of the said Act with power to control all approved schools within the City, and to appoint an Administrative Officer.

The next section to look at is Section 63 which refers to obligatory duties of the Corporation. So far as material, it provides:

It shall be incumbent on the Corporation to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely-....

(15) maintaining, aiding and suitably accommodating schools for primary education;

In view, however, of the language of Section 4(2) it is now necessary to refer to certain provisions of the Bombay Primary Education Act, 1947. According to the preamble of the Bombay Primary Education Act:.it is the duty of Government to secure the development and expansion of primary education; and whereas it is the declared policy of Government that universal, free and compulsory primary education should be reached by a definite programme of progressive expansion; and whereas it is expedient to make better provision for the development, expansion, management and control of primary education in the Province of Bombay; It is hereby enacted as follows:

It is clear, therefore, that, according to this preamble, the object of the Bombay Primary Education Act is to make better provision for the development, expansion, management and control of primary education in the State of Bombay. There are certain definitions which it is necessary to refer to. The expression 'approved school' is denned in Section 2(2) as meaning a primary school maintained by the State Government or by a school board or by an authorized municipality or which is for the time being recognised as such by a school board or by the State Government or by an officer authorized by it in this behalf. Having regard to the language of Section 4(2) of the Bombay Provincial Municipal Corporations Act, there is no question that the Poona Municipal Corporation is an authorized municipality; and as such an approved school, according to Section 2(2), would be a primary school maintained by the Poona Municipal Corporation. The expression 'authorized Municipality' is denned in Section 2(6) as meaning a municipality which is authorised by the State Government under Sub-section (1) of Section 16 to control all approved schools within its area. The important provision is as regards the definition of the expression 'Municipal School Board' which is given in Section 2(11), and it means a school board constituted for the area of an authorised municipality under Section 3. The last definition to be noticed is the definition of the expression 'School Board' which is given in Section 2(19), and it means a district school board or a municipal school board, as the case may be. A reference to Section 3(2) of the Act shows that for each area of an authorized municipality there shall be a municipal school board, and Section 4 deals with the constitution of school boards. Briefly, the constitution is that a school board is to consist of a certain number of members, some of whom are appointed by Government and some of whom are elected by the authorised municipality. There is a group of sections which it would be necessary to refer to, and the first of these is Section 16 which, by Sub-section (1) provides:

The Provincial Government may authorize any municipality under the Bombay District Municipal Act, 1901, or under the Bombay Municipal Boroughs Act, 1925, to control all approved schools within its area.

Then according to Section 16(2):.all existing and future rights, liabilities, powers and duties of any municipality, which was a local authority under the Bombay Primary Education Act, 1923, immediately before the date of the coming into force of this Act, in respect of primary school teachers and other persons employed by it for the purposes of primary education shall on such date vest in or be performed or exercised by the said municipality as an authorised municipality under this Act;

Then Section 17 may be referred to, which, by Sub-section (1), Clause (c), provides:

Subject to the provisions of this Act and the rules made thereunder an authorised municipality shall perform the following duties and functions, namely:...

(c) to maintain an adequate staff of Assistant Administrative Officers, Supervisors, Attendance Officers, clerks, teachers, inferior servants and other staff as may in the opinion of the Provincial Government be necessary;

Section 18 deals with the powers, duties and functions of municipal school boards, the constitution of which has been referred to in Section 4. According to Section 18(1), subject to the provisions of the Act and the rules made thereunder, the municipal school board shall be responsible for the management and control of all primary schools which vest in the authorized municipality and for the control of all other approved schools within the area of the authorized municipality. Section 18(1), therefore, shows that a municipal school board is constituted for the management and control of all primary schools and the municipal school board is responsible for the management and control of the primary schools. What is important is that these primary schools vest in the authorized municipality, and since the Poona Municipal Corporation is an authorized municipality, all the primary schools within its area must, of necessity, vest in the Poona Municipal Corporation. The next section to refer to is Section 20 which, so far as material, provides:.every authorized municipality shall maintain an adequate staff of Assistant Administrative Officers, Supervisors, Attendance Officers, Clerks, primary school teachers and inferior servants and other staff (including engineering staff), as may in the opinion of the State Government be necessary for the administration, management and control of approved schools within its area....

Section 20(2) is more important, which provides, so far as material:

The staff maintained under Sub-section (1) shall be servants of the district school board or of the authorized municipality as the case may be, and shall receive their pay, allowances, gratuities and pensions from its primary education fund....

The expression 'primary education fund' is defined in Section 2(16) of the Act and the primary education fund is maintained under Section 44 of the Act. It is clear from the language of Section 20(2), therefore, that the pay, allowances, gratuities and pensions are paid from the primary education fund and the primary teachers referred to in Section 20(1) are the servants of the authorized municipality, viz. the Poona Municipal Corporation. Section 23 may also be referred to. That section deals with, what is called, 'the staff selection committee'. Now, the committee contemplated by Section 23 is to select candidates for appointments as Assistant Administrative Officers, Supervisors. Attendance Officers and teachers, and what is more important is Section 23(5) which says that the authorized municipality shall make appointments of the candidates so selected in accordance with the directions given by the staff selection committee. Reading, therefore, the Bombay Provincial Municipal Corporations Act with the Bombay Primary Education Act, it is clear that a municipal school board is constituted by Government for the purpose of controlling primary education. A municipal school board consists of two sets of members : (1) those appointed by Government and (2) those elected by the authorized municipality. There is, therefore, if one may say so, a sort of a dual control with regard to primary education. But there can be no question that the primary teachers are the servants of the Poona Municipal Corporation. It is not, therefore, possible to accept the contention of Mr. Chandrachud that the petitioner's wife, Kalawatibai, is in employment not with the Poona Municipal Corporation but with the Municipal School Board. The first point raised by Mr. Chandrachud, therefore, fails.

4. This leads me to the consideration of the first question, i.e., whether it can be said in this case that the petitioner has directly or indirectly interest in the employment of Kalawatibai with, by or on behalf of the Poona Municipal Corporation. This question and the second question, which I have mentioned earlier in the course of this judgment, really go together. In construing Section 10(1)(f), one has to ask oneself the question as to what is the sort of interest which the petitioner should have in the employment of Kalawatibai so as to incur the disqualification within the meaning of Section 10(1)(f). The expression which requires construction is the expression 'interest' occurring in Section 10(1)(f) and the real question is what is the exact connotation of the expression 'interest' occurring in Section 10(1)(f)? Here is a case of a husband wanting to offer himself as a candidate at a municipal election and he has a wife who is in the service of the Poona Municipal Corporation as a primary teacher. Now, when a wife is in service, her husband is interested in her employment and a wife is, and would be, interested in her husband's employment. That is the same thing as saying that a husband and his wife are interested in each other's employment. But that, to my mind, is a popular notion about the interest taken by one in the other's employment. The expression 'interest' contemplated by Section 10(1)(f) is something different. The interest contemplated by Section 10(1)(f) is such or should be such as is likely to come into conflict with one's duty as a councillor. In other words, there must be a conflict between interest and duty, in order to make the section applicable. It means, therefore, that a husband's interest in his wife's employment must come into conflict with his position as a councillor and this is perfectly natural. The object in enacting Section 10(1)(f) is evidently to secure purity in municipal administration. If this purity in municipal administration were not maintained, there is likely to be chaos in the working of an institution, which is part of local self-Government. The question, therefore, which one has to address onself to is what is the meaning of the expression 'interest' as occurring in Section 10(1)(f)? Now, according to the learned Municipal Commissioner, because the petitioner is interested in the employment of his wife, it is sufficient for the petitioner to incur the disqualification within Section 10(1)(f). The relationship between the petitioner and his wife Kalawatibai is not, and cannot be, a matter of dispute. The petitioner has got two wives and Kalawatibai stays in a house belonging to the petitioner himself. What is more, Kalawatibai has two children, a son and a daughter, and Mr. Chandrachud has not disputed on this petition that Kalawatibai resides in a house owned by the petitioner; nor is there any dispute that Kalawatibai has two children by the petitioner. The circumstance, therefore, of the petitioner having two premises is only a matter of convenience. The petitioner is as much living with his first wife as be is living with Kalawatibai in House No. 95/A Shivajinagar, Poona. It is not, therefore, difficult to reach the conclusion that the petitioner is living with his wife Kalawatibai in House No. 95/A Shivajinagar. In conceivable circumstances, a husband may depend upon his wife for the maintenance of his family and in such a case the husband wanting to be a municipal councillor may evidently have interest in the employment of his wife, when the wife happens to be a municipal servant. That, I think, is the clearest case of a husband wanting to be a municipal councillor, having interest in the employment of his wife who is a municipal employee. The expression 'interest' is not easy to define, but it is clear that Section 10(1)(f) is expressed in language as wide as possible. It is not necessary for the application of Section 10(1)(f) that the husband should have direct interest in the employment of his wife. It is sufficient if he has indirect interest in the employment of his wife. But the question still remains as to what is the meaning to be given to the expression 'interest'. This question came up for consideration in a case reported in M.M. Nandgaonkar v. Collector, Thana (1954) 57 Bom. L.R. 212. The meaning of this expression 'interest' is sufficiently expressed in para. 1 of the head-note, which is as follows:

The interest contemplated by Section 12(2)(b) of the Bombay Municipal Boroughs Act, 1925, need not necessarily be a pecuniary interest. The interest must be a material interest. It must be a substantial interest. It is not sufficient if the interest is purely sentimental or an interest arising out of a person having friendship with someone or being interested in his welfare.

5. It may be pointed out that the language of Section 12(2)(b) which was the subject of construction in M.M. Nandgaonkar's case closely resembles the language of Section 10(1)(f) with the difference of one word 'under' which occurs in Section 12(2)(b) and which does not occur in Section 10(1)(f). But that, I think, makes no difference to the principle which is to be applied to the facts of this case. The facts in M.M. Nandgaonkar's case were rather peculiar. The petitioner in that case was an elected member of the Thana Municipal Borough. After his election, he was elected Vice-President of the Municipality. The petitioner happened also to be the President of the Thana Municipal Kamagar Sangh since its inception in 1943. The petitioner as President of the Sangh was fighting the cause of the Municipal employees and he was responsible for raising industrial disputes which were referred to the Industrial Tribunal. Upon those facts, the question which arose for decision was whether it could be said of the petitioner that there was a conflict between interest and duty; the interest arising was in consequence of his fighting the cause of the municipal employees and his duty in consequence of his being the Vice-President of the Municipality. It is worthy of note that there was no question in that case of M.M. Nandgaonkar having any personal gain of his own, and it is clear that upon those facts this Court held that the disqualification contemplated by Section 12(2)(6) was not thereby incurred. In this case the facts do not admit of any dispute. The husband is wanting to be a municipal councillor and the wife is at this time already in employment with the Municipal Corporation to which the petitioner seeks election. What is more, the petitioner is living with his wife and his children. It may be conceded, looking to the fact that the petitioner owns a house in his own right in which Kalawatibai lives, that the petitioner is a man of substance. It is possible that he may not depend upon his wife for the maintenance of his family. But is this decisive of the matter? One has in such cases to take into consideration the relationship between the parties. It may perhaps be urged that to the extent to which the wife helps the husband in maintaining the family, the husband has interest in the employment of his wife, but for this there is no evidence. What is relevant is that the husband may get an opportunity or may have a temptation of showing favour in the employment of his wife with the Poona Municipal Corporation, and if the object in enacting the section is to maintain purity in municipal administration, it is evident that under those circumstances a disqualification under Section 10(1)(f) would be incurred. A case similar to the present case was decided in Champaklal Chottalal Parikh v. Mahendra Govindlal Chokshi (1955) Special Civil Application No. 1807 pf 1955 and the facts in that case very nearly resemble the facts in this case. In that case a son was wanting to be a municipal councillor of the Petlad Municipality and his father was a pleader for the Municipality to represent in various cases of assessment. It was found as a fact that the father and son were living together, and in dealing with this case, this is what the learned Chief Justice said:

In our opinion, the interest here is not the interest which a man may have in the prosperity of his friend. There the interest is clearly sentimental or emotional. When you have a person living jointly with his father, it seems to be inarguable that the son's interest in the prosperity of his father is purely sentimental or emotional. If the father earns more, he has more to spend on the family. His prosperity must affect the position of the son and the Interest that the son has in the prosperity of his father is clearly a material or a substantial interest.

Following, therefore, the principle laid down in M.M. Nandgaonkar's case and the principle also laid down in Champaklal Chottalal Parikh v. Mahendra Govindlal Chokshi we are of the opinion that the petitioner suffers from the disqualification contemplated by Section 10(1)(f). Mr. Chandrachud argued that in the context of changed and changing conditions of society, this may be too technical a view of the matter to take. Mr. Chandrachud may be right or may not be right. But what is important is purity in municipal administration. If a person wants to be a municipal councillor, there is nothing to prevent him from seeking election to the Corporation, when he cannot possibly be accused of having any interest in the employment of a near relation of his. But one must realise that cases of conflict between interest and duty have got to be avoided. Otherwise, purity in municipal administration would be impossible to achieve. In our view, Section 10(1)(f) is a salutary provision and there is a possible scope and opportunity for a municipal councillor to show favour, especially when the relationship is that of husband and wife, and we are clear that on the facts of this case Section 10(1)(f) is attracted. The learned Commissioner was, therefore, right in rejecting the nomination of the petitioner as invalid.

6. Mr. D.V. Patel appearing for opponent No. 1 has raised an objection to the maintainability of this petition. His contention is that under the Bombay Provincial Municipal Corporations Act there is a machinery provided whereby the question which the petitioner has now raised can be decided upon an election petition. The relevant provision in that connection is Section 16(1), which provides:

If the qualification of any person declared to be elected a councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or by reason of a material irregularity in the election proceedings, corrupt practice, or any other thing materially affecting the result of the election, any person enrolled in the municipal election roll may, at any time within ten days after the result of the election has been declared, submit an application to the Judge for the determination of the dispute or question.

There can, therefore, be no doubt that the contention which has been raised by the petitioner on this petition may also be raised upon an election petition. What has happened in the present case is that, according to the petitioner, there is an improper rejection by the Commissioner of his nomination. This grievance may well be agitated upon an election petition presented to the Judge under Section 16. In this connection, Mr. Patel has pointed out the Election Rules, in particular Rule 9(h)(iii) and Rule 46. He says that if Section 16 provides for a remedy to the petitioner, there is no good reason as to why the petitioner should agitate the same question upon this petition. He refers in this connection to a decision given by the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal : [1952]1SCR218 . There, their Lordships of the Supreme Court were dealing with Section 80 of the Representation of the People Act and Article 329(b) of the Constitution. Article 329(b) provides:

Notwithstanding anything in this Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

Mr. Chandrachud says that the principle laid down in this case is inapplicable, because their Lordships of the Supreme Court were dealing with a different statute and so the principle cannot possibly apply. In my view, Mr. Chandrachud is only partially correct. He is correct in so far as their Lordships of the Supreme Court were dealing with a specific case arising under Article 329(b) and the language of Article 329(b) is clear. It shows that the only machinery through which a grievance can be ventilated is the machinery provided by filing an election petition. The language of Section 16 of the Bombay Provincial Municipal Corporations Act is different. But Mr. Chandrachud would not be right when he contends that as a general rule, the principle would not be applicable. After all, that is a pronouncement of the highest Court in this country, and apart from the facts of the case, one may well bear in mind the general principle laid down in the case. That principle is that the Court may, in an appropriate case, take into consideration the fact that there is another remedy available to the petitioner of which he may take advantage but of which he has not taken advantage and the Court may, in certain circumstances, refer a party aggrieved to the specific remedy provided by the statute. To this principle there may possibly be one exception and, that is, if an authority makes an order without jurisdiction, it would be open to a party to come up by a writ petition under Article 226 and 227 of the Constitution. In other words, a case may arise when exceptional circumstances are shown to exist. Their Lordships of the Supreme Court, however, have observed (p. 65):

Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.

These words are, I think, of general application, and although I am willing that the principle laid down in Ponnuswami's case should be confined to the facts of that case, the High Court may rely upon the principle and may refuse to exercise its jurisdiction save in exceptional circumstances. Mr. Patel also referred to a decision of this Court reported in Bhairulal Chunilal v. State of Bombay : AIR1954Bom116 . That was a case where a writ of quo warranto was sought. There also the same principle has been affirmed and emphasized that the Courts must always be reluctant to interfere with elections except on the clearest and strongest of grounds. So, that is the ambit within which the Court may exercise its jurisdiction under Article 226 and 227 of the Constitution. In our view, therefore, it is sufficient for the disposal of this petition to reject the petitioner's claim on the two points mentioned in the earlier part of this judgment. It may not be necessary to say that this remedy would not at all be open to the petitioner.

7. On these grounds, I think, the view taken by the Municipal Commissioner is right. The petition, therefore, fails and the rule will be discharged with costs.


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