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Ramsing Ratansing Pardeshi Vs. the Municipal Corporation of the City of Poona - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1816 of 1958
Judge
Reported in(1959)61BOMLR964
AppellantRamsing Ratansing Pardeshi
RespondentThe Municipal Corporation of the City of Poona
Excerpt:
.....act (bom. lix of 1949), sections 10(1)(f), 10(2)(b)(v)-close relationship, without more, with person having contract with, or employed by, municipality whether sufficient to disqualify candidate under section 10(1)(f)-applicability of section 10(2)(b)(v) to case where disqualification from being elected as member comes up for determination.;mere close relationship with a person having a contract with, or being in the employment of, a municipal corporation is not sufficient to disqualify a candidate under the provisions of section 10(1)(f) of the bombay provincial municipal corporations act, 1949.;m.m. nandgaonkar v. collector, thana (1954) 57 bom. l.r. 212, champaklal chhotalal parikh v. mahendra govindlal chokshi (1955) special civil application no. 1807 of 1955, decided by chagla,..........it is permissible to take into account contracts before the date of the candidature during the official year in which the election was held in order to consider the qualification or disqualification of a candidate for the purpose of election, since if sub-section (2) applies the word 'has' is capable of that construction. his argument is that though the words are 'has any share or interest in any contract or employment', if one refers to clause (v) of sub-section (2) which speaks of 'occasional sale of any article, in which he regularly trades not amounting to a value exceeding in any one official year es. 2000' would show that the words 'has any interest in any contract or employment' must mean any interest in any contract or employment at least during the official year when he.....
Judgment:

Patel, J.

1. [His Lordship after stating the facts, proceeded.] It has been argued by Mr. Gokhale appearing for the petitioners in all these cases that Section 10(f) of the Bombay Provincial Municipal Corporations Act, 1949, is widely worded and that, when it says.a person shall be disqualified for being elected and for being a councillor if such person-.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;

it means that his close relationship with an employee amounts to interest-may be indirect-in the employment of the Corporation and that construction is strengthened when one has regard to the words 'directly or indirectly'; he says further that this provision is made for the purpose of maintaining purity of Municipal administration and that could only be done if a person is disqualified on the ground of very close and near relationship. Now this question has come before this Court in the past. In the case of M.M. Nandgaonkar v. Collector, Thana (1954) 57 Bom. L.R. 212 a question arose in reference to Section 12(2)(b) of the Bombay Municipal Boroughs Act which is somewhat similar to the present section. It was there held that the interest contemplated by Section 12(2)(b) of the Bombay Municipal Boroughs Act, 1925, need not necessarily be a pecuniary interest; but the interest must be a material interest. It is not sufficient if the interest is purely sentimental or an interest arising out of a person having friendship with some one or being interested in his welfare. The position with reference to the near relationship was made further clear by Chagla, C.J. and Mr. Justice Dixit in Champaklal Chhotalal Parikh v. Mahendra Govindlal Chokshi (1955) Special Civil Application No. 1807 of 1955, decided by Chagla, C.J. and Dixit, J., on December 7, 1955 (Unrep.). In dealing with Section 15(1)(f) of the District Municipal Act, 1901, which also is worded in similar language, it was observed that the interest contemplated by this sub-section need not necessarily be a pecuniary interest; on the other hand it must not be a sentimental interest, but it must be a substantial or material interest and the question was whether in the employment of his father as a lawyer of the municipality respondent No. 1 could be said to have an interest. Since the father and the son were living together, on an application of the test as accepted in the case of M.M. Nandgaonkar v. Collector, Thana, it was held that the son would have a material interest in the employment of his father. To the same effect are the observations in the case of Dattatraya v. S.V. Bhave [1957] 60 Bom. L.R. 210, which was a case of husband and wife living together and the wife was an employee of the Municipal Corporation as a teacher under the School Board. It, was found as a fact that the husband and wife were living together and thereafter applying the test it was held that the husband had material interest in the employment of the wife.

2. Mr. Gokhale, however, relies on certain observations at page 215 of this case wherein it is said:.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.

He argued that this is sufficient to found his proposition that close relationship without more is sufficient in itself to disqualify a member or a candidate. It is not possible to accept this contention. It was made clear in the beginning of that paragraph that the Court was following the principle laid down in Nandgaonkar's case and in Champaklal Chotalal Parikh v. Mahendra Govindlal Chokshi and on the facts of that case it was held that Section 10(1)(f) was attracted. The observations in a case must be taken in the context in which they appear. They have been limited to the facts of that ease after accepting the principle laid down in the cases referred to. I may also refer to the case of England v. Inglis. 4 It was observed by Salter J. (p. 639) :-.An 'interest' within the meaning of the section must, I agree, be something more than a sentimental interest, such as arises from the natural love and affection of a man for his son; it must be a pecuniary or, at least, a material interest; but I do not see on what principle it must necessarily be a pecuniary advantage.

The other Judge accepted the same definition as being warranted by authorities and on the facts of the case it was held that the member came within the disqualification. It is clear, therefore, that mere close relationship with a person having a contract with, or being in the employment of, a municipal corporation is not sufficient to disqualify a candidate under the provisions of Section 10(1)(f) of the Municipal Corporations Act.

3. A further contention is made by the learned Counsel for the petitioner on another aspect of the section. He says that Section 10(1)(f) must be read in the light of Sub-section (2) which qualifies Sub-section (1)(f) and he refers us to Clause (v) of Sub-section (2). He says that it is permissible to take into account contracts before the date of the candidature during the official year in which the election was held in order to consider the qualification or disqualification of a candidate for the purpose of election, since if Sub-section (2) applies the word 'has' is capable of that construction. His argument is that though the words are 'has any share or interest in any contract or employment', if one refers to Clause (v) of Sub-section (2) which speaks of 'occasional sale of any article, in which he regularly trades not amounting to a value exceeding in any one official year Es. 2000' would show that the words 'has any interest in any contract or employment' must mean any interest in any contract or employment at least during the official year when he offers himself as a candidate. At first sight the argument does appear to be attractive. It is not possible, however, to accept it, as there are obvious difficulties in so construing the section. Section 10, Sub-section (1) which provides for disqualification, is intended to apply to two kinds of cases; (i) for being elected as a member and (ii) after election for being a councillor. In the first case the only period that can come in question is the period between the date of nomination and the date of the declaration of the results, while in the other case it would be immediately on his taking charge or declared a member, to the date when fresh elections take place and that would be a long period of at least 4 years. A person has an interest, if during the period to which the provision applies, he is interested in a contract. In the first case mentioned that would be the period between the nomination and the declaration of the results, while in the other case it will be the full period from the date of his being elected as a councillor to the date when he vacates his office in the ordinary course. From its very nature the provisions of Clause (v) of Sub-section (2) of Section 10 cannot apply to the first kind of cases and were never apparently intended to apply. There cannot be any official year nor any one official year in reference to such a case; It would further appear that, so far, no provision of this kind has been heard to have been applied in the manner suggested, and it would result in somewhat unusual construction of the section to hold that the period should be the official year. If once that interpretation is accepted there is no reason why that particular official year and not a period of five years should be taken. We think that Clause (v) of Sub-section (2) could only apply to the second kind of cases and was never intended to apply to the first kind of cases and it appears that when Section 10(i)(f) has to be considered for the purpose of a disqualification from being elected as a member it must stand by4tself, Sub-section (2)(v) not being applicable.

4. The learned Counsel appearing for the respondents has argued that Section 10(1)(f) is made subject to Sub-section (2) and, therefore, in every case the provisions of Sub-section (2) must be held to apply as an exception to the disqualification stated in Clause (f) of Section 10(1), as he stands to have the advantage of the value of the contracts being less than Rs. 2,000. I have already indicated that this sub-clause cannot from its very nature apply and can have no application. It is contrary to fundamental principles of election law to carry a so-called disqualification to previous years and then hold a candidate disqualified if his case does not come within the exception. However small the value of the contract may be, the candidate would be disqualified if he has an interest in the same at the material time. As said before this provision is applicable only to those eases where the question comes up for determining qualification of a sitting member.

5. Therefore, if at the date when a person is offering himself for election and thereafter until election if he has got any interest directly or indirectly by himself or his partner in any contract or employment, whatever the value he must be disqualified, and there is no question of considering the value of the contracts since there are no years and no official year during that period. We must examine, therefore, all these cases from this point of view.

6. [The rest of the judgment is not material to this report.]


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