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Dagadu Maruti Jadhav Vs. Narendrapal Jaswantpal Barara and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 274 of 1985
Judge
Reported in1985(2)BomCR399a
ActsMaharashtra Municipalities Election Rules, 1966 - Rule 15(5) and 15(6)
AppellantDagadu Maruti Jadhav
RespondentNarendrapal Jaswantpal Barara and ors.
Appellant AdvocateR.R. Jethalia, Adv.
Respondent AdvocateN.P. Chapalgaonkar, Adv. for ;Vivek Bhavthankar, Adv. for respondent No. 1, ;B.A. Darak, Adv. for respondent Nos. 2 and 3, ;A.B. Naik, A.G.P., for respondent No. 5 and ;B.N. Bajpai, Adv. for responden
Excerpt:
election - appeal - rule 15 of maharashtra municipalities election rules, 1966 - general scheme of rule 15 is to see that appeal should be disposed of expeditiously - proper hearing to persons likely to be affected by order passed in appeal is also insisted upon - detailed time table for filing of appeal and procedure to be followed in appeal has been provided for - appeal lies to district judge from any decision of returning officer accepting or rejecting nomination paper - non-compliance with above requirements must result necessarily in rejection of appeal. - - ' 7. in the meantime, on 2nd of may, 1985 the election was held as scheduled and the petitioner has been defeated. jethalia's contention that non-provisions of the consequences of non-compliance with a particular provision.....r.a. jahagirdar, j.1. '(5) in every appeal under this rule, the appellant shall join as respondent all the candidates (other than himself) whose nominations have been accepted by the returning officer'.this is sub-rule (5) of rule 15 of the maharashtra municipalities election rules, 1966. the interpretation of this sub-rule and, in fact the interpretation of entire rule 15 are involved in this petition.2. the facts are few and can be stated to be undisputed. the petitioner is a resident of nanded town. the election programme for the municipality of nanded was announced. elections to the municipality of nanded were to be held and the election programme commenced on 23rd of march, 1985, which was the first day for filing the nomination papers. the last date for filing the nomination papers.....
Judgment:

R.A. Jahagirdar, J.

1. '(5) In every appeal under this Rule, the appellant shall join as respondent all the candidates (other than himself) whose nominations have been accepted by the Returning Officer'.

This is sub-rule (5) of Rule 15 of the Maharashtra Municipalities Election Rules, 1966. The interpretation of this sub-rule and, in fact the interpretation of entire Rule 15 are involved in this petition.

2. The facts are few and can be stated to be undisputed. The petitioner is a resident of Nanded town. The election programme for the Municipality of Nanded was announced. Elections to the Municipality of Nanded were to be held and the election programme commenced on 23rd of March, 1985, which was the first day for filing the nomination papers. The last date for filing the nomination papers was 4th of April, 1985 by which date several persons had filed nomination papers for the election to ward No. 54. Of these persons, nomination papers of 10 were accepted. While doing so, on 6th of April, 1985, which was the date of the scrutiny of the nomination papers, the Returning Officer overruled the objection of the petitioner in respect of the nomination paper of the first respondent. Respondents Nos. 1 to 4 and other five candidates are those whose nomination papers have been accepted. The petitioner had objected to the candidature of the first respondents on the ground that the latter was interested in a contract which had been entered into with the Municipality.

3. Aggrieved by the aforesaid order of the Returning Officer, the petitioner preferred an appeal, being Miscellaneous Appeal No. 18 of 1985, to the District Judge under Rule 15 of the Election Rules. In the memo of the appeal, the petitioner had added only the first respondents among candidates whose nomination papers had been accepted. He had not added other eight persons as respondents. It has been mentioned in the judgment of the District Judge that the names of all the candidates whose nomination papers had been accepted by the Returning Officer were also presented on the same day, namely, on 9th of April, 1985, which was the last date for filing the appeal.

4. The first respondent contended that the appeal preferred by the petitioner was not maintainable inasmuch as he had not joined to the appeal as respondents all the candidates whose nominations had been accepted by the Returning Officer. It was also contended on behalf of the first respondent that he had not been served with an individual notice of the appeal. On these two grounds he prayed for the dismissal of the appeal preferred by the petitioner.

5. The learned District Judge overruled the objection relating to the non-service of the individual notice in view of the clear provision contained is sub-rule (6) of Rule 15. He, however, upheld the objection of the first respondent that the provision contained in sub-rule (5) of the rule was mandatory and since the petitioner had not complied with that mandatory provision, the appeal was not maintainable. He, therefore, proceeded to reject the appeal by his judgement and order dated 15th of April, 1985.

6. Challenging the aforesaid order of the learned District Judge, the petitioner has approached this Court under Article 227 of the constitution. The rule in this petition was issued by this Court on 23rd of April, 1985 and it was also directed that the rule shall be heard on 26th of April, 1985. Mr. Chapalgaonkar, learned Advocate, appeared on behalf of respondent No. 1 and waived service of notice. No interim relief was granted in view of the fact that the petition itself was to be heard on 26th of April 1985 and the election was to take place on 2nd of May, 1985. For reasons which the Division Bench which was dealing with this petition has recorded, the petition could not be heard on 26th of April, 1985. However, on 30th of April, 1985, the Division Bench passed a detailed order explaining as to how the petition could not be heard on the date fixed, namely, 26th of April, 1985. On the question of the interim relief, the Division Bench was not persuaded, as contended on behalf of the petitioner before it, that the petitioner had in fact substantially complied with the requirement of sub-rule (5) of Rule 15. Therefore, the Division Bench stated, ... ... as no prima facie material is revealed on the main question about compliance of the relevant Rules, we are not inclined to accept the prayer of the petitioner for stay.' Clarifying that no final opinion is expressed in the order dictated on 30th of April 1985, the Division Bench proceeded to State. 'It is further made explicit that the election even to the concerned ward with its result would be subject to the result of this petition. All the learned Counsel for the respondents agree to it.'

7. In the meantime, on 2nd of May, 1985 the election was held as scheduled and the petitioner has been defeated. On this ground, Mr. Chapalgoankar suggested that the petitioner has now an alternative remedy of filing an election petition under section 21 of the Maharashtra Municipalities Act, 1965. The petition, therefore, deserves to be dismissed. On the question whether the order passed by the learned District Judge in the appeal preferred under Rule 15 by the petitioner could operate as final as stated in sub-rule (10) of Rule 15, Mr. Chapalgoankar invited our attention to a Full Bench decision of this Court in Dattatraya Narhar Pitale v. Prabhakar Dinkar Gokhale and another, : AIR1975Bom205 . This judgement undoubtedly lays down that despite the finality which apparently attaches itself to the order passed by the District Judge in an appeal under Rule 15, the scope of the hearing of the elections petition preferred under section 21 of the Maharashtra Municipalities Act is wide enough to examine even the correctness or otherwise of the order passed in proceedings under Rule 15. However, we are not agreeable to Mr. Chapalgoankar's suggestion for dismissing this petition because of two reasons. One is the clear direction given by the earlier Division Bench that the result of the election would be subject to the result of this petition and that all the Advocates appearing for the respondents had agreed to the same. Secondly, the District Court, to which election petition is also to be presented, will not take a view contrary to the one already given in the appeal under Rule 15. We have, therefore, proceeded to hear and dispose of this petition on merits.

8. Since the interpretation of Rule 15 is involved in this petition, it would be useful to reproduce the entire Rule, which is as follows :

'15. Appeal.---(1) An appeal shall lie to the District Judge of the district in which the municipal area is situated as herein provided from any decision of a Returning Officer accepting or rejecting a nomination paper.

(2) Any candidate aggrieved by a decision of the Returning Officer accepting or rejecting a nomination paper, may present an appeal therefrom to the District Judge within a period of three days from the date of publication of the list of validly nominated candidates :

Provided that, where an appeal is presented, such candidate shall, not later than 3, O'clock in the afternoon of the next day following the date of presentation of the appeal to the District Judge, give a notice of the appeal to the Returning Officer.

(3) If one or more notices has or have been received in accordance with the proviso to sub-rule (2), the Returning Officer shall, immediately after the expiry of four days from the date of publication of the list of validity nominated candidates---

(a) publish a notice in Form V by affixing it to his notice board together with a statement that the hearing of the appeal shall commence before the District Judge on the third day after the date of such publications of the notice or if that say is a public holiday, the next succeeding day which is not a public holiday and that the copy of the petition of appeal is available with the Returning Officer; and

(b) send to the District Judge a copy of each of the notices, the intimation referred to in Clause (a) and the list of validly nominated candidates.

(3-A) On receipt of copies of notices and other documents referred to in the last preceding sub-rule, the District Judge shall intimate to the Returning Officer the day or days appointed by him for hearing of the appeal or appeals and also notify such day or days on his notice board. As soon as such intimation is received from the District Judge, the Returning Officer shall also display a copy of such intimation on his notice board for informing the parties concerned the date or dates appointed for hearing the appeal or the appeals, as the case may be.

(4) The Returning Officer shall, on application may by or on behalf of a candidate, supply forthwith to the applicant a copy of the decision accepting or rejection a nomination paper together with the statement of reasons, recorded by him.

(5) In every appeal under this rule, the appellant shall join as respondents all the candidates (other than himself) whose nominations have been accepted by the Returning Officer.

(6) The intimations affixed to the notice board of the Returning Officer under sub-rule (3) and (3-A) shall be deemed to be sufficient notice, both of the presentation of an appeal under this rule and of the date on which the hearing thereof shall commence before the District Judge and it shall not be necessary to give any other notice to the appellants or the respondents and the appeal or appeals shall be deemed to have fixed for peremptory hearing on the said date. For the purpose of the appeal, the District Judge may, except as provided in this Rule, exercise any of the powers of Civil Court.

(7) Every appeal under this rule shall be heard de die in diem and disposed of by the District Judge as expeditiously as possible, and his decision shall be communicated forthwith to the Returning Officer.

(8) In every case where notice of any appeal has been given to the Returning Officer, he shall, upon receipt of the communications of the District Judge referred to in sub-rule (7), republish by affixing to his notice board the list of validly nominated candidates after revising it, if necessary in conformity with the decision of the District Judge.

(9) The decision of the District Judge on appeal under this rule, and subject only to such decision, the decision of the Returning Officer, accepting or rejection the nomination of a candidate shall be final and conclusive and shall not be called in question in any Court.

(10) Any appeal presented to the District Judge under this rule may be inquired into and disposed of by any Judge not lower in rank than as Assistant Judge to whom the case or such cases generally may be referred to by the District Judge, and any reference to the District Judge in this Rule shall then be construed as a reference to such Judge.'

There is no provision in the Act itself for an appeal against the rejection or acceptance of a nomination paper by the Returning Officer. However, in exercise of its rule making power conferred upon it by section 321 of the Act, the State Government has made rules for, among other things, an appeal against the order passed by the Returning Officer.

9. Mr. Jethalia, the learned Advocate appearing in support of the petition, has canvassed the view that the word 'shall' mentioned in sub-rule (5) is not conclusive of the question whether the provision contained in sub-rule (5) is mandatory or directory. Insofar it is the contention of Mr. Jethalia that the use of a particular world is not conclusive on the question, he is undoubtedly right. In a given case, the word 'shall' may mean 'may'; similarly the word 'may' shall mean 'shall' depending upon the context in which that word is used. Mr. Jethalia, however, contends that since the consequences for non-compliance with requirement mentioned in sub-rule (5) are not provided for either expressly or by necessary implication, it must be held that the word 'shall' as mentioned in sub-rule (5) is directory in nature and not mandatory. Non-compliance with such a directory provision should not result, since it is not so provided, in the rejection of the appeal itself.

10. In support of his contention, reliance was placed by Mr. Jethalia on Jagan Nath v. Jaswant Singh and others, : [1954]1SCR892 . This was a case arising under the provisions of the Representation of Peoples Act, as it then stood. Section 82 of the Act provided as follows :-

'A petitioner shall join as respondent to his petitioner all the candidates who were duly nominated at the election other than himself if he was so nominated.'

There were certain other provisions also in the Act such as, for example, those contained in sections 81, 83, and 117 of the Act. The Act then provided in section 90(4) that the Tribunal (viz., the Election Tribunal) may dismiss an election petition which did not comply with the provisions of section 81, 83 or 117 of the Act. Examining the said provision, the Supreme Court noted that the Election Tribunal had been given powers in express terms to dismiss the election petition which had not complied with the requirements section 81, 83 or 117 and no such powers had been given in respect of non-compliance with the provisions of section 82. This was one of the grounds on which the Supreme Court held that the requirement of joining as respondents be a petitioner all the candidates who were duly nominated at the election was directory in nature and not mandatory. This view was also supported by reference to a provision contained in section 90(1) enabling any candidate, who had not been joined as respondent in the election petition, to have himself impleaded as a party in the case within the prescribed time. The latter provisions was thought to indicate that the array of parties as provided by section 82 was not final and conclusive and the defects could be cured. This view also, according to the Supreme Court, was buttressed by the provisions contained in sections 110, 115 and 116 of Chapter IV.

11. Mr. Chapalgaonkar has rightly pointed out that the Supreme Court did not hold that the requirement contained in section 82 of the Representation of Peoples Act was not mandatory merely on the ground that the non-compliance with the said requirement was not visited with penal consequences. Mr. Jethalia's contention that non-provisions of the consequences of non-compliance with a particular provision must necessarily lead to the conclusion that the said provision is directory is, not strengthened by the authority in Jagan Nath's case on which he has placed strong reliance.

12. Probably, due to the view taken by the Supreme Court in Jagan Nath's cased, the parliament stepped in and brought an amendment to the Act. After the amendment, section 82 required, among other things, a petitioner to join as respondents in his petition all the contesting candidates in a case where the relief claimed was the declaration as void, the election of all or any of the returned candidates and for a further declaration that the petitioner or any other candidates has been duly elected. Section 90(3) enjoined the Election Tribunal to dismiss an election petition which did not comply with the provisions of section 82. It was, therefore, held in K. Kamaraja Nadar v. Kunju Thevar and others, A.I.R. 1958 S.C. 678, by the Supreme Court that section 90(3) was mandatory and the election petition not complying with the requirement of section 82 was liable to be dismissed. Only a brief reference may be made to some other decisions.

13. In Shri Baru Ram v. Smt. Prasanni and others, : [1959]1SCR1403 , note was taken of the earlier decision in Jagan Nath's case. However, in Baru Ram's case, the provisions which fell for interpretation were those contained in sections 33 and 36 of the Representation of Peoples Act. Sections 33(5) required the candidates to supply a copy of the electoral roll showing that he was a voter in one or the other constituency. Section 36(2)(b) provided that on the candidate's failure to comply with the said requirement, his nomination paper was liable to be rejected. The Supreme Court noted that where the statute required a candidate to produce the prescribed evidence and provided for a penalty for his failure to do so, the consequence of penalty must follow and, therefore, the requirement of producing of the prescribed copy was mandatory.

14. A case where a particular requirement was held to be directory may also be noted. In Kumaranand v. Brij Mohan Lal and another, : [1965]1SCR116 , section 119-A was examined. That provision, as it then stood, required every person preferring an appeal to enclose with the memorandum of appeal 'a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either made has been by him either in a Government Treasury or in the Reserve Bank of India favour of the Election Commission as security for the costs of the appeal'. The appellant before the Supreme Court had, instead of enclosing with the memorandum of appeal a Government Treasury receipt as required, had deposited in the office of the High Court a sum of Rs. 500. That amount was accepted was duly credit in the name of the appellant as a security deposit. Though noticing that the appellant had not complied with the requirements of section 119-A the Supreme Court held, that fact itself did not affect the jurisdiction of the High Court to entertain he appeal. Proceeding further, the Supreme Court held, 'it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal.' The dismissal of the appeal before the High Court, which held led the appellant to the Supreme Court, was held to be unjustified, because the High Court erred in not taking into consideration the conduct of the office of the Register in accepting the deposits of costs and the defective presentation of the appeal which contributed to the irregularity. In those facts, it was held, 'The High Court should have directed that the amount which had been deposited under a tender form, be deposited in the Government Treasury in the name of the Election Commission.' By necessary implication, the Supreme Court thus seems to have taken the view that section, 119-A of the Act was directory.

15. The three authorities, which we have noted, one noticing a directory provision, second noticing a mandatory provision, and again the third noticing on the language of the provision a directory provision, necessarily suggest that ultimately the question as to whether a particular provision is mandatory or directory will have to be decided by an examination of all the relevant provisions of the Act and not merely by the language of a particular section or a Rule or a word in Raza Buland Sugar Co, Ltd., Rampur v. The Municipal Board, Rampur, : [1965]1SCR970 , the majority Judgement delivered by Wanchoo, J., pointed out that the question whether a particular provision of a statute which on the face it appears mandatory by the use of the word 'shall' or merely directory should not be resolved by laying down any general rule. The question depended upon the facts of each case and for that purpose the object of the statute in making the provision can be said to be a determining factor. Proceeding further, it was stated as follows :-

'The purpose for which the provision has been made its nature, the intention of the legislature in making the provision, the serious general inconvenience or justice to persons resulting from whether the provisions is in one way or the other, the relating of the particular provision to other provision read dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.'

16. It, thus, becomes imperative for us to examine the entire Rule 15, which we have taken the liberty of reproducing above, and see whether sub-rule (5) of the said Rule, or, for that matter, any other sub-rule, is mandatory or directory, despite the use of either of the words, 'may' and 'shall'. While doing so, we must find out whether there in any internal evidence in the rule itself which could suggest one way or the other whether the word 'shall' used in sub-rule (5) is mandatory or directory. The general scheme of Rule 15 is to see that the appeal should be disposed of expeditiously, though proper hearing to persons likely to be affected by an order passed in appeal is also insisted upon. A detailed time table for the filing of the appeal and the procedure that should be followed in the appeal has been provided for. The appeal lies to the District judge from any decision of a Returning Officer accepting or rejection a nomination paper. The appeal is to be preferred within a period of three days from the date of the publication of the list of validly nominated candidates. After the appeal is so presented, the appellant is required to give a notice of the appeal to the Returning Officer before 3 p.m. on the day next following the date of the presentation of the appeal. In other words, by 3 p.m. on the forth day from the date of the publication of the list of validly nominated candidates, notice of the appeal is to be given be the appellant himself to the Returning Officer. Sub-rule (3) require the returning Officer to publish a notice in From V after the expiry of four days from the date of the publication of the list of validity nominated candidates. Along with the notice, the Returning Officer is required to publish a statement that the hearing of the appeal shall commence before the District Judge on the third day after the date of such publication of the notice.

A quick calculation shows that according to the his time table, which is incorporated in a statutory rule, the first day of the hearing of an appeal is to commence on the eighth day after the publication of the list of validity nominated candidates. The Returning Officer is also required to send a copy of each of the notices received by him and the list of validly nominated candidates to the District Judge. On receipt of the said documents, the District judge, in turn, intimates to the Returning Officer the day or days appointed by him for hearing the appeal or appeals and also notify the same on his own notice board. On receipt of such intimation from the District Judge, the Returning Officer is required to display a copy of that intimation on his notice, Board, which is regarded as sufficient notice of both the presentation of the appeal and of the date of hearing of the appeal before the District Judge. It is explicitly provided in sub-rule (6) that it shall not be necessary to give any other notice to the appellants or the respondents. It is the light of this provision that the learned District Judge in this case held rightly that the objection of the first respondent before us that the appeal was liable to be dismissed on the ground that individual notice to him had not been given was untenable.

17. The provisions as summarised above necessarily indicate, to our mind, that the hearing of an appeal must take place with notice to all the persons likely to be affected by any order passed in the appeal. Mr. Jethalia, however, insists that only those persons, whose names appears in the memo of appeal, will be heard in the appeal and the provisions themselves do not insist that all the candidates whose nomination years had been accepted by the Returning Officer should necessarily be apprised of the appeal or the proposed dates of hearing f the appeal. If it is correct to say that the provisions indicate that all the persons who are likely to affected by any order passed in the appeal must be heard in an appeal, we must proceed to find out whether every person whose nomination paper has been accepted is likely to be affected by any decision given in the appeal. In an election, every candidate is interested either positively or negatively, in every other candidates. Many times, two or more persons belonging to the same group or party file nomination papers as a measure of abundant caution so that in case one or the other of the persons belonging to the same group or party is held to be disqualified, one may remain in the field. It is not inconceivable that certain candidate may desire the some other candidates should necessarily be in the field for the reason that the other candidates may eat into the votes of a third candidate, who is in a sense real rival. The permutations and the combinations of the interest involved in an election are many. The importance of the provision relating to the withdrawal of the nomination papers must also be noted. Many persons with draw in favour of certain candidates. If in such a case, the nominations paper of a person which is accepted is set aside in an appeal, the withdrawal is rendered counter-productive. It is, therefore, clear that every candidates whose nomination paper has been accepted by the Returning Officer is a person whose interest are likely to be affected by any order passed in the appeal.

18. It should also be noted that the nomination paper of a candidate may be rejected by the Returning Officer suo motu, apart from on the objection raised by a contesting candidates. It is possible to say that in such a case, the person preferring an appeal will not add any one as a party? An appeal lies not merely against the acceptance of a nomination paper, but also against its rejection. The rule itself does not make a distinction between an appeal against a decision accepting a nomination paper or a decision rejecting a nomination paper. In the case of an appeal from an order rejecting a nomination paper, naturally all the persons whose nominations have been accepted by the Returning Officer are necessary parties. It is inconceivable that an appeal from an order of rejection can be heard in the absence of all the candidates whose nominations have been accepted. Since the rule itself does not make any distinction between the two types of appeals, it would be erroneous to hold that sub-rule (5) will apply only to an appeal from an order of rejection and will not apply to an appeal from an order of acceptance of a nomination paper. To accept the argument urged on behalf of the petitioner will be tantamount to re-writing sub-rule (5) as follows:

'In every appeal under this rule, the appellant shall join as respondents all the candidates (other than himself) whose nominations have been accepted by the Returning Officer:

Provided, however, that in an appeal from an order accepting a nomination paper, the appellant may join such respondents as he deems fit.'

Clearly, this is impermissible.

19. Now, we turn to what can be called external evidence, because it is available outside Rule 15. Sub-section (10) of section 21, which deals with the disputes in respect of election of the councillors of a Municipality makes a detailed provision as to who should be made parties to an election petition. The provisions relating to the joining of other candidates to an election petition vary with the nature of the election petition and the reliefs claimed in the same. The Legislature has taken care to make such provision. The rule making authority could not be unaware of this provision. If, despite this, it is provided in Rule 15 that in every appeal under that rule, all persons whose nomination papers have been accepted by the Returning Officer shall be joined as respondents, it must be regarded that the rule making authority necessarily thought that all such persons should be necessarily joined as parties. In our opinion, this conclusion is reinforced by the fact that the word 'shall' has been used in the said sub-rule and also by the fact that the words 'all the candidates' have been used.

20. Thus analysing the purpose for which the provision has been made and its nature, the intention of the Rule making authority in making that provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which arise on the facts of this case including the language of the provision, we are of the opinion that sub-rule (5) of Rule 15 of the Maharashtra Municipalities Election Rules is mandatory in character and non-compliance with the requirement in that sub-rule must result necessarily in the rejection of the appeal, though no provision has been explicitly made for rejection of the ground.

21. In the result, this petition must fail. Rule is discharged with no order as to costs.


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