Sreenivasa Rau, J.
1. The point for consideration in this appeal is whether the learned Civil Judge had jurisdiction to entertain the election petition filed before him by the present Appellant under Section 20 of the Mysore Town Municipalities Act 1051. The ground on which the election of Respondent was sought to be set aside was that not being 25 years of age he was disqualified to be a Municipal Councillor by virtue of Section 14 (1) (e).
Under Section 14 (3) it is provided that, if any question or dispute arises whether a vacancy has occurred under that section, the orders of the Government shall be final for the purpose of deciding such question or dispute. Under Section 20 of the Act any candidate who stood for election or any ten persons qualified to vote at that election, may apply to the Election Commissioner for the determination of the validity of the election.
The learned Civil Judge before whom the election petition came up for consideration in his capacity as Election Commissioner held that the only forum before which the question of disqualification should be raised was the Government by virtue of Section 14 (3) and that, therefore, the matter could not be agitated before the Election Commissioner under Section 20. He accordingly held that the election petition was not maintainable and dismissed it on this preliminary point.
2. In the course of his order, the learned Judge says that the election petition in question and another election petition were ported to hear the respective Counsel in view of the decision reported in D. Siddaiah v. S. Rudrappa, AIR 1954 Mys 49 (A), where it has been held that the policy of the Legislature and the rule-making authority in framing the Act and the rules thereunder as well as the entire scheme of election is clearly opposed to allowing questions being raised before the Election Commissioner with regard to the contents of an electoral roll and that, therefore, the Election Commissioner cannot go into the question of the age of the voters.
He also refers to the decision reported in M. S. Avadhani v. State of Mysore, AIR 1954 Mys 18 (B), in which it is observed with reference to the proviso to Section 14 (1) of the Town Municipalities Act and Sub-section (3) of that section that the proviso means that if a person is not qualified for being chosen as a Councillor his seat shall be deemed to be vacant, but that, however, under the proviso his election is not invalid if the disqualification is such as could have been brought to the notice of the Returning Officer at the time of or before the scrutiny of the nomination papers and has not been so brought to his notice. He also refers to the observation in this decision, viz.,
'The objectors would have a chance of putting forward their obj objections (1) before the Returning Officer at the time of or before the scrutiny of nomination papers; (2) They or any ten persons of the town (as provided under Section 20) could take up the matter in appeal to the Election Commissioner and from his decision appeal to this (High) Court. To hold otherwise would give a handle to any person irrespective of any interest he may have in the election to move the Government under Section 14 (3) to nullify a duly held Election which lie could and ought to have challenged before a duly constituted authority like the. Returning Officer and the Election Commissioner and the High Court. This in our opinion would lead to injustice and absurd consequences.' .
The learned Judge then refers to the case reported in Ravanna Subanna v. G. S. Kaggeerappa : AIR1954SC653 , in which observations have been made indicating the difficulty in reconciling the provisions of Section 14 (3) with the provisions of Section 20. On an examination of the abovementioned decisions the learned Judge conies to, the following conclusion;
'The view expressed as obiter dicta in the Supreme Court is that the Government being made the final authority under Sub-section (3) of Section 14, the same matter cannot be agitated before the Election Commissioner under Section 20 of the Act and this is also the view in AIR 1954 Mys 49 (A), and with great respect I feel that this view is to be preferred to the observations in AIR 1954 Mys 18 (B), which is not also referred to in the later Mysore decision AIR 1954 Mys 49 (A), and this also appears to be the plain meaning of Sub-section (3) of Section 14.
I therefore feel that the disqualifications and the disabilities referred to in Section 14 are not matters to be agitated before the Election Commissioner under Section 20 and any question or dispute regarding the disqualification or disability as a consequence of which whether a vacancy has occurred under Section 14 is a matter over which the orders of the Government shall be final.'
He finally says that in this view of the matter the Election Petition is not maintainable.
3. It appears to us that the learned Judge's view that there was any conflict between the views in the cases reported in AIR 1954 Mys 49 (A) and AIR 1954 Mys 18 (B), is without foundation. The question for decision in AIR 1954 Mys 49 (A), as is clear from the reference made to the decision by the learned Judge himself was whether the finality of the electoral roll including the question of the qualifying age of a person to have his name entered in the electoral roll could be agitated before the Election Commissioner.
The question for decision in AIH 1954 Mys 18 (B), was whether Government had jurisdiction to go into the question of the disqualification of a Municipal Councillor when that disqualification existed at the time of election. While one dealt with the question of the capacity for voting the other dealt with the capacity for membership of a Council. These are governed by different provisions of law except to the extent that every candidate has also to be on the voter's list.
In the Supreme Court case referred to by the learned Judge the question of a voter's qualification or disqualification did not come up for consideration at all. It is, therefore, difficult to see either the conflict between the Mysore decisions or the concurrence of views as between the AIR 1954 Mys 49 (A) and the Supreme Court case or how the - learned Judge finds that the observations in the Supreme Court case express the same view as that found in AIR 1.954 Mys 49 (A).
4. The question under consideration, however is not free from difficulty. Section 14 (1) of the Mysore Town Municipalities Act enumerates the disqualifications for a person being chosen as, or being, a member. It also provides that if any person is elected as a Councillor in contravention of those provisions his seat shall be deemed to be vacant. Section 14 (2) provides that any councillor who during the term for which he has been elected or appointed becomes subject to any disqualification specified in Sub-section (1) shall be disabled from continuing to be a councillor and that his office shall become vacant.
It also provides for other contingencies disabling a person from continuing to be a councillor. Subsection (3) of that section states that if any question or dispute arises whether a vacancy has occurred under the section, the orders of the Government shall be final for the purpose of deciding such question or dispute. It will be seen that Sub-section (1) of Section 14 deals with what might be called initial and continuing disqualifications and that Sub-section (2) deals with supervening disqualifications.
If Sub-section (3) applies to disputes on questions arising in regard to disqualifications under both Sub-section (1) and Sub-section (2) then it is the Government that is the authority vested with, the power of deciding any question or dispute, whether it relates to an initial disqualification or a supervening disqualification. Section 20 is the provision dealing with election disputes. Under Sub-section (1) of that section any candidate who stands for election or any ten persons qualified to vote at the election may apply to the Election Commissioner for the determination, of the validity of the election.
Sub-section (2) deals with the powers of the Election Commissioner and the procedure before him and also provides for an appeal to the High Court from the order of the Election Commissioner. Sub-section (3) (a) deals with the manner in which the Election Commissioner should deal with the petition when any corrupt practice is found to have been committed. Sub-section (3) (b) deals with the manner in which a case involving a scrutiny and computation of votes should be dealt with.
Sub-section (4) defines what corrupt practice is Sub-section (5) together with the explanation states in effect that any error, irregularity or informality in carrying out the provisions relating to el objections shall not be a ground for setting aside an election unless Much error, irregularity or informality has materially affected the result of the election or is corruptly caused. It will be noticed that Section 20 (1) is in very general terms and it seems to indicate that the validity of an election can be challenged by means of an election petition on any ground so long as that ground is not based on an immaterial error, irregularity or informality.
The generality of the terms seem to imply that if the notice of candidature of a person under any disqualification is accepted that also can constitute a ground for an election petition. If, however, any question relating to disqualifications can be decided only by Government under Section 14 (3) it might be argued that Section 20 should be read subject to the provisions of Section 14 (3). It is also possible to suggest that both authorities have jurisdiction in such a matter though such a construction should be avoided as far as possible as it will load to conflict and confusion. In the Supreme Court case referred to by the learned Civil Judge this aspect of the matter has been dealt with and it is observed:
'To reconcile the provisions of this section (Section 20), with those of Section 14 of the Act we would have either to put a restricted interpretation upon Sub-section (3) of Section 14 or on Sub-section (3) of Section 20 or else we would have to assume that the remedies provided under the two s objections are cumulative, which would hardly he a reasonable assumption'.
But no final opinion was expressed in regard to the matter as the case was decided on another point. If the language of Section 20 is sufficiently wide to permit an election petition being filed on a ground relating to the disqualification, of a candidate, it has to be seen whether, as mentioned above, Sub-section (3) of Section 14 by necessary implication, takes such a dispute out of the jurisdiction of the Election Commissioner. That sub-section refers to a question or dispute arising where a vacancy has occurred under the section.
It is urged for the Respondent that the wording would have been where a vacancy has occurred under Sub-section (2) of this section if it was intended to vest Government with jurisdiction to decide questions or disputes relating only to supervening disqualifications. It is urged that Section 14 (1) provides that if any person is elected as a Councillor in contravention of the provisions of that sub-section his seat shall be deemed to be vacant.
Since Sub-section (3) deals with questions or disputes relating to vacancies under the section, it is contended that it covers questions or disputes that may arise both under Sub-section (1) and those that may arise under Sub-section (2), i.e., questions or disputes relating to initial disqualifications as well as those relating to supervening disqualifications. It is urged for the Appellant, however, that Sub-section (3) deals with a vacancy that has occurred under the Section and not also with one that is deemed to have occurred. Since it is only under Sub-section (2) that vacancies can occur, it is urged that Sub-section (3) applies only to supervening disqualifications.
5. The language of Section 14 (3) does not place the matter beyond doubt, but it appears to us that the latter construction has greater force. The contingency of Government having to' decide whether a vacancy has occurred on the ground of disqualification can arise only after the concerned person has been elected as a Councillor, since Section 14 (3) deals with vacancies in the membership in consequence of disqualification. If a person's candidature is accepted by the Returning Officer and that person is elected as a Councillor and later on a dispute or question arises as to whether he suffers from any disqualification the question or dispute can come up before Government for decision.
If, however, the Returning Officer rejects his candidature on the ground of disqualification, such person cannot contest the election and there is no possibility of his becoming a Councillor in that ejection with the result that the question or dispute cannot at all be taken before Government for decision. At the same time, if Sub-section (3) of Section 14 should be construed as vesting exclusive jurisdiction in Government on questions relating to disqualifications, whether initial or supervening such a person cannot file an election petition. This would mean that he has no remedy at all.
If, on the other hand, Section 20 is to be interpreted as enabling the Election Commissioner to go into the question of the disqualification of a person whose candidature is rejected by the Returning Officer, it would be anomalous and illogical that the Election Commissioner cannot go into the question of disqualification of a person whose candidature has been accepted by the Returning Officer while he can entertain such a dispute if the candidature is rejected.
The two actions have, if reasonably possible, to be interpreted in such a way as not to lead to anomalous results. It is quite reasonable to bold that the scheme of the Act is to enable the Election Commissioner to decide all disputes relating to an selection including questions of disqualification, while leaving other matters in the hands of other authorities, If, alter election, a member incurs a disqualification, the matter relates to his functioning as a member, and it is appropriate that such a question should be dealt with not by the election Court but by some other authority designated for the purpose, e.g., the Government, in the present context. That is the result that will flow if Sub-section (3) is construed as relating only to actual vacancies and not to vacancies that are deemed to have occurred.
6. In this connection, analogous provisions relating to disqualifications occurring in the Constitution of India may be referred to. Article 191(1) Jays down the disqualifications for a person being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State. Article 190(3)(a) states that if a member of the House of Legislature becomes subject to any of the disqualifications mentioned in Article 191, his seat shall become vacant.
Article 192 provides that if any question as to whether a member of a House of Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 the question shall be referred to the decision of the Governor, who shall act on the opinion of the Election Commission and his decision shall be final. It will be noticed that the above mentioned provisions ore analogous to the provisions of Section 14 (1), Section 14 (2) and Section 14 (3) of the Town Municipalities Act in dealing with the same topic.'
The question whether Article 192 vesting jurisdiction in the Governor (acting on the opinion of the Election Commission) to decide a question of disqualification applied only to supervening disqualifications or also to initial disqualifications came up for consideration, before the Supreme Court in the case reported in Election Commission India v. Venkata Rao : 4SCR1144 . Though the result of the case turned upon another question, the Supreme Court gave expression to its view on this matter also and held, affirming the view of the Madras High Court, that Article 192 applied only to supervening disqualifications.
That Article refers to a question arising as to whether a member had become subject to any of the disqualifications. The wording employed in the corresponding path of Section 14 (3) of the Mysore Town Municipalities Act is: 'If any question or dispute arises whether a vacancy has occurred.' It would not be unreasonable to hold that the 'occurring of a vacancy' indicates a change in the position of a member after he is elected like the words 'has become subject'' in Article 192(1), which is the view expressed by the Supreme Court in the above case. In AIR 1.954 Mys 18 (B) it was held that a dispute relating to an initial disqualification came within the purview of Section 20 of the Act and that Government had no jurisdiction to decide such a dispute under Section 14(3). It may be mentioned that in arriving at that conclusion the Supreme Court case mentioned above has been referred to as affording guidance ia interpreting the analogous provisions in the Town Municipalities Act. It will be remembered that the learned Civil Judge has, without warrant as it appears to us, felt that AIR 1954 Mys, 49 (A) takes a different view on the question.
7. The learned Advocate for the Respondent drew attention to some provisions under the Bombay District Municipal Act and relied on the case reported in Narayan Marutt v. District Judge, Kolaba : AIR1953Bom288 . It was held in that case that Section 15 of the Act conferred jurisdiction solely upon the Collector to decide the question whether a Councillor properly elected is disqualified by reason of Section 15 of the Act.
It was also observed in the case that the District Judge's jurisdiction is confined to dealing with election petitions and that an election petition by its very nature must be restricted to bring before the Court either a malpractice or a corrupt practice or an irregularity that takes place in the course of an election. It should, however, be mentioned that though the provisions in the Act relating to disqualifications, and to election disputes largely resemble those in the Mysore Town Municipalities Act, there is material difference between the respective provisions.
The Bombay Act has been amended from time to time, and as the Act stood at the relevant time, Section 15(1)(B) specifically provided that in every case the authority competent to decide whether a vacancy has occurred under Sub-section 1 (A) shall be the Collector. Sub-section 1 (A), stated that if any person is elected or nominated as a Councillor in contravention of the provisions of Sub-section (1) his seat shall be deemed to be vacant. Sub-section (1) relates to initial disqualifications. In the light of the clear provision in Section 15 (1) (B), it was held that there could be no doubt about the exclusive jurisdiction of the Collector which necessarily implied that the District Judge as the Election Court could have no jurisdiction in the matter.
8. The learned Advocate for the Respondent also draws attention to the other observations in the decision, viz., that the Election Commissioner's jurisdiction is confined to deal with election petitions and that an election petition by its very nature must be restricted to bring before the Court either a malpractice or a corrupt practice or an irregularity that takes place in the course of election. This, it is urged, excludes the stage of presentation of a notice of candidature.
There is nothing in the above mentioned observations to warrant any such exclusion. Nor can it reasonably be contended that the presentation and acceptance of a nomination paper is not an integral part of the process of election. Indeed, various enactments and statutory rules dealing with various types of el objections definitely provide for an improper acceptance or rejection of notice of candidature being made a ground for an election petition, as for example, under the Representation of the People Act.
In this connection, we may refer to the case reported in Tekchand v. Banjari Lal , in which while dealing with the meaning of the word 'election' in relation to the Rajasthan Town Municipalities Act it was observed that the word 'ejection' properly appears and should be understood in its extensive sense, via., that it embraces within itself the entire process of election beginning with the filing of a nomination paper and the several stages and stops subsequent thereto culminating' in the declaration of the results by the Returning Officer.
It may be mentioned that the corresponding provisions of the Rajasthan Act are almost identical with those in the Mysore Act. We do not think that the Bombay case, relied on by the learned Advocate for the Respondent goes very far to support his contention. It is, however, interesting to note that Section 15 of the Bombay Town Municipal Act has now been amended by deleting Sub-section objections 1(A) & 1 (B) by the Bombay Act No. 53 of 1954. A corresponding amendment was carried out in the Bombay Municipal Boroughs Act also.
These amendments appear to have been carried out with the object of transferring the jurisdiction to decide disputes regarding initial disqualifications to the Election Court from the Collector. Section 15 (3) which continues to figure in the Act states that in every case the authority competent to decide whether a vacancy has occurred under that Section shall be the Collector.
If by the d selection of Sub-section objections 1 A and 1 B from that section the jurisdiction to decide disputes in relation to the disqualifications existing at the time of election becomes vested in the Election Court under Section 22 of the Act, it follows that Sub-section 3 which empowers the Collector to decide whether a vacancy has occurred under Section 15 can relate only to supervening disqualifications. The wording used in Sub-section 3 is also, 'whether a vacancy has occurred', i.e., the same as the wording in Section 14 (3) of the Mysore Town Municipalities Act.
It may also be mentioned that before the amendment by deleting Sub-section 1 A and 1 B, Sub-section 1 B provided for an appeal to the Com--missions against the decision of the Collector. Sub-section (3) provides for an appeal to the State Government in the case of City Municipalities and to the Commissioner in other cases. The different provisions for an appeal under Sub-section 1 B and Sub-section 3 would seem to indicate that they referred to different contingencies, viz., to initial disqualifications and supervening disqualifications respectively though Sub-section (3) refers to a vacancy occurring under the section and not specially to vacancies under Sub-section 2, which relates to supervening disqualifications.
It may be added that the ease reported in Dayaram Thadomal Shahahi v. Keshawji Walji, AIR 1933, Sind 416(G), holds that Sub-section (3) of the Bombay District Municipalities Act, 1901 obviously refers to Sub-section 2 and where, the Councillor became disqualified during the term of his office and not to the case where there was a disqualification before election. (9) To sum up, we are of the view, in the light of the above discussion that, though the language employed in Section 14 (3) and in Section 20, can hardly be said to be as clear as it could be, the question of disqualification alleged to be existing at the time of the notice of candidature is properly a matter for adjudication by an election petition under Section 20 of the Town Municipalities Act.
10. We may take this opportunity to observe that the language employed in S objections 14 and 20 of the Town Municipalities Act need revision to clarify the intention behind those provisions. It may in fairness be said that the provisions relating to el objections and to disqualifications to be found in the various enactments relating to Local Bodies in the different States not only, bear a close resemblance in the scheme of the enactments and even in the detailed provisions, as is but natural, but in the lack of clarity in the language employed.
This is possibly due to the fact that all of them are patterned on some early piece of legislation promulgated in one of the provinces. This lack of clarity has been the subject matter of comment in judicial-decisions, for example, in the Rajasthan Case referred to above, i.e. . The Supreme Court has made similar observations in regard to the Mysore Town Municipalities Act in : AIR1954SC653 . The State Legislature has imported greater clarity to the corresponding provisions of the Mysore Village Panchayat and District Boards Act, 1952, by amending S objections 54 and 57 of the Act. It appears to us that the provisions of the Town Municipalities Act also call for similar legislative action.
11. In the view we have taken, we must hold that the election petition is maintainable under Section 20 of the Town Municipalities Act. We accordingly allow this appeal and set aside the order of the learned Civil Judge. He is directed to disclose of the election petition according to law. In the circumstances of the case, there will be no order as to the costs of this appeal.
12. Appeal allowed.