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V. Narayanachari Vs. the Commissioner and the Returning Officer, Corporation of the City of Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 4815 of 1970
Judge
Reported inAIR1971Kant186; AIR1971Mys186; (1971)1MysLJ225
ActsCity of Bangalore Municipal Corporation Act, 1949 - Sections 56(2); City of Bangalore Municipal Corporation Rules, 1964 - Rule 14(2)
AppellantV. Narayanachari
RespondentThe Commissioner and the Returning Officer, Corporation of the City of Bangalore and ors.
Appellant AdvocateS.K. Venkataranga Iyengar, Adv.;Adv. General
Respondent AdvocateS.V. Subramanyam, ;A.C. Nanjappa and ;S.M. Hegde, Advs.
DispositionPetition dismissed
Excerpt:
- industrial disputes act, 1947 [c.a. no. 14/1947]. section 11-a: [subhas b. adi, j] proportionality of punishment bank clerk dismissed from services for abusing customer and trying to assault him outside bank - incident of using abusive language fully proved held, punishment of compulsory retirement is harsh and shockingly disproportionate to the gravity of misconduct. reduction of punishment to withholding three annual increments without any backwages and also without continuity of service, is sufficient. - 9. now the basic principles governing the examination of an attack against any statutory provision on the ground that it violates article 14 are now so well established by the rulings of the supreme court, that it is unnecessary to refer to many cases. 20. hence the class.....narayana pai, c.j.1. the petitioner was one of the candidates for election to the city of bangalore municipal corporation from the 43rd division. he presented his nomination paper on the 21st of november, 1970, according to the calendar of events relating to the election, the last date for presentation of nomination papers was the 23rd november, 1970 and the date fixed for scrutiny of the nomination papers was the 25th of november. 1970. at the scrutiny m. obanna raju, another candidate for election from the same division (impleaded as the 8th respondent in this writ petition,) raised an objection to the reception of the nomination paper of the petitioner on the ground that the petitioner had not paid the property tax payable to the corporation by him in respect of his property in.....
Judgment:

Narayana Pai, C.J.

1. The petitioner was one of the candidates for election to the City of Bangalore Municipal Corporation from the 43rd Division. He presented his nomination paper on the 21st of November, 1970, According to the calendar of events relating to the election, the last date for presentation of nomination papers was the 23rd November, 1970 and the date fixed for scrutiny of the nomination papers was the 25th of November. 1970. At the scrutiny M. Obanna Raju, another candidate for election from the same Division (Impleaded as the 8th respondent in this Writ petition,) raised an objection to the reception of the nomination paper of the petitioner on the ground that the petitioner had not paid the property tax payable to the Corporation by him in respect of his property in Division No. 43. The petitioner produced a receipt for payment of taxes made by him at 3.30 P. M. on the same day, viz., the 25th of November, 1970. According to the receipt, payment made was of taxes for the years 1968-69, 1969-70 and 1970-71. Thereupon, the Returning Officer (the first respondent) rejected the nomination paper recording his decision in that regard as follows:

'It is clear from the receipt produced by Sri Narayanachari that he has paid on 25-11-1970 and so there were arrears to Corporation on the day he filed nomination on 23-11-1970. Hence objection is upheld and nomination of Sri Narayanchari is rejected.'

2. In this Writ Petition filed on the 27th of November, 1970, the petitioner prays for the issue of a writ of mandamus directing the first respondent the Returning Officer, to accept the petitioner's nomination.

3. The ground stated in support of the prayer are firstly that Section 56 (2) (ee) of the City of Bangalore Municipal Corporation Act, 1949, is invalid or unconstitutional as being violative of Article 14 of the Constitution and secondly that the order of the Returning Officer rejecting the nomination paper is so patently illegal that the error should be corrected immediately under Art. 226 of the Constitution to prevent unnecessary waste of public time and money.

4. As polling is scheduled to be held on the 20th of this month according to the calendar of events, we directed emergent notices to the respondents returnable within eight days. As the validity of one of the Sections of an Act of the legislature is also questioned, we directed notice to the Advocate General. Full arguments were heard on the 10th and 11th of this month.

5. From what is stated above regarding the basic facts and the nature of the controversy, it is clear that the facts themselves are not in dispute and that the main points of law for consideration are only two, viz., (1) is Section 56 (2) (ee) of the City of Bangalore Municipal Corporation Act invalid as being violative of Article 14 of the Constitution, and (2) is the decision of the Returning Officer so patently illegal as to call for immediate correction under Article 226 of the Constitution.

6. Section 56 deals with the disqualification of candidates and the immediately preceding section deals with qualification of candidates. So far as section 55 is concerned, what is relevant for the present purpose is that the basic qualification for election as a Councillor is that the candidate's name is included in the Electoral Roll. The said Roll is the Electoral Roll of the Mysore Legislative Assembly (prepared under the provisions of the Representation of the People Act, 1950) for the time being in force for such part of the constituency of the Assembly as is included in any of the Divisions of the Corporation. It follows, therefore, that the right to vote is the one based on adult suffrage.

7. We are not directly concerned with Sub-section (1) of Section 56. Sub-section (2) which is the subject of discussion in this case reads as follows:

'(2) A person shall be disqualified for election or appointment as a Councillor if such person is at the date of nomination, election or appointment

(a) of unsound mind, a deaf-mute or a leper.

(b) an applicant to be adjudicated an insolvent or an undischarged insolvent:

(c) directly or indirectly by himself or his partner, interested in a subsisting contract made with, or any work being done for the Corporation; Provided that a person shall not be deemed to have any interest in such contract or work by reason only of his having a share or interest in--

(i) any lease, sale or purchase of immovable property or any agreement for the same;

(ii) any agreement for the loan of money or any security for the payment of money only;

(iii) any newspaper in which any advertisement relating to the affairs of the corporation is inserted;

(iv) any company or association, whether incorporated or not, which contracts with the corporation for lighting or supplying with water any part of the city or insuring against fire any property of the Corporation.

(v) any company; or

(vi) the sale of the corporation of any articles in which he regularly trades or the purchase from the corporation of any articles:

(d) employed as paid legal practitioner on behalf of the corporation or as legal practitioner against the corporation;

(e) an officer or servant holding office under this Act or an Honorary Magistrate or a Public Prosecutor or Government Pleader; or

(ee) in arrears of any kind due by him to the Corporation, otherwise than as an agent, receiver, trustee or an executor; or

(f) already either a councillor whose term of office as such will not expire before his fresh election or appointment can take effect or has already been elected a councillor whose term of office has not yet commenced.'

8. It is Clause (ee) of this Sub-section (2) which is said to involve an infringement or violation of Article 14 of the Constitution.

9. Now the basic principles governing the examination of an attack against any statutory provision on the ground that it violates Article 14 are now so well established by the rulings of the Supreme Court, that it is unnecessary to refer to many cases. The approach for examination of such a case is two-fold: the first is on what is commonly referred to as the reasonableness of the classification and the other is that of inherent arbitrariness in the provision.

10. On the first approach the general propositions are--

(1) While Article 14 condemns discrimination whether by substantive law or by the law of procedure and therefore forbids class legislation, it does not forbid classification; and

(2) permissible classification must satisfy two conditions namely.--

(a) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and

(b) the differentia must have a rational relation to the object sought to be achieved by the statute in question.

11. In the matter now before us, all persons whose names are included in the Electoral Roll of the Corporation are qualified as candidates for election to the council of the Corporation. When the law provides as in Section 56 of the Act that certain persons shall be disqualified for election though their names may appear in the electoral roll, what the law does is to pick out or classify certain persons affected by the disqualifications as specified or place them in a class themselves. The criterion for classification is undoubtedly the disqualification specified in the section. Hence for the first approach the two questions for consideration would be whether the disqualification is intelligible and sufficiently clear to place persons in one class distinct and different from those kept out of it, and whether the disqualification bears a reasonable relationship to the object of the statute. The second question also involves an investigation into the object of the law.

12. According to Clause (ee) of Sub-section (2) of Section 56, a person shall be disqualified for election or appointment, as a councillor if such person is at the date of nomination, election or appointment, in arrears of any kind due by him to the Corporation, otherwise than, as an agent, receiver, trustee or an executor. The first question therefore is is this not intelligible or sufficiently clear to classify persons?

13. The use of the words 'arrears' and 'due' has been strongly commented upon by Mr. Venkataranga Iyengar for the petitioner, both from the point of view of the intelligible nature of the criterion and also from the point of view of the alleged arbitrariness inherent in the statutory provision. For the present it will be convenient to deal with the first aspect only.

14. It has been argued that the first difficulty is created by describing 'arrears' as 'of any kind' and that the second difficulty arises by the simultaneous use of the words 'arrears' and 'due'. Arrears, it is said are amounts not only due but overdue, that is to say, that there must first be a liability or duty to pay a certain sum of money, that secondly the time for payment must have arrived and that thirdly there must be a default or omission to pay even after the expiry of the time fixed for payment. The word 'due' on the other hand, it is pointed out, only indicates or involves the first two ideas of a duty or liability to pay and the arrival of the time fixed for payment.

15. It appears to us that it is not correct to suggest that there is such connection as aforesaid between the words 'arrears' and 'due' in the section The correct way to look at the matter is that the expression qualifying the word 'arrears' is 'of any kind', and that the word 'due' is connected with what follows, viz., 'by him to the Corporation'. The two things must therefore be understood as two different expressions but so related to each other as to specify a class.

16. It is correct to say the word 'arrears' involves the two concepts of a duty and a default. It means that the duty to pay a certain sum of money having arisen, the person bound by that duty has defaulted in its performance. The Oxford Dictionary states that in archaic usage the word 'arrear' meant hinder part especially of procession and that in plural 'arrears' the word means outstanding debts and that the expression 'in arrears' means behind hand in payment.

17. There is thus no difficulty in understanding the expression 'arrears' or 'in arrears'.

18. It cannot also be said that any confusion is introduced by describing the arrears to be 'of any kind'. As pointed out by the Supreme Court in the case of Chief Inspector of Mines v. Karam Chand Thapar, : (1961)IILLJ146SC , the expression 'any one' or 'any kind' means in several contexts 'every one' or 'every kind'. This is what their Lordships have said in para. 30 of their judgment, at p. 847:--

'If one examines the use of the words 'any one' in common conversation or literature, there can be no doubt that they are not infrequently used to mean 'every one' -- not one but all. Thus we say 'any one can see that this is wrong'. 'Any one may enter' does not mean that 'only one person may enter but that all may enter. It is permissible and indeed profitable to turn in this connection to the Oxford English Dictionary, at page 378 of which, we find the meaning of 'any' given thus: 'In affirmative sentences, it asserts, concerning a being or thing of the sort named, without limitation as to which, and thus collectively of every one of them'. One of the illustration given is -- 'I challenge any one to contradict my assertions'. Certainly, this does not mean that one only is challenged. It is abundantly clear therefore that 'any one' is not infrequently used to mean 'every one'.

In the present context therefore 'arrears of any kind' means arrears of every kind, that is to say amounts which a person is liable to pay or under a duty to pay but has defaulted in payment thereof even after the time therefor had arrived and expired, whatever may be the source of the liability or duty.

19. The further description thereof as 'due by him to the Corporation' indicates that arrears of whatever kind they may be which operate as a disqualification under Section 56 (2) (eel are those due to the Corporation and not due to anybody else.

20. Hence the class clearly selected by the disqualification is a class of debtors to the Corporation, i. e., debtors who for some reason owe some money to the Corporation but have failed to pay it even after the said money has become payable.

21. It was suggested in the course of the argument that the class in question discriminates against the propertied classes only, that is to say, persons who own property within the Corporation limits liable to pay property tax. We do not think that such a suggestion is acceptable. The liability to pay tax in respect of properties is one of the liabilities owing to the Corporation. Even among taxes there may be taxes unconnected with the property, like for-example, profession tax, where it is imposed by Municipalities. The liability may also arise in respect of a contract either by way of lease of property belonging to the Corporation or in connection with some work undertaken to be done for the Corporation or in respect of purchases or sales or other contracts between the parties and the Corporation. Whatever may be the basis or source of the liability the essence of the matter is that the liability has taken the shape of a certain sum of money payable to the Corporation.

22. We therefore hold that the class selected by this criterion of disqualification is a class of debtors of the Corporation and what brings them within the class is the default on their part in making payment of the amounts due by them to the Corporation, although the time for payment has arrived and gone by.

23. It was also argued that so far as debtors are concerned there is already a class of debtors placed under disqualification under Clause (b), viz. debtors who have applied to get themselves adjudicated as insolvents or debtors who are undischarged insolvents. But the mere fact that there is such a class does not mean that another restricted class of debtors should not also be placed under disqualification. It will be seen that the debtors included in Clause (b) need not necessarily be debtors of the Corporation. So long as the criterion is intelligible, there is no difficulty in identifying the class.

24. It was next argued that in no case can a person be said to be in default unless a bill or a demand or a notice is issued to him or served upon him. Reference was made to the provisions of Section 16 (1) (h) of the Maharashtra Municipalities Act, considered and discussed in the case of Kasturchand v. District Judge, Nagpur, : AIR1968Bom381 , in which the disqualified person is described as one in arrears of any sum due by him to the Council after the presentation of a bill to him under Section 150 of the said Act. Reference was also made to the corresponding provision in the Municipal Act of Orissa where the disqualification operates only against a person who is in default for a period of one year. But the fact that such specific provisions are made in other Acts is not by itself sufficient to hold that the liability to pay does not arise or cannot arise unless a notice or a bill or a demand is served. The question whether a certain sum of money is due or has become due depends upon the provisions of the relevant statute or the terms of the relevant document under or by virtue of which the liability to pay arises. Mr. Venkataranga Iyengar, of course, concedes that the existence of any difference between the corresponding provisions of the statutes of two different States does not afford any ground for an attack of violation of Article 14 by any one or other of such statutes.

25. It may be pointed out that Section 57 of the Mysore Act dealing with disqualification of councillors, that is disqualification of persons after they have been elected, provides in Clause (hh) of Sub-section (1) thereof, that a councillor shall cease to hold office as such if he fails to pay any arrears of any kind due by him to the Corporation within three months after a notice in this behalf has been served upon him. It is clear therefore that the statute makes a difference between the arrears of indebtedness to the Corporation operating as disqualification before the election and after the election. When the Statute has deliberately chosen to make this difference, it is not open, in our opinion, to read into Clause (ee) of Sub-section (2) of Section 56 the additional condition of issue of a notice before an existing arrear can operate as a disqualification. If however, according to the relevant provision of the statute or contract, a sum of money does not become due unless a notice or a bill or a demand is issued then, of course, no question arises of the same being treated as being in arrears.

26. On the first aspect of the matter therefore we hold that the criterion for differentiation or classification set out in Clause (ee) of Sub-section (2) of Section 56 of the Act is perfectly intelligible and sufficient to distinguish the class of persons disqualified for election from others.

27. The next question for consideration is the reasonableness or otherwise of the relation between the criterion and the object of the statute.

28. Now, the topic for consideration is election to the Council of the Corporation. According to the statute, the body of councillors is called the Corporation. The Corporation, according to Section 5 of the Act, shall consist of councillors in such number as may be determined by the Government under Section 48. Under Section 23, the entire municipal Government of the City vests in the Corporation. The Corporation assigns various items of administrative work involving the exercise of responsibility and taking of decisions to various standing committees thereof, to which a certain number of councillors is elected or appointed. Under Section 25, any Councillor may draw attention of the proper authority to any matter requiring attention in the course of municipal administration, and every councillor is given the right to interpolate on matters connected with municipal administration and of access to records of the Corporation subject, of course, to such regulations as may be framed in that behalf. It will be seen therefore that the position of councillors is one of responsibility, and that being public office to which rights and duties are attached by law in public interest, there can be no doubt that the public are entitled to expect the councillors to maintain a high standard of conduct and to act impartially, honestly and with a sense of responsibility in such a way as to serve, and not cause prejudice to public interest.

29. Dealing with the question similar to the one raised in this case in relation to a disqualification under the Orissa Municipal Act of paid legal practitioners on behalf of the Municipality or legal practitioners against the Municipality (similar to the disqualification under Clause (d) of Sub-section (2) of Section 56 of the Mysore Act), the Supreme Court has discussed the legal position in the case of Sakhawant Ali v. State of Orissa, : [1955]1SCR1004 . The principles are stated as follows in para. 9 of the judgment at p. 170 of the Report:

'The contention that the disqualification prescribed in Section 16 (1) (ix) violates the fundamental rights of the Appellant under Article 14 and Article 19(1)(g) is equally untenable. Article 14 forbids class legislation but does not forbid reasonable classification for the purposes of legislation. That classification however cannot be arbitrary but must rest on some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. In other words the classification must have reasonable relation to the object or the purpose sought to be achieved by the impugned legislation.

The classification here is of the legal practitioners who are employed on payment on behalf of the Municipality or act on behalf of the Municipality and those legal practitioners are disqualified from standing as candidates for election. 'The object or purpose to be achieved is the purity of public life, which object would certainly be thwarted if there arose a situation where there was a conflict between interest and duty. The possibility of such a conflict can be easily visualised, because if a municipal councillor is employed as a paid legal practitioner on behalf of the Municipality there is a likelihood of his misusing his position for the purposes of obtaining municipal briefs for himself and persuading the municipality to sanction unresonable fees.

Similarly, if he was acting as a legal practitioner against the Municipality he might in the interests of his client misuse any knowledge which he might have obtained as a councillor through his access to the municipal records or he might sacrifice the interests of the Municipality for those of his clients. No doubt having regard to the best traditions of profession very few legal practitioners would stoop to such tactics, but the legislature in its wisdom thought it desirable to eliminate any possibility of a conflict between interest and duty and aimed at achieving this object or purpose by prescribing the requisite disqualification. The classification thus would certainly have a reasonable relation to the object or purpose sought to be achieved.'

30. In Thellakula Jalayya v. Namana Venkateshwara Rao, AIR 1957 Andh Pra 658, a Bench of the Andhra Pradesh High Court, presided over by Subba Rao, C. J., dealing directly with the disqualification arising out of arrears of any kind due by the candidate to the Municipality, stated the underlying principle in the following terms:--

'We believe that the disqualification is based upon the salutary principle that a member of the Municipal Council shall not be under an obligation pecuniary or otherwise to the Municipality for in that contingency he cannot be expected to discharge his functions uninfluenced by any other considerations.'

31. Mr. Venkataranga Iyengar has argued that a conflict of interest and duty such as may be postulated in the case of legal practitioners as indicated by the Supreme Court in the case cited above, cannot reasonably be postulated in the case of a person said to be disqualified on account of arrears due by him to the Corporation. He has further contended that so far as the category of debtors are concerned, the policy of the statute is to exclude only those that have applied for adjudication or are an undischarged insolvents.

32. As to the second argument, we have already indicated that the policy implicit in the said provision does not necessarily mean that insolvency of such a character is invariably necessary and should be prescribed even in the case of debtors of the Corporation. There is a clear distinction, in our opinion, between debts owing to others and debts owing to the Corporation of which a person wishes to be a councillor.

33. It is not possible to contend that a conflict of interest and duty can never arise or can never be said to arise in the case of a person who is in arrears in respect of a debt owing to the Corporation. It will be seen that the position of a councillor is one of importance in the Corporation. If it can be said in the case of legal practitioners, as the Supreme Court has done, that there is a possibility of their misusing their position including the abuse of the right of access to municipal records given to them by the statute, we do not see any reason why the possibility of a similar abuse of the same power by a debtor of the Corporation, if elected as a councillor, cannot or does not arise. Apart from his right of access to records, his position is undoubtedly one in which he could wield some influence over the officers or employees of the Corporation and it is not beyond the bounds of possibility that he might delay, if not defeat or prevent, the collection of arrears due from him or the smooth progress of the steps or proceedings if any taken for their recovery. Section 57 (1) (hh) further indicates that it is a condition for continuing to hold the office of a councillor that he should duly discharge all his liabilities to the Corporation and that any failure on his part in that regard will bring about the cessation of his office.

34. There can be no doubt therefore that the clear object of the statute of maintaining purity of public life is likely to be, if not would certainly be, thwarted if a person in arrears of any kind due by him to the Corporation is permitted to be elected as a councillor.

35. Mr. S. K. Venkataranga Iyengar has cited a decision of this Court reported in Bajaj Basappa v. Keshava, AIR 1968 Mys 198 in which it has been held that the provision disqualifying a person from voting because he is a leper is invalid because it bears no reasonable relation to the object of conferring the right to vote. We are not directly concerned with the disqualification based on the ground of leprosy. It could also be suggested that considerations bearing upon the right to be elected as a councillor may not be the same as those bearing upon a mere right to vote.

36. For the reasons already stated, we are clearly of the opinion that the criterion for disqualification in this case, namely, a person being in arrears of any kind due to the Corporation, is a perfectly intelligible criterion and has a demonstrably reasonable relation with the object of the statute in regard to election to the Corporation, viz., the maintenance of purity of public life.

37. The second approach to the question of alleged violation of Article 14 is that of arbitrariness inherent in the statutory provision itself.

38. Part of the argument relating to this is the alleged vagueness in the expression 'arrears of any kind due to the Corporation'. This aspect of the matter we have already dealt with and pointed out that the expression is perfectly understandable and that the mere fact that the question whether arrears exist or not will require investigation in every case is not in itself sufficient to hold that the provisions of the statute are to any extent vague or ununderstandable.

39. To make out the case of arbitrariness, Mr. Venkataranga Iyengar has been at pains to show that the general expression of the provisions in the statute vests a certain discretion in the Returning Officer. We have found it a little difficult to appreciate how and in what respect the clause in question confers what may rightly be regarded as discretion. At our request Mr. Venkataranga Iyengar formulated his proposition as follows:--

'To say whether the case comes within the ambit of the expression 'arrears of any kind due to the Corporation' involves an element of administrative discretion, firstly in saving that a given case is an arrear of some kind or some particular kind, and secondly in saying that in the said kind of arrears there is some amount due.'

40. It will be noticed that the latter part of the proposition is related to the alleged confusion caused by the use of the words 'arrears' and 'due' in the same clause. We have already pointed out how the clause should properly be read and how, if so read, there is no confusion. Hence the only determination is whether there is any amount in arrears whatever may be the source of the liability.

41. To say that the determination of the question whether there are arrears, that is to say, any amounts remaining in arrear, involves a discretion can be correct only if we use the word discretion to mean a correct judicial understanding of the position. If so, the more proper or more accurate way of describing the process would be, not an exercise of discretion likely to lead to arbitrariness in the absence of clear guidance, but as one of coming to a conclusion after adjudication on a consideration of relevant material.

42. The question of arbitrariness involving a violation of Article 14 arises not in cases of conferment of a quasi judicial power of adjudication and decision but in cases of conferment of pure discretion without guidance as to the manner of its exercise. Discretion in this sense means liberty to decide as one thinks fit either absolutely or within certain limits. It is a liberty of choosing between two decisions in the same set of facts upon a subjective opinion. Where however decision has to be taken only on an objective consideration of relevant material, there is no choice whatever left to the deciding authority because it is bound on the facts found to come to a decision which is in accordance with law. In other words, it must apply the law to the facts found and give effect to them in the manner the law requires it to do.

43. Here, in the present case, the mandate of the law is that if a candidate is in arrears of any kind due by him to the Corporation, he must be disqualified for election and prevented from standing for election. The question whether he is in arrears is a question to which an answer must be found upon facts and material placed before the Returning Officer. If those facts or the material show that the person is in arrears within the meaning of the clause, then there is no option left to the Returning Officer but to disqualify the person. Whether the facts or the material placed before him are sufficient to hold that the candidate is in arrears, is a question not of discretion but of coming to a finding of fact. As already pointed out by us, it must first be proved that the candidate in question owes a certain sum of money to the Corporation for a certain reason, secondly that the time for paying the same to the Corporation has arrived and thirdly that he has defaulted in payment thereof. Each one of these questions is capable of being answered on an objective consideration of a material or facts placed before the Returning Officer and on the application of the relevant provisions of either the statute or the contract or document which is the source of the liability. At every stage the power and duty of the Returning Officer is to record a finding either on facts or on law and at no stage has he the choice of coming to a decision other than the one which is based on facts and in accordance with law applicable to the facts.

44. We do not agree, therefore, that Clause (ee) of Sub-section (2) of Section 56 confers or involves any administrative discretion but hold that it confers a quasi judicial power of adjudication upon material placed before the Returning Officer. As the power is one of decision and the exercise of that power necessarily imposes the duty of examining the material and the relative provisions of law it is wrong to suggest that there is no guidance whatever in the statute for the exercise of the said power.

45. The argument of arbitrariness therefore fails.

46. Hence from both the approaches relevant for the consideration of the case of alleged violation of Article 14, it has to be held, and we hold, that Clause (ce) of Sub-section (2) of Section 56 does not violate nor does it involve any violation of Article 14 of the Constitution,

47. Coming now to the second contention of patent illegality in the decision of the Returning Officer rejecting the petitioner's nomination paper, the argument turns upon the language of Rule 14 (2) of the City of Bangalore Municipal Corporation (Election of Councillors) Rules, 1964. The relevant part of the said sub-rule reads as follows:--

'The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds; (a) That on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under Section 55 or 50.'

48. Now it will be remembered that Section 56 (2) disqualifies a candidate if the disqualifications enumerated therein exist on the date of nomination, election or appointment. Rule 14 (2) extracted above, calls upon the Returning Officer to reject the nomination if on the date fixed for the scrutiny of nominations a person Dominated is disqualified under Section 56. the specification of these two different dates in the section and the rule has provided the foundation for the argument.

49. The first question is whether there is a conflict between the two and, if so, how the same should be or may be reconciled.

50. Before doing so, we should refer to Section 69-A which while enumerating the grounds on which an election can be declared to be void, mentions the following ground, viz.,

'that on the date of his election the returned candidate was not qualified or disqualified to be chosen as a councillor under this Act.'

51. the word 'election' can mean different things in different contexts. It may refer in certain contexts only to polling and in certain others to the entire process of election commencing with the presentation of nomination paper, or earlier if any law so requires and concluding with the declaration of the result of poll. In Section 53 laying down the qualifications of a candidate for election, the said word must necessarily be taken as referring to the entire process of election. But in Section 56 (2) election may rightly bo regarded as having the limited reference to polling because the word 'nomination' is also used and because the reference is to the dates. Likewise, in Section 69-A the date of election means the date of poll because the existence of a disqualification at an earlier stage, viz., nomination, has already been dealt with in Section 56 (2). Both from this circumstance as well as from the circumstance that in Section 56 (2) two dates are referred to, date of nomination and the date of election, it follows that if the disqualification exists either on the date of nomination or on the date of poll, the candidate in question cannot get elected. When therefore the sections of the statute themselves require that the candidate should not be disqualified or that the disqualification should not exist on both these dates, one way of reconciling the sections with Rule 14 would be to read the rule as making the further provision that on the date of scrutiny also, the disqualification should not exist.

52. Understood that way, the sections and the rule together provide that if the disqualification exist on any one of the three dates, the candidate is not entitled to be elected.

53. Mr, Venkataranga Iyengar hag suggested another way of reconciling Section 56 (2) and Rule 14 (2). The argument is that because the word 'nomination' is not defined and because Rule 14 (2) refers to existence of disqualification on the date of scrutiny, we must take it that nomination in Section 56 (2) means valid nomination, i.e., a nomination which is accepted as valid after scrutiny. We do not think that it is necessary to make this assumption. 'Nomination' in the ordinary sense means naming a person. Nomination in connection with an election undoubtedly means the naming of a person as a candidate for election. Such naming of a person as candidate for election is complete only when a nomination paper completed in the manner prescribed by the relevant rule is filed with the Returning Officer. Hence even without a definition the natural sense of the word undoubtedly points to the fact that the date of nomination means the date on which the nomination paper is filed with the Returning Officer.

54. Now on the facts of this case it is clear that upto 3-30 P. M. on the 25th of November, 1970, the petitioner had not paid the property tax in respect of his properly payable for the years 1963-69, 1969-70 find 1970-71. Under Section 104 of the City of Bangalore Municipal Corporation Act, property tax shall be paid by the person primarily liable (owner of the promises is one of the persons so liable) within 30 days after the commencement of every half year; by an amendment under Act XIII of 1970 which came into force on the 8th of June 1970, sixty days are substituted for thirty days. There can be no doubt therefore that property tax payable by the petitioner for 1968-69, 1969-70 and for the first half year of 1970-71 was in arrears on the date he presented his nomination paper, viz., 21-11-1970.

55. Even if the position is to be examined as on the date of scrutiny of the nomination papers, that is, 25-11-1970, the disqualification must be held to have been existing on the said date also on the principle stated by the Supreme Court in Pashupati Nath Singh v. Harihar Prasad Singh, : [1968]2SCR812 . Dealing with the qualification of taking an oath of allegiance under Clause (a) of Article 173 of the Constitution, which candidates for election to Parliament and State Legislatures are required to take, their Lordships state:--

'It seems to us that the expression 'on the date fixed for scrutiny' in Section 30 (2) (a) means 'on the whole of the day on which the scrutiny of nomination has to take place'. In other words, the qualification must exist from the earliest moment of the day of scrutiny.'

The language of Rule 14 (2) with which we are now concerned is the same as the language of Section 36 (2) (a) of the Representation of the People Act considered by their Lordships of the Supreme Court. Applying the same principle, it means that the disqualification should not exist even on the earliest moment of the day fixed for scrutiny, viz., 25-11-1970. As the payment was made only at 3-30 P. M. on that day, it has to be held that the disqualification existed on the earlier part of that day and that therefore it existed on the date fixed for scrutiny within the meaning of the rule.

56. The rejection of the petitioner's nomination paper by the Returning Officer cannot, therefore, be said to be erroneous.

57. The writ petition fails and is dismissed.

58. The stay of election ordered onthe 30th of November, 1970 on admittingthe writ petition, will now stand dissolvedand election will proceed according to theSchedule.


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