Skip to content


Basantilal Bheruji Parmar Vs. Nirwachan Padadhikari and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Petn. No. 45 of 1957
Judge
Reported inAIR1958MP181
ActsMadhya Bharat Municipalities Act, 1954 - Sections 14(1) and 34; Nirvachan Rules - Rule 126; Constitution of India - Articles 226 and 329
AppellantBasantilal Bheruji Parmar
RespondentNirwachan Padadhikari and ors.
Appellant AdvocateShejwalkar, Adv.
Respondent AdvocateShiv Dayal, Dy. Government Adv.
DispositionPetition allowed
Cases ReferredN. P. Ponnuswarni v. The Returning Officer
Excerpt:
- .....general of municipalities, with which we are concerned.5. in an order dated 20-1-56, the inspector general municipalities held that the petitioner was not qualified to remain a councillor because of his disqualifications under section 14(l) (g) of the madhya-bharat municipalities act. the order is embodied in annexure 'a of the petition and runs as follows:--(the text of the order given in the regional language is omitted.)6. a perusal of section 14 (l)(g) would show that a person is disqualified under section 14 (l)(g) of the madhya bharat municipalities act 'when he is directly or indirectly by himself or his partner, any share or interest any work being done by the order of a municipality or in any contract or employment with or under, or by or on behalf of, a municipality.'7. from.....
Judgment:
ORDER

A.H. Khan, J.

1. This is an application for the issue of a writ in the nature of certiorari. The circumstances in which the writ is sought for are as follows :--

2. The petitioner Basantilal filed his nomination paper as a candidate for the election of Agar Municipality from Wards Nos. 4 and 8. During the scrutiny of the nomination papers, Narayan Das, non-applicant No. 2 took an objection that the petitioner had been previously disqualified under Section 14 (1) (g) of the Madhya Bharat Municipalities Act. A similar objection' was taken by Bhuramal, non-applicant No. 3 The objections against his nomination papers' were disallowed by the Returning Officer, Aggrieved by the order, non-applicants Nos. 2 and 3 filed an appeal under Section 34 of the Nir-wachan Padadhikari, namely, the Collector of Shajapur.

He allowed the appeal and, rejected the nomination papers of the petitioner on the ground that the petitioner had incurred disqualification under Section 14(1) (g) of the Madhya Bharat Municipalities Act, and that under Rule 126 of the Nirvachan Rules that disqualification was not removed by the Government. The present petition is filed against the order of the Collector.

3. There are two questions to be consider ed in this petition: First, what is the nature of a disqualification incurred by the petitioner under Section 14(1) (g) of the M. B. Municipalities Act of 1954? Second, whether it was necessary for the petitioner to obtain a certificate under Rule 126 of the Niryachan Rules.

4. According to Section 14 (3) of the Munich palities Act of 1954, the power to decide whether a vacancy has occurred in a Municipal Council, is invested in two persona. It the Municipality is a City Municipality, then it is the Government which is competent to declare the vacancy. In the case of a Municipality other than the City Municipality, it is the In-spector General of Municipalities who passes such an order. In the present case, the Municipality of Agar is not a City Municipality and it is an order of the Inspector General of Municipalities, with which we are concerned.

5. In an order dated 20-1-56, the Inspector General Municipalities held that the petitioner was not qualified to remain a Councillor because of his disqualifications under Section 14(l) (g) of the Madhya-Bharat Municipalities Act. The order is embodied in Annexure 'A of the petition and runs as follows:--

(The text of the order given in the regional language is omitted.)

6. A perusal of Section 14 (l)(g) would show that a person is disqualified under Section 14 (l)(g) of the Madhya Bharat Municipalities Act 'when he is directly or indirectly by himself or his partner, any share or interest any work being done by the order of a Municipality or in any contract or employment with or under, or by or on behalf of, a Municipality.'

7. From the order of the Inspector General of Municipalities, it appears that the petitioner was removed bacause he had a Kharanja constructed against the estimate and sanction of the Municipality. Without expressing any opinion as to whether such an act falls within the ambit of Section 14(1) (g) of the Act, the fact of the matter is that the Inspector General thought the petitioner had incurred disqualification under Section 14(1)(g) of the Act and declared his seat vacant. It is obvious that a disqualification incurred under Section 14(1) (g) would continue to be in force for a period during which a person may continue to have a pecuniary interest in any work done by the order 'of the Municipality.

This disqualification will not be for all times. In these circumstances it is necessary to know whether at the time of the filing of his nomination papers, the petitioner had any subsisting interest in any work done by the order of the Municipality or not. In para 8(d) of the petition, the petitioner' has denied having any subsisting interest. This fact has not been denied in the return filed by the Collector. What the Collector has said in reply is that before contesting the election the petitioner ought to have produced a 'relieving certificate issued under Rule 126 of the Election Rules by the Inspector General of Municipalities.' The above discussion will show that at the moment the petitioner has no pecuniary interest direct or indirect in any work which is being done by the order of the Municipality and as such at the time of filing his nomination papers, he cannot be said to be disqualified under Section 14(1) (g) of the Madhya Bharat Municipalities Act of 1954.

8. Coming to the second question, as to whether in the circumstances of the case the petitioner ought to have obtained a certificate from the Inspector General of Municipalities under Rule 126 of the Election Rules, I am of the opinion that no such certificate is necessary when the disqualification does not exist. Rule 126 of the Election Rules runs as follows:--(The text given in the regional language is omitted.) This rule when rendered in English means :

'Whenever, in case of City Municipality, the Government or in case of other Municipalities, the Inspector General of Municipalities exempts any person from disqualifications, under Section 14 (1) of the Madhya Bharat Municipalities Act. the Government, or the Inspector General, Municipalities, as the case may be, shall give a certificate to that effect to the person concerned and such certificate shall be a conclusive proof of removal of the disqualification.'

9. This Rule (126) means that in respect of disqualifications given in Section 14 (1) of the Municipal Act, the Government or the Inspector General would grant a certificate of exemption and remove the disqualification. It is obvious that the exemption from disqualification would be granted, when the person is suffering from one of the disqualifications enumerated in Section 14(1) of the Municipal Act. For instance a person may not be ........ Councillor if lie is an undischarged insolvent. See Section 14(1) (c) of the Municipal Act of 1954.

10. Now under Rule 126, the Government or the Inspector General as the case may be can exempt an undischarged insolvent from the disqualification and he can become a Councillor despite his continued insolvency. But if such a person is a discharged insolvent, then no question of the grant of exemption arises. To take another instance, a person who is less than 21 years of age is not competent to be a Municipal Councillor according to Section 14(1) (e) and if he has been elected, the Inspector General can declare his seat vacant under Section 14 (3). Would Rule 126 apply if the person has become major? The answer is an emphatic no.

The exemption referred to in Rule 126, can be granted only if the disqualification continues. Every case shall have to be considered on its merits. In the instant case if the petitioner still had any existing interest in any work done by the order of the Municipality, the Inspector General can exempt him under Rule 126, despite his interest. But when his interest has ceased to exist, as in this case (his allegation in the petition stands unrefuted) there is no question of the grant of a certificate of exemption by the Inspector General of Municipalities under Rule 126 and the rejection of his nomination paper on that ground is not justified.

11. An objection is raised by learned Deputy Government Advocate that I should not interfere at this stage and that I should let the petitioner file an election petition. It is contended that the election is a whole process starting from the filing of the nomination paper and continuing till the publication of the result in the official Gazette. It is true that the term. 'election' embraces the whole process and generally speaking the law of election does not contemplate two attacks on election proceedings, but in the case of Municipal elections, it seems that the Madhya Bharat Legislature has broken that process, by providing an interim appeal against the rejection of nomination paper.

In this respect elections under the Representation of the People Act differ from the elections conducted under the Madhya Bhara't Municipal Act of 1954, and the observations of their Lordships of the Supreme Court in, N. P. Ponnuswarni v. The Returning Officer, Namakkal Constituency, AIR 1952 SC 64 (A), do not apply with full force.

12. For reasons stated above the petition is allowed and the order of the Collector dated 26-10-57 is quashed. The election that has been held up because of this petition may now be conducted according to law.

13. Parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //