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Narmadashanker Makanji Raval Vs. Niranjan Ambalal Thakore and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR843
AppellantNarmadashanker Makanji Raval
RespondentNiranjan Ambalal Thakore and ors.
Cases ReferredGulam Yasin Khan v. Sahebrao Yeshwantrao Wahskar and Anr.
Excerpt:
.....amount of loss or damage that may be occasioned to the corporation out of the default of the said municipal employee. the concerned respondents had used that even though the said agreement was fur security and they could be said to have any interest or share in the said agreement, it being an agreement or security for the payment of money only, exception was well attracted and disqualification mentioned in clause (f) of sub-section (1) of section 10 of the act was inoperative. 3. as said above, application of clause (f) to the bond executed by the concerned respondents, was not seriously challenged and for good reasons. the second phase of this hinder part of the agreement then proceeds to say that if the concerned employee committed default in discharge of his duties and thereby caused..........baroda, that was pleased to set aside election of the appellants herein. the dispute concerns the municipal elections for electing the councillors for baroda municipal corporation for wards nos. iii and v. the nomination papers of one of the respondents in each of the two election petitions in these wards had come to be rejected by the returning officer on the ground that they had indirect interest in the contract of employment or employment with the corporation in so far as those candidates had executed surety bonds in respect of the contract of service by some employees of the corporation. it is no longer in dispute before us that those prospective candidates whose nomination papers had come to be rejected by the returning officer, had stood sureties for one or the other of the.....
Judgment:

N.H. Bhatt, J.

1. These three Letters Patent Appeals arise respectively out of the judgment of the learned Single Judge in Special Civil Applications Nos. 2166 of 1976,9 of 1977 and 134 of 1977, all of which were dismissed by the learned Single Judge, confirming the order of the Election Tribunal i.e. the Civil Judge, Senior Division, Baroda, that was pleased to set aside election of the appellants herein. The dispute concerns the municipal elections for electing the councillors for Baroda Municipal Corporation for Wards Nos. III and V. The nomination papers of one of the respondents in each of the two election petitions in these Wards had come to be rejected by the Returning Officer on the ground that they had indirect interest in the contract of employment or employment with the Corporation in so far as those candidates had executed surety bonds in respect of the contract of service by some employees of the Corporation. It is no longer in dispute before us that those prospective candidates whose nomination papers had come to be rejected by the Returning Officer, had stood sureties for one or the other of the Municipal employees and the said surety bonds were in operation and in vogue at the time the nomination papers bad come to be filed by those respective candidates. After the nomination papers were thrown out, the election had taken place and the appellants in these Letters Patent Appeals along with some others had come to be declared duly elected. Two Election Petitions had come to be filed. The Election Petition No. 480 of 1975 had come to be filed in respect of election in Ward No. III and Petition No. 481 of 1975 had come to be filed in respect of the election of Ward No. V. Both had come to be filed by the candidates, whose nomination papers had come to be rejected by the Returning Officer. After the rejection of the nomination papers of those respondents, the election had taken place on 23rd November 1975 and results had come to be announced on 25th November 1975. The present appellants had come to be declared duly elected. Thereafter the candidates whose nomination papers had come to be rejected by the Returning Officer had filed two petitions Nos. 480 of 1975 and 481 of 1975 challenging the decisions of the Returning Officer. Their contentious were upheld by the Tribunal and the elections were set aside and fresh elections were there-fore, imminent. The successful candidates had, therefore preferred Special Civil Applications Nos. 2166 of 1976, 9 of 1977 and 134 of 1977. The learned Single Judge concurred with the conclusions reached by the Election Tribunal and dismissed those Special Civil Applications. Hence the Letters Patent Appeals.

2. In both these cases in respect of the election to Wards Nos. III and V, the bonds executed by the respective candidates are almost identical and we propose to reproduce the same with as faithful a translation-as possible as follows:

I...by this document, become the surety for the above-mentioned employee...to the effect that he would discharge all the duties and assignments with efficiency as undertaken by him and if he commits default therein, I bind myself to pay to the Corporation the sum of Rs. 100/- or to make good any amount of loss or damage that may be occasioned to the Corporation out of the default of the said municipal employee. I bind myself to pay the said amount personally....

In Letters Patent Appeal No. 37 of 1977, instead of the sum of Rs. 100/- the sum of Rs. 300/- has been mentioned, otherwise the language of the respondents' bonds is identical. The Returning Officer held that the said respondents had incurred disqualification mentioned in Section 10(1)(f) of the Bombay Provincial Municipal Corporation Act, 1949 which is reproduced below:

10.(1) Subject to the provisions of Section 13, 17 and 404, a person shall be disqualified for being elected and for being a councillor if such person-

(a) xx xx

(b) xx xx

(c) xx xx

(d) xx xx

(e) xx xx

(f) subject to the provisions of Sub-section (2), has directly or indirectly, by himself or his partner any share or interest in any contract or employment with, by or on behalf of the Corporation;

On behalf of the contending respondents, it was not seriously challenged that this sort of bond furnished by them to the Municipal Corporation amounted to any interest in a contract with the Corporation. However, it was urged do their behalf that Clause (f) was subject to the provisions of Sub-section (2). In other words, it was urged that exception was applicable to the facts of the present case. Item (ii) of Clause (b) of Sub-section (2) of Section 10 was pressed into service on behalf of the respondents For our purpose the said Sub-section (2) would read as under:

(2) A person shall not be deemed to have incurred disqualification under Clause (f) of Sub-section (1) by reason only of his-

(a) xxx

(b) having any share or interest in

(i) xx

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

The concerned respondents had used that even though the said agreement was fur security and they could be said to have any interest or share in the said agreement, it being an agreement or security for the payment of money only, exception was well attracted and disqualification mentioned in Clause (f) of Sub-section (1) of Section 10 of the Act was inoperative. This submission made on behalf of the concerned respondents found favour with the Election Tribunal and also with the learned Single Judge of this Court both of whom relying upon the case of the supreme Court in Gulam Yasin Khan v. Sahebrao Yeshwantrao Wahskar and Anr. : [1966]3SCR339 , held that the nomination papers of those respondents were wrongly ejected by the Returning Officer and inevitable result thereof was setting aside election of the present appellants and ordering fresh election for those two Wards Nos. 111 and V, of Baroda. It is this finding that has been seriously challenged on behalf of the appellants.

3. As said above, application of Clause (f) to the bond executed by the concerned respondents, was not seriously challenged and for good reasons. If any person enters into a contract, directly with the Municipal Corporation-agreement quoted above is certainly an agreement-there is no difficulty in holding that the concerned respondents had directly an interest in the said contract with the Corporation. The controversy however, that was raised before us was regarding application of the exception contained in Sub-section (2). Mr. J.G. Shah, the Learned Counsel appearing for those respondents has urged that by any stretch of imagination, consequence of the above-mentioned contract with the Corporation would be payment of money and one other. On behalf of the appellants, at one stage, it was contended that the term 'any security for the payment of money only' applied only to ascertained or liquidated sum and not to unliquidated or unascertained sum. But we find no reason to limit the operation of the term 'money' to the term liquidated sum of money for want of any valid reasons. It is one of the cardinal principles of interpretation that the words should be given their natural meaning and unless the context so requires, no word or extra words should be supplied. The moot question therefore, is whether the above-mentioned agreement which concerns the respondents and which was entered with the Corporation can be said to be an agreement for security of payment of money only or it is something more. Three possible situations can be envisaged in such circumstances; an agreement may be for payment of money only, an agreement may be for discharging some other duties, and an agreement may be both for payment of money and for discharging some other obligations along with it. As per the terms of Clause (ii) in Sub-section (2) what is sought to be excepted is only one of the three categories and not the other two. Much, therefore, would depend on the interpretation of the agreement in question.

4. As found by us while translating the material part of the contract, emphasis is on the assurance given by the concerned respondent to the Corporation to the effect that the concerned employee would faithfully discharge his duties which were to be discharged by him as employee of the Corporation. The concerned respondent stood surety for seeing that the concerned employee discharged his duties as a municipal employee, faithfully and diligently and without committing any default or mistake. This is the first part of the agreement. In other words, the agreement is for the due performance of the contract of employment by the concerned employee. The contract then proceeds further to provide for the eventuality that may arise on the non-fulfirnent of the said promise expressly given by the employee and secured by the concerned respondent. First phase of the latter part of the agreement says that if the concerned employee does not discharge his duties as assured, the concerned respondent would automatically be liable to pay a sum of Rs. 300 (in other case Rs. 100) to the Corporation without any ascertainment of extent of damage or loss occasioned thereafter. The second phase of this hinder part of the agreement then proceeds to say that if the concerned employee committed default in discharge of his duties and thereby caused any damage or loss to the Corporation, that could be estimated in terms of money, the concerned respondent undertook to make good such loss. When examined, the said agreement therefore, deals with three distinct though allied obligations undertaken by the concerned respondent. Firstly, he undertook to see that the employee whose surety he stood would discharge his duties efficiently; the second obligation undertaken by him was to pay Rs. 300 or Rs.100, as the case may be, on being called upon by the Municipal Commissioner in the case of the default by the concerned employee and on demand by the Commissioner without any proof of any actual loss or damage; the third part of the obligation is that the concerned respondent agreed to make good loss as estimated by the Municipal Commissioner without any limit as to the monetary extent. If we examine the above-mentioned agreement in this way, it is crystal clear that we cannot say that the agreement in question is an agreement 'for securing payment of money only' and nothing further. This is essentially an agreement for giving assurance or security to the Corporation in respect of due discharge of the duties by the concerned employee.

5. Mr. Shah, however, in this connection invited our attention to the scheme of the Bombay Provincial Municipal Corporations Act, 1949 and particularly he invited our attention to Section 4 thereof where different kinds of authorities to deal with various functions under the Act are envisaged. He said that the Municipal Commissioner was not under (he sway of the Members of the Corporation as he is as per the scheme of the Act, a nominee of the State Government and, therefore, is an independent person capable of carrying out the executive functions of the Corporation as per the guidelines and general policy laid down by the Corporation at its general meeting. Mr. Shah, therefore, urged that in the peculiar circumstances available in the places where the Bombay Provincial Municipal Corporations Act, 1949 applies, normal protection provided by the legislature to avoid conflict of personal interest and public duties of councillor, was no longer available. To some extent, Mr. Shah is right. But at the same time, it is to be recalled that a councillor who is elected can as well be elected to the standing committee also and as per the scheme of the Act, the standing committee is thickly associated with the day-to-day administrative functions of the Corporation, though its policy decisions are to be implemented by the Municipal Commissioner as the executive head of the Corporation. It, therefore, cannot be said as a matter of general proposition, that a councillor elected to a municipal Corporation would never be in a position to have his sway in the municipal matters and particularly in, matters connected with the contracts entered into, and particularly the contracts of employment, with the corporation. The legislature, no doubt looking to the applicability of the Act to big cities has made provision for exceptions in Sub-section (2) of Section 10 of the Act. We find in Gujarat Municipalities Act and its precursor legislation like the District Municipalities Act and Bombay Municipal Boroughs Act, no such exception were provided for. However, when the general policy of the legislature is evidenced in Sub-section (1), exceptions laid down in Sub-section (2) are to be examined in the light of the language employed therein, and the scope of the patent meaning of that context cannot be unduly enlarged or expanded on hypothetical reasons like the general right of every voter to be elected as a councillor. The first principle of interpretation is that the text as it is, should be given its natural meaning. When the legislature in Sub-clause (ii) of Clause (b) of Sub-section (2) of Section 10 has provided by way of exception an agreement for any security for the payment of money only, the term 'only' has to be given its natural normal meaning. As said above, there are three possible agreements including the agreement for security and the agreement of security for the payment of money only. For the.

6. In owe opinion, the interpretation that we have placed on the agreement and Clause (a) of Clause (b) of Sub-section (2) of Section 10 of the Act as crystal clear. We would like to advert to the authority of the Supreme Court which has been relied upon by both the learned Single Judge and the Election Tribunal. In the case of Gulam Yasim Khan (supra), provision of C.P. & Berar Municipalities Act (2 of 1922) had come to be examined. Disqualification was sought to be attracted on the ground of interest or share in any contract. The man who was alleged to be disqualified was the father of an employee in the employment of-the Municipality and he was sought to be disqualified on the ground that he had indirect interest in the contract of employment by his son with the Municipality. The Supreme Court, there, held that where what was proved was the mere relationship between the candidate and his son who was an employee of the municipal committee, it would be unreasonable to infer from such relationship alone that the person has direct or indirect interest in the employment in the municipality, and wag therefore, disqualified to be a candidate for election under Section 15 Clause (1) of the Act. The case on tend presents altogether a different set of facts. There is no question of any indirect interest. As a party to the contract of guarantee and indemnity, the concerned respondent was directly associated with the contract with the Corporation, he bad direct interest in the contract of security and the security as we have interpreted above was not only for payment of money but was for the security for the due performance of his duties by the concerned employee and payment of the sum of Rs. 300 or Rs. 100/- as the case may be or payment of unlimited compensation as may be estimated by the Municipal Commissioner in contingencies was ancillary of incidental. The judgment of the Supreme Court, therefore, in our opinion does not lend any light in the case as it deals with a different situation altogether.

6.1. In above view of the matter, all the Letters Patent Appeals are allowed-and the order passed by the learned Single in the Special Civil Application Nos. 2166 of 1976, 9 of 1977 and 134 of 1977, confirming the findings of the Baroda Election Tribunal in Election Petitions Nos. 480 and 481 of 1975 are set aside and the view of the Returning Officer is upheld. In the circumstances of the case, we order that there shall be no order as to costs in all the three appeals.

7. Mr. Shah, the learned Advocate appearing for the concerned respondents at this stage made an oral request for leave to appeal to the Supreme Court of India under Article 133 of the Constitution of India. We do not find that these appeals involve substantial question of law of general importance that in our opinion would require to be decided by the Supreme Court. Leave, therefore, is refused.


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