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Brij Kishore Vs. Ram Niwas - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. (Election) Appeal No. 105 and 106 of 1971
Judge
Reported in1972WLN89
AppellantBrij Kishore
RespondentRam Niwas
DispositionAppeal allowed
Cases ReferredHarnam Singh Modi and Anr. v. State of Punjab
Excerpt:
.....appointment under a local authority when he was acting as a legal adviser to the municipal board, sarwar on an compensation of rs. 450/-. the word 'mehantana' also means compensation for the labour done. here of course the labour would be not physical, but intellectual.;the nomination paper of shri ram niwas was properly rejected by the returning officer. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a..........latter's cases in the courts at kekri, as he was holding the-post of legal adviser of municipal board sarwar. ex 2 is the copy of the order of his appointment for the financial year 1969-70, whereas ex 3 is the copy of such an order for the year 1970 71. ex 3 dated 9-3-1971 states that as shri ram niwas has been doing the job of legal adviser, therefore, his tenure of service was extended for the year 1970 71. remuneration would be same as before. in ex, 2 the amount of remuneration is shown as rs. 450/ per annum. so one thing is clear from ex 2. and ex. 3. it is that shri ram niwas was during the relevant period working as legal adviser of municipal board, sarwar on an annual remuneration of rs. 450/-. shri ram niwas has no doubt said that he is not full-time or part-time salaried.....
Judgment:

R.D. Gattani, J.

1. The last general elections to the Municipal Board, Kekri took place on 25-10-1970 and the result was declared on 26-10-1970. Respondents Ram Niwas and Jagdish Chandra, appellant Brij Kishore and one Padam Chand, who later on withdrew from the election, filed their nomination papers in respect of Ward No. 2. Scrutiny of the nomination papers took place on 30-9-1970 and on an objection being taken by the appellant Shri Brij Kishore Sharma in respect of respondent Ram Niwas, his nomination paper was rejected under Section 26 of the Rajasthan Municipalities Act {hereinafter referred to as 'the Act') The result was that only two candidates viz., Brij Kishore Sharma and Jagdish Chandra remained in the field and as a result of the polls Brij Kishore Sharma was declared elected.

2. Aggrieved by the alleged improper rejection of the nomination paper of Shri Ram Niwas, two election petitions were filed: one by Shri Ram Niwas himself, who is respondent in both the appeals No. 105 of 1971 and 106 of 1971 and the other by one Shri Bajrang Lal, who is respondent No. 1 in S.B. Civil Miscellaneous Appeal No. 106 of 1971. Both these election petitions were accepted by the Tribunal (Munsif Magistrate), Kekri and the election of Shri Brij Kishore Sharma was declared null and void. Shri Brij Kishore Sharma has, therefore, filed these two appeals against that decision of the lower Tribunal.

3. Both the appeals can conveniently be disposed of by a common order as the arguments addressed by the learned Counsel for the parties were the same in both the appeals.

4. It is not disputed that during the relevant period Shri Ram Niwas Agarwal was conducting the cases on behalf of Municipal Board, Sarwar in the Courts at Kekri for which he used to get Rs. 450/- annually. The contention of the appellant, therefore, is that the case of Shri Ram Niwas comes within the preview of Sub-clause (8) of Section 26 'the Act' and he was therefore, disqualified for being chosen as a member of the Municipal Board, Kekri, Section 26(8) of 'the Act' reads as under:

Section 26: General disqualifications for members:

A person, notwithstanding that he is otherwise qualified shall be disqualified for being chosen as a member of a Board..

(viii) who holds a salaried or part-time appointment under the Central or a State Government or a local authority, or....

So the question which emerges for determination is whether during the relevant period Shri Ram Niwas can be said to held salaried or part-time appointment under a local authority, because he was employed by the Municipal Board, Sarwar for conducting the latter's cases in the Courts at Kekri, as he was holding the-post of legal adviser of Municipal Board Sarwar. Ex 2 is the copy of the order of his appointment for the financial year 1969-70, whereas Ex 3 is the copy of such an order for the year 1970 71. Ex 3 dated 9-3-1971 states that as Shri Ram Niwas has been doing the job of legal adviser, therefore, his tenure of service was extended for the year 1970 71. Remuneration would be same as before. In Ex, 2 the amount of remuneration is shown as Rs. 450/ per annum. So one thing is clear from Ex 2. and Ex. 3. It is that Shri Ram Niwas was during the relevant period working as legal adviser of Municipal Board, Sarwar on an annual remuneration of Rs. 450/-. Shri Ram Niwas has no doubt said that he is not full-time or part-time salaried appointees of Sarwar Municipal Board, whereas the contention of the appellant, is that upon the basis of Ex. 2 and Ex. 3 the provisions of Clause (viii) of Section 26 of 'the Act' were attracted and Shri Ram Niwas was, therefore, disqualified for been chosen as a member of Municipal Board, Kekri.

5. According to the finding of the lower Tribunal Section 26 (viii) of the Act, did not. stand in the way of Shri Ram Niwas as the relations between the Municipal Board. Sarwar and Shri Ram Niwas were not that of master and servant, but that of client and counsel only, as the contract between them Was professional only; as there is no post of 'an Advocate for Municipal Board, Sarwar according to the Rajasthan Municipal Service Rules, 1960 or Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963, as Shri Ram Niwas did not get any salary from Municipal Board, Sarwar, but got his 'fee' 'Mehantana' only; and as Shri Ram Niwas had not given up his profession in lieu of Ex. 2 or Ex. 3.

6. So far as leaving the profession is concerned that was in my opinion not necessary as Shri Ram Niwas was not employed for the whole time. Of course so long as he was legal adviser on law matters referred to by that Board. For deciding whether the case fell under Sub-clause (viii) of Section 26 of 'the Act' it is not necessary that the relation of a master and servant should be established, nor it is to be seen whether the employment of Shri Ram Niwas fell under any of the Service Rules. Simply because the word 'Mehantana' is used in Ex. 3 it will not mean that Shri Ram Niwas did not get annual salary from that Board. The meanings of the word 'salary' in Webster's Third New International Dictionary are as follows:

Money given to soldiers for salt, pension, stipend; fixed compensation paid regularly (as by the year, quarter, month, or week) for services: such compensation paid to holder of official, executive, or clerical positions-often distinguished from wage: remuneration for services given: to pay (as a person) for something done.

And the word 'salaried' means 'receiving or yielding a salary.

The wore 'appointment' means in the same Dictionary 'an act of appointing: she act of coming to terms of capitulation; designation by virtue of a vested power of a person to enjoy an estate or other specific property subject to that power; designation of a person to bold a nonelective office or performs function'.

7. When Ex 3 is judged from this angle, it is clear that during the relevant period Shri Ram Niwas was holding salaried part-time appointment under a local authority when he was acting as a legal adviser to the Municipal Board, Sarwar on an compensation of Rs. 450/- The word 'mahnata' also means compensation for the labour done. Here of course the labour would be of physical, but intellectual. The contention of the lower Tribunal that there was a bilateral agreement between the Board and Shri Ram Niwas is not borne out of the record, because counter part of Ex,2 or Ex. 3 has not been bought on record. Ex. 2 and Ex. 3 are in fact copies of the resolution passed by the Municipal Board, Sarwar on two occasions. And even if there ware bilateral agreements that would not make any difference.

8. Placing reliance upon Harnam Singh Modi and Anr. v. State of Punjab the learned Counsel for respondent while drawing my attention to the provision of Sub-clauses (viii) and (xiii) of Section 26 of 'the Act' urged that when the case was covered specifically by Sub-clause (xiii) recourse can not be taken to Sub-clause (viii) as it was a general provision only. In the Punjab authority it was held that when two provisions of a statute are in conflict with each other an effort should be made to reconcile than. If the conflict is irreconcilable the specific provisions will over ride the general provisions.

9. Sub-clause (viii) of Section 26 of 'the Act' has already been stated above. Sub-Clause (xiii) runs as follows:

26. General disqualifications for members:

A person, notwithstanding that he is otherwise qualified shall be disqualified for being chosen as a member of a Board:....

(xiii) who is employed as a paid legal practitioner on behalf of such Board or accepts employment as legal practitioner against such Board during the term for which he has been elected, or.

10. This sub-clause also refers to the disqualification of a person for being chosen as a number of the Board. I, however, fail to find that there is any conflict between the two clauses In the first place Sub-clause (xiii) refers to a person who is employed as a paid legal practitioner and accepts employment as legal practitioner against a particular Board-in this case it will mean Municipal Board, Kekri and does not relate to any other 'local authority', whereas Sub-clause (viii) speaks of 'a local authority', In the second place both these sub-clauses refer to a disqualification and as such there is not contradiction. In the third place looking at the wordings of Sub-clause (xiii) it appears that simultaneously with the amendment of main Section 26 of 'the Act' in the year 1961, when the words 'and for being' between the words 'being chosen as' and 'a member of a Board, were deleted, the wordings of Sub-clause (xiii) also needed suitable amendment, because as it is it' refers to a person employed as a paid legal practitioner on behalf of the Board or against the Board after his election to the Board The main Section 26 of 'the Act' originally stood as follows:

26. General disqualifications for members:

A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as. and for being, a member of a board:.

In this view of matter Sub-clause (xiii) is of no avail to the respondents.

11. As a result of the above discussion I am satisfied that the nomination paper of Shri Ram Niwas was properly rejected by the Returning officer.

12. These appeal therefore, succeed and they are accepted. The impugned orders of the lower. Tribunal dated 24.7.1971 in both the election petitions are set aside and both the election petitions stand dismissed with costs to the appellant through out.


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