V.A Ransing v. Shankar Vithal Sape And Others Opponents, Bombay High Court, Judgment, Law, casemine.com

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Case Number

Special Civil Application No. 1551 of 1954

Advocates

K.B Sukthankar, for the Petitioner.
Vijaya R. Desai, with P.T Borale, for Opponent No. 1.
V.N Lokur, for Opponent No. 2.

Judges

Mr. M.C Chagla, C.J
Mr. Shah, J.

Acts

provision of the Bombay District Municipal Act,
s. 6 of the Primary Education Act.
Bombay Primary Education Act, s. 4
Bombay District Municipal Act
Bombay Primary Education Act.

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Smart Summary

Factual and Procedural Background

The opinion arises from a petition challenging an order of the Assistant Judge, Dhulia, who had dismissed the petitioner's election petition. The election in question was for membership of the Municipal School Board of the Dhulia Municipal Borough and took place on 13 September 1953. Both the petitioner and the first opponent were candidates. At the time of scrutiny of nomination papers the petitioner objected to the nomination of the first opponent on the ground that the first opponent did not possess the statutory educational qualification. The Returning Officer overruled the objection and accepted the first opponent's nomination; the first opponent was subsequently declared elected.

The Assistant Judge dismissed the petition challenging that election. The petitioner sought review of that dismissal (before the court delivering this opinion), arguing that the first opponent was not eligible to be elected because he lacked the educational qualification prescribed by the Bombay Primary Education Act. The Assistant Judge had found that the first opponent did not possess the required qualification but concluded that the irregularity did not materially affect the result and that he had no jurisdiction to go into the validity of the nomination under s. 6 of the Act. The present opinion reviews and decides those conclusions.

Legal Issues Presented

Whether the Returning Officer's acceptance of the first opponent's nomination, without a statutory provision making that decision final, ousts the jurisdiction of the District Judge to inquire into the validity of the election.
Whether the District Judge (under s. 6(2) of the Bombay Primary Education Act) has jurisdiction to determine the validity of an election where the contention is that the elected candidate did not possess the statutory educational qualification required for election.
Whether an election must be set aside where a person not possessing the statutory qualification has been elected, i.e., whether such ineligibility materially affects the result of the election.

Arguments of the Parties

First Opponent's Arguments (as presented in the opinion)

Mr. Desai, on behalf of the first opponent, contended that the Returning Officer investigated and accepted the first opponent's educational qualification and that, because the rules provide an appeal only where a nomination is rejected (and not where it is accepted), the Returning Officer's decision must be taken as final and not subject to challenge by the District Judge.
Implicitly, it was contended that because no corrupt practice under s. 6(6) was established, the District Judge lacked jurisdiction to set aside the election on the ground relied upon by the petitioner.

Petitioner's Arguments (as presented in the opinion)

The petitioner contended that the first opponent did not possess the educational qualification required by s. 4(7) of the Bombay Primary Education Act and therefore was not eligible to be elected; accordingly the election of the first opponent was invalid.
The petitioner sought to have the election declared invalid on the ground that the nomination paper was improperly accepted and that a person not qualified had been elected, which materially affected the result.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Narayan Maruti v. District Judge, Kolaba	(a) When considering an analogous provision of the Bombay District Municipal Act the jurisdiction of the District Judge under sub-s. (2) is "very wide" and not limited by subs. (5) or (7). (b) In that same case, where the statute (the Bombay District Municipal Act) expressly conferred exclusive jurisdiction on the Collector to declare a vacancy under specified provisions, the District Judge could not exercise that jurisdiction.	The Court relied on the first aspect (the breadth of the District Judge's jurisdiction under sub-s. (2) of the analogous provision) to support the proposition that the District Judge has power to adjudicate whether a person was eligible to be elected under the Primary Education Act. The Court also distinguished the Narayan Maruti holding about exclusive Collector jurisdiction under the Municipal Act, noting that the Primary Education Act does not provide such exclusive machinery, and therefore the holding that the Collector had exclusive jurisdiction under the Municipal Act did not preclude the District Judge's jurisdiction here.

Court's Reasoning and Analysis

The court's analysis proceeds in the following steps, closely following the statutory provisions and the facts found by the Assistant Judge (and not disputed on appeal):

The court examined the statute: s. 4 of the Bombay Primary Education Act prescribes the constitution of school boards and the qualifications for members elected under s. 4(5) — specifically s. 4(7) requires that elected members shall have passed the primary school certificate examination or possess an equivalent or higher qualification. It was accepted on the record that the first opponent did not possess the required educational qualification.
The court considered the Returning Officer's acceptance of the nomination. It held that nothing in the Act or in the rules framed under the Act makes an acceptance by the Returning Officer final. The rules provide for an appeal where a nomination is rejected, but there is no statutory provision making acceptance final; therefore no legislative ouster of the District Judge's jurisdiction arises from the Returning Officer's action. The court noted (by way of general principle) that while ad hoc finality of Returning Officers' decisions is sometimes provided in election rules to prevent litigating before election, no such finality is present here.
The court examined s. 6 of the Act, which confers jurisdiction on the District Judge to determine the validity of an election and authorises him, after inquiry, to confirm, amend, or set aside the declared result. Sub-s. (5) directs the District Judge to set aside an election and declare disqualification in cases of corrupt practice as defined by sub-s. (6); sub-s. (7) directs the judge not to set aside an election for mere irregularity or informality that has not materially affected the result or was not corruptly caused.
The court rejected the contention that the District Judge's jurisdiction under s. 6 is limited to corrupt practices or to the narrow situations described in subs. (5) and (7). Citing Narayan Maruti, the court held that the jurisdiction under sub-s. (2) is wide enough to cover cases where an elected person was simply ineligible at the time of election.
The court distinguished the Municipal Act scheme considered in Narayan Maruti (where the Collector had exclusive jurisdiction under s. 15 to declare vacancy) from the Primary Education Act. In the Primary Education Act there is no alternative machinery (e.g., explicit Collector or State mechanism) for deciding pre-election eligibility under ss. 4 or 5; s. 7 concerns only subsequent disqualification and vests decisionmaking in the State as to vacancies arising thereafter.
Given the absence of any statutory provision conferring exclusive jurisdiction elsewhere, the court concluded that the District Judge, in an election petition under s. 6, is the proper authority to decide whether a person was eligible to be elected. Acceptance or rejection of a nomination is an integral part of the election; thus a District Judge may adjudicate whether a nomination was improperly accepted and whether the election was validly held.
On the facts—where the Assistant Judge himself had found that the first opponent lacked the requisite educational qualification—the Assistant Judge erred in holding that he lacked jurisdiction, and erred further in concluding that the irregularity had not materially affected the result. The court reasoned that the election was materially affected when a person not qualified had been elected in place of someone who would have been eligible.

Holding and Implications

Holding:

The order of the learned Assistant Judge dismissing the petitioner's election petition is set aside. The court directed that the Assistant Judge pass the necessary order to set aside the election of the first opponent in light of this judgment. The court ordered Rule absolute with costs against the first opponent and made no order as to the costs of the second opponent.

Implications:

Direct effect on the parties: The Assistant Judge's dismissal is set aside and the first opponent's election is to be set aside; costs are awarded against the first opponent; no costs order as to the second opponent.
Jurisdictional clarification (as applied in this case): Where the statute does not provide any exclusive machinery for deciding pre-election eligibility (such as vesting exclusive jurisdiction in another authority), the District Judge under s. 6(2) of the Bombay Primary Education Act has jurisdiction to adjudicate election petitions challenging the eligibility of a person elected to a school board. Acceptance of a nomination by a Returning Officer is not, in the absence of a statutory provision to that effect, a bar to such adjudication.
On the question of materiality: Election results may be set aside where an ineligible person has been elected, because the presence of an unqualified elected member materially affects the result of the election.
The opinion bases its conclusions on statutory construction of the Bombay Primary Education Act and on the court's interpretation of the relative absence (in that Act) of alternate statutory machinery for deciding pre-election eligibility. The opinion does not purport to create doctrine beyond those interpretive conclusions; its directives apply to the matter before the court.

Rule absolute.

K.B.S

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V.A Ransing v. Shankar Vithal Sape And Others Opponents

Chagla, C.J:—

This is a petition challenging the decision of the Assistant Judge, Dhulia, dismissing the petitioner's petition challenging the election of the first opponent as a member of the Municipal School Board of the Dhulia Municipal Borough. The election took place on September 13, 1953, and the petitioner and the first opponent stood for the election. At the time of the scrutiny of the nomination papers the petitioner objected to the nomination of the first opponent on the ground that he did not possess the requisite educational qualification. That objection was overruled and the Returning Officer accepted the nomination paper of the first opponent. The election was held on September 13, 1953, and the first opponent was declared elected.

Now, under the Bombay Primary Education Act, s. 4 deals with the constitution of school boards and sub-s. (1) provides:

“Each school board shall consist of members not less than twelve and not more than sixteen in number.”

Sub-section (2) provides:

“Of these members not less than two and not more than three shall be appointed by the State Government.”

Sub-section (4) provides for the qualifications of the members to be appointed by the State Government. Sub-section (5) provides that the members other than those appointed by the State Government shall be elected by the district local board or the authorised municipality, as the case may be; and sub-s. (7) deals with the qualifications of the persons to be elected under sub-s. (5) and the qualification is that the members elected under sub-s. (5) shall have passed the primary school certificate examination or shall possess such other equivalent or higher educational qualification as may be prescribed. Now, it has been found by the learned Assistant Judge and that finding is not disputed before us that the first opponent does not possess the educational qualification required under sub-s. (7) of s. 4. Then s. 5 deals with disqualification of members and it provides that no person shall be elected, appointed or nominated a member of a school board who does not either possess the qualification mentioned in that section or suffers from the disqualification mentioned in that section. Then s. 6 deals with the jurisdiction of the District Judge to determine the validity of an election, and sub-s. (2) lays down the ambit of his jurisdiction and that ambit is that after proper inquiry the District Judge may pass an order confirming or amending the declared result of the election or setting the election aside. Sub-section (5) contains a mandatory direction upon the District Judge while exercising his jurisdiction under sub-s. (2) to set aside the election if he finds that the candidate has committed a corrupt practice within the meaning of sub-s. (6) and he has also got to declare the candidate disqualified for the purposes of the election and of a fresh election. Sub-section (6) defines what a corrupt practice is and again it is not disputed that no corrupt practice has been committed by the first opponent within the meaning of this sub-section. Then sub-s. (7) contains a further direction to the District Judge while exercising his jurisdiction under sub-s. (2) and that direction is:

“If the validity of the election is brought in question only on the ground of an irregularity or informality which has not materially affected the result of the election or which has not been corruptly caused, the Judge shall not set aside the election.”

Then s. 7 deals with disqualification which arises subsequent to the election of the member and during the term of his office, and sub-s. (2) confers jurisdiction upon the State Government to decide any question with regard to a vacancy under that section. Section 9 confers the power upon the State Government to remove, either on its own motion or on the recommendation of the board supported by a resolution passed by a two-thirds majority, any member elected, appointed or nominated on the school board, if such member has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member by reason of any physical or mental infirmity.

Now, Mr. Desai's contention on behalf of the first opponent is that inasmuch as the Returning Officer investigated the educational qualification of his client and inasmuch as he was satisfied that he had the requisite qualification and allowed him to be nominated, his decision became final and that decision cannot be challenged by the District Judge. In the first place, there is nothing in the Act or in the Rules framed under the Act which makes the decision of the Returning Officer accepting a nomination paper as final. It may be pointed out that the rules provide for an appeal if the Returning Officer rejects a nomination paper, but there is no provision for appeal if he accepts a nomination. Mr. Desai wants us to infer from that fact that the decision of the Returning Officer becomes final as soon as it is given because the rules do not even provide for an appeal from his decision. It is a well known principle of election laws that decisions of Returning Officers cannot be challenged while the election has still to take place, and we often find provisions in rules where the decision of the Returning Officer is made final. But the finality is only an ad hoc finality. The reason for that finality is that the election should not be held up by parties going to civil Courts and getting their rights adjudicated. The law provides that the proper time to adjudicate upon these rights is by election petitions after the election has taken place. But here, as we have already pointed out, there is not even a provision giving an ad hoc finality to the decision of the Returning Officer. Therefore it cannot be said that the jurisdiction of the District Judge has been ousted by the Legislature making the decision of the Returning Officer final.

It is then contended that the District Judge has no jurisdiction to consider the qualification of a member under s. 6 and it is pointed out that no corrupt practice has been established against the first opponent under sub-s. (5) of s. 6. Now, as we have had occasion to point out in Narayan Maruti v. District Judge, Kolaba,(2) when considering the analogous provision of the Bombay District Municipal Act, the jurisdiction of the District Judge under sub-s. (2) is a very wide jurisdiction and that jurisdiction is in no way limited either by sub-s. (5) or sub-s. (7). This is not a case where a disqualification attaches to an elected member after he has been elected. The contention of the petitioner is that the first opponent was not eligible for being elected and it is difficult to understand why it could not be said that the election is not valid when the person who has been elected was not eligible to be elected at all. Therefore, what the petitioner sought before the District Judge was to challenge the validity of the first opponent's election on the ground that he had no qualification required by the statute in order that he should be elected. Therefore, the disqualification relied upon by the petitioner was a disqualification which prevented the first opponent from being elected. It was not a disqualification which brought about a vacancy by reason of a disqualification arising subsequent to the election.

It is then pointed out that the jurisdiction of the District Judge may arise if the case were to fall under s. 5 which specifically deals with disqualification of members and which provides that no person shall be elected, appointed or nominated a member of a school board, and then various qualifications and disqualifications follow, and it is urged that if the intention of the Legislature was to confer jurisdiction upon the District Judge the educational qualification would have been provided for in s. 5 and not in s. 4. Now, the scheme of the Act seems to be fairly clear. Section 5 deals with eligibility of every member of the board. Section 4 deals with the eligibility of some of the members of the board. Section 4(4) deals with the eligibility of the members to be appointed by the State Government, and s. 4(7) deals with the eligibility of members who are to be elected under sub-s. (5), and therefore it is clear that the eligibility of members who are elected under sub-s. (5) could not have been dealt with in s. 5 which deals with the eligibility of every member of the school board. If the District Judge had jurisdiction to entertain this election petition on the ground of the first opponent not being eligible to be elected, then it is clear that although it may not be a case of corrupt practice under sub-s. (5) it is a case of an illegality under sub-s. (7) which has materially affected the result of the election. Nothing can be clearer than this that inasmuch as the first opponent has been elected although he was not eligible to be elected, the result of the election has been materially affected by the first opponent being elected and someone else who was qualified not having been elected.

Strong reliance is placed on a judgment of this Court in Narayan Maruti v. District Judge, Kolaba(3). In that case we were dealing with the scheme of the Bombay District Municipal Act which in material particulars differs from the scheme of the Bombay Primary Education Act. Under that Act s. 15 lays down the general disqualifications for becoming a councillor, and sub-s. (1A) provides:

“If any person is elected or nominated as a councillor in contravention of the provisions of sub-s. (1) his seat shall, subject to the provisions of sub-s. (1B) be deemed to be vacant.”

Sub-section (2) of that section provides for disqualification arising subsequent to the election. Both under sub-s. (1) and sub-s. (2) the authority competent to decide whether a vacancy has occurred is the Collector. It was in the light of this section that we considered the jurisdiction of the District Judge before whom the election was challenged on the ground that the elected member did not possess the qualification mentioned in s. 15 and we pointed out that the jurisdiction to declare a vacancy on any of the grounds mentioned in s. 15 was exclusively conferred upon the Collector and therefore that jurisdiction could not be exercised by the District Judge. Now, when we turn to the Bombay Primary Education Act, as already pointed out, no machinery is provided for deciding whether a member elected was eligible to be elected either under s. 4 or s. 5. It is only when we turn to s. 7 which deals with subsequent disqualification that the Act expressly provides that the State shall decide any question as to a disqualification arising under s. 7. It cannot possibly be suggested that the defeated candidate or a voter should be without any right if a person has been elected to the school board without possessing the necessary qualification under s. 4 or under s. 5. In the absence of any jurisdiction conferred either upon the Collector or the State Government, it is clear that it is only the District Judge while dealing with an election petition who can decide whether a person was elected without his having the necessary qualification or without his being eligible to be elected. It is equally clear that acceptance or rejection of a nomination paper is part of an election and therefore what the District Judge was doing in deciding that the first opponent did not have the educational qualification was really deciding that the election was not properly held as required by the law in that a nomination paper was improperly accepted and that a person was elected who was not qualified to be elected. The learned Assistant Judge has taken the view that he has no jurisdiction to go into the question of the validity of the nomination in view of s. 6 of the Primary Education Act. In our opinion that decision is clearly erroneous. As we have already pointed out, his jurisdiction arises under sub-s. (2) of s. 6 and that jurisdiction is wide enough to cover a case of a person being elected without the necessary qualification or without being eligible to be elected. On the facts he has held that the first opponent did not have the requisite educational qualification required under s. 4. Surprisingly enough, having come to that conclusion he has taken the view that there was no material irregularity which affected the result of the election. As we have already pointed out, the learned Judge is clearly wrong when he holds that the result of the election is not materially affected when a person not qualified to be elected has been elected.

We will therefore set aside the order of the learned Assistant Judge who dismissed the petitioner's petition and direct him to pass the necessary order for setting aside the election of the first opponent in the light of this judgment. Rule absolute with costs against the first opponent. No order as to costs of the second opponent.

Rule absolute.

K.B.S

V.A Ransing v. Shankar Vithal Sape And Others Opponents

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

First Opponent's Arguments (as presented in the opinion)

Petitioner's Arguments (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

V.A Ransing v. Shankar Vithal Sape And Others Opponents

Comments