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Ramnarain Ramgopal Chamediya v. Shri Ramchandra Jagoba Kadu, .

Bombay High Court

Dec 20, 1957

Judgment

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Comprehensive Summary of the Opinion — Y.S. Tambe, J.

Factual and Procedural Background

The appeal arises under Section 116-A of the Representation of the People Act, 1951. The appellant, Ramnarain, was the defeated candidate in the election to the Bombay Legislative Assembly from the Yeotmal Assembly constituency. The respondent, Ramchandra, was the declared winner.

Key undisputed facts: the respondent's name appeared twice in the Yeotmal constituency electoral roll — at No. 572 for village Gharfal and at No. 816 for Yeotmal town. In his nomination paper the respondent gave roll no. 572 (Gharfal). No objection was taken to that nomination. On polling (6-3-1957) the respondent voted at Yeotmal using roll no. 816. He did not vote twice. Counting completed and result declared on 8-3-1957. The respondent received the highest number of votes and was declared elected; the result was published in the Gazette on 4-4-1957.

Prior to the election the respondent was a sitting member of the Bombay Legislative Council and was receiving salary; he tendered his resignation from that Council seat on 24-3-1957. On 21-4-1957 the appellant filed an election petition before the Election Commission of India, which was referred to the Election Tribunal at Wardha. The Election Tribunal dismissed the petition, and the appellant appealed.

Legal Issues Presented

Whether the respondent was disqualified under sub-clause (a) of clause (1) of Article 191 of the Constitution (i.e., whether he held an "office of profit" under the Government such that his election must be set aside under clause (a) of sub-section (1) of Section 100 of the Representation of the People Act, 1951).
Whether the respondent's name appearing twice in the electoral roll constituted non-compliance with Section 18 of the Representation of the People Act, 1950 and thereby rendered him not qualified under Section 5(c) of the Act of 1951 — such that his election would be void under clause (d)(iv) of sub-section (1) of Section 100 of the Act of 1951.
Whether the respondent's failure to resign his Legislative Council membership within 14 days (as argued under Section 70 of the Act of 1951, Rule 136 and Section 67A) caused his seat to become vacant and thereby affected the validity of his election.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

First contention: The respondent was a sitting member of the Bombay Legislative Council and received salary; therefore he held an office of profit under the Government within the meaning of Article 191(1)(a) and was disqualified from being chosen as a member of the Legislative Assembly — ground for voiding the election under Section 100(1)(a) of the Act of 1951.
The appellant relied on Articles 168, 174 and 192 of the Constitution and the decision in Ravanna Subanna v. G.S. Kaggeerappa (AIR 1954 SC 653), paras 11 and 12(A), in support of the office-of-profit contention.
Second contention: Because the respondent's name appeared twice in the electoral roll of the same constituency, Section 18 of the Act of 1950 was not complied with. Therefore, the respondent was not an "elector" under Section 5(c) of the Act of 1951 and his election should be declared void under Section 100(1)(d)(iv).
Third contention (raised at Tribunal arguments): Under Section 70 read with Rule 136 and Section 67A, the respondent had to resign extra seats within 14 days from the date of election (taken as 8-3-1957); his resignation on 24-3-1957 was outside that 14-day period and, so it was argued, his seat had fallen vacant.
Additionally, the appellant argued the Court could grant relief based on subsequent events under Order 7 Rule 7 CPC — claiming that if subsequent events entitled him to relief, the court should declare the respondent's election invalid and declare the appellant as duly elected.

The opinion does not record a detailed, separate statement of the respondent's affirmative arguments; the Court's analysis addresses and rejects the appellant's contentions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ravanna Subanna v. G.S. Kaggeerappa, AIR 1954 SC 653	Interpretation of "office of profit" — specifically discussion of the meaning of "profit" and whether amounts paid were profit or merely reimbursement of out-of-pocket expenses.	The Court held that the cited observations addressed the meaning of "profit" and not the separate issue whether an office is "under the Government." On the facts of that case, the payment was found to be only reimbursement; hence the decision did not support the appellant's broader contention that the source of salary alone determines whether an office is under the Government.

Court's Reasoning and Analysis

The Court proceeded by analysing each contention against the statutory and constitutional framework expressly invoked in the opinion.

Office of profit (Article 191(1)(a)) — three elements: the Court set out that to attract Article 191(1)(a) it must be shown that (1) the person was holding an office, (2) that it was an office of profit, and (3) that it was an office under the Government of India or a State specified in the First Schedule.

Was the respondent holding an office? The Court concluded yes. The respondent was a sitting member of the Bombay Legislative Council and Section 157 of the Act of 1951 confirms that membership is a term of office starting from statutory notification/publication.

Was it an office of profit? The Court found that it was. It relied on the Bombay Legislature Members' Salaries and Allowances Act, 1956 (ss. 2(e), 3 and 4) showing members are paid a salary (Rs.150 per month then) and daily allowances; the salary made the membership an office of profit.

Was it an office under the State Government? The Court rejected the appellant's contention that the source of salary (state treasury) alone decides the "under the Government" question. Instead, it adopted the principal criterion that the appointment to and removal from the office must be under the control of the State Government. Applying that test, the Court concluded the respondent's membership of the Legislative Council was not an office under the State Government because:

The respondent's membership arose by election and statutory notification (S.74 and S.157 of the Act of 1951), not by appointment by the State Government.
There is no statutory provision permitting the State Government to remove an elected member from office.
Powers of the Governor under Article 174(2)(b) (and general executive powers under Article 154) do not amount to control enabling the State to remove an individual member; dissolution of a house (even if applicable) is different from removal of an individual member.
Article 164 (concerning ministers) and the constitutional distinctions show that ministers (appointed and removable by the Governor) hold offices under the State Government, unlike elected members whose office originates in election and statutory notification.

The Court therefore held that although the respondent held an office and that it was an office of profit, it was not an office "under the Government" within Article 191(1)(a). Consequently Article 191(1)(a) did not apply and the first ground for invalidating the election failed.

On the double entry in the electoral roll (Section 18, Act of 1950 and Section 5(c), Act of 1951): The Court noted the respondent's name did appear twice (roll no. 572 and 816). It examined the statutory definitions: "elector" under Section 2(e) of the Act of 1951 is a person whose name is entered in the electoral roll for that constituency. The Court observed that nowhere in the statute is there any provision that a twice-entered name should result in deletion of both entries or that the twice-entered name equates to absence from the roll.

The Court further reasoned that accepting the appellant's submission that a double entry makes a person not an elector would produce unrealistic and potentially abusive consequences (e.g., a candidate could maliciously cause a rival's name to be entered twice). The Court pointed to Section 62(4) of the Act of 1951 which expressly contemplates that a name may appear more than once and provides that a person shall not vote more than once in the same constituency notwithstanding multiple registrations; if he does, all his votes there are void. By juxtaposing Section 18 (Act of 1950) and Section 62(4) (Act of 1951), the Court concluded Section 18 is directory (a direction to roll-preparing officers) rather than mandatory in the sense of extinguishing electoral entitlement when there is double entry. Therefore the second ground for invalidation under Section 100(1)(d)(iv) failed.

On the 14-day resignation issue (Section 70, Rule 136, Section 67A): The Court described the appellant's argument that the respondent ought to have resigned his Council seat within 14 days (counting from the date of election, 8-3-1957) and that his resignation on 24-3-1957 was outside that timeframe. However, the Court declined to decide this issue on the merits because:

The appeal arises from an Election Tribunal decision and the grounds on which an Election Tribunal can declare an election void are confined to Section 100 of the Act of 1951.
The question of failure to resign within 14 days is not among those grounds; therefore it was beyond the scope of the Tribunal's competence to declare the election void on that basis, and it would be inappropriate for an appellate court to do what the trial authority was not competent to do.

The Court therefore held that this contention has no relevance to the validity of the respondent's election before the Tribunal under Section 100 and need not be adjudicated in the appeal.

On Order 7 Rule 7 CPC invocation: The Court considered the appellant's submission that the court could grant relief based on subsequent events. It observed that even if Order 7 Rule 7 had application, the appellant's two claimed remedies (declaration that the respondent's election is invalid; declaration that the appellant is duly elected) could not both stand: if the resignation argument were successful the seat would actually be vacant and hence the appellant could not be declared duly elected. Further, because the resignation contention is not a ground within Section 100, it could not be used to declare the election invalid.

Holding and Implications

Holding: APPEAL DISMISSED WITH COSTS.

Implications:

The Election Tribunal's dismissal of the election petition was upheld; the respondent's election to the Bombay Legislative Assembly from the Yeotmal constituency was not set aside on the grounds advanced in the petition and appeal.
The Court held that the respondent, though a member of the Legislative Council receiving salary (an office of profit), did not hold an office "under the Government" for the purposes of Article 191(1)(a). Consequently, that ground could not invalidate his election.
The Court held that the mere fact of a double entry in the electoral roll did not oust a person's status as an elector; Section 18 of the 1950 Act is directory in the relevant sense and Section 62(4) (Act of 1951) contemplates multiple entries without automatically destroying electoral entitlement. Therefore the double entry did not void nomination or election under Section 100(1)(d)(iv).
The Court declined to decide the 14-day resignation/seat-vacancy question because it is not a ground on which an Election Tribunal could declare an election void under Section 100; accordingly, the issue was held to be irrelevant to the validity of the election in this appeal.
The opinion does not announce or rely upon any novel binding precedent beyond applying existing provisions of the Constitution and statutes to the facts; it does not state that it is creating a new rule of law beyond the case-specific holdings recorded above.

Result recorded in the opinion: Appeal fails and is dismissed with costs; "Appeal dismissed." (per the concluding lines of the judgment).

Show all summary ...

Y.S Tambe, J.:— This is an appeal under S. 116-A of the Representation of the People Act, 1951 (No. XLIII of 1951), hereinafter called the Act of 1951.

2. The appellant Ramnarain is the defeated candidate. Ramnarain and respondent Ramchandra were two rival candidates for election to the Bombay Legislative Assembly from the Yeotmal Assembly constituency.

3. Facts material for the purposes of this appeal, which are not in dispute, in brief are: Respondent's name appeared at two places in the electoral roll of the Yeotmal Assembly constituency. It appeared once at no. 572 in village Gharfal and second time at no. 816 in Yeotmal town. Both Gharfal and Yeotmal fall within the area comprising Yeotmal Assembly constituency. In the nomination paper submitted by the respondent, he had mentioned his electoral roll no. as 572 of Gharfal. No objection was taken to his nomination paper. Elections were held on 6-3-1957. Respondent cast his vote at Yeotmal and obtained the ballot paper on the electoral roll no. 816 of Yeotmal town. It is to be noted that he had not voted twice, i.e once on roll no. 816 of Yeotmal and second time on roll no. 572 of Gharfal. The counting of votes was completed by 8-3-57 and on that day the result was declared. The respondent obtained highest number of votes and he was declared duly elected. The result of the elections was duly published in the official gazette on 4-4-1957. It is to be noted that prior to the date of election the respondent was a sitting member of the Bombay Legislative Council and was also receiving pay in that capacity. He tendered resignation of his seat in the Bombay Legislative Council on 24-3-1957. On 21-4-1957 the appellant made an election petition before the Election Commission of India. This election petition was then referred for trial to the Election Tribunal Wardha.

4. The material contentions raised by the appellant in the petition were two-fold; firstly, it was contended that as the respondent no. 1 since some time prior to the date of election was a sitting member of the Bombay Legislative Council and was receiving salary of that office, he was a person disqualified for being chosen as a member of the Bombay Legislative Assembly within the meaning of sub-clause (a) of clause (1) of Art. 191 of the Constitution of India, and, therefore, his election was liable to be set aside under clause (a) of sub-section (1) of S. 100 of the Act of 1951. The second contention was that as the respondent's name appeared twice in the electoral roll, once at roll no. 572 of village Gharfal and for the second time at roll no. 816 of town Yeotmal, the provisions of S. 18 of the Representation of the People Act, 1950 (No. XLIII of 1950), hereinafter called the Act of 1950, were not complied with, and, therefore, he was not qualified to be chosen to fill a seat in the Bombay Legislative Assembly within the meaning of S. 5(c) of the Act of 1951. It was, therefore, contended that the election of the respondent was liable to be declared void under clause (d)(iv) of sub-section (1) of S. 100 of the Act of 1951.

5. In addition to these two contentions, at the stage of arguments before the Election Tribunal the election of the respondent was challenged on the ground that he having not resigned his membership of the Bombay Legislative Council within 14 days of the date of election, that is within 14 days from 8th March 1957, his seat has fallen vacant under S. 70 of the Act of 1951. None of these contentions prevailed before the Election Tribunal. It, therefore, dismissed the petition. The appellant, therefore, has preferred this appeal.

6. Shri B.R Mandlekar, who appears for the appellant, has pressed these three contentions before us. As regards the first contention, he contends that the Election Tribunal was in error in holding that the respondent was not holding an office of profit under the Government. He has placed reliance on Arts. 168, 174 and 192 of the Constitution. He has also referred us to the decision reported in Ravanna Subanna v. G.S Kaggeerappa, AIR 1954 SC 653, paras 11 and 12(A).

7. Article 191(1)(a) of the Constitution reads as follows:

“A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.”

8. Now, to attract this provision it must be established that a person whose election is challenged (1) was holding an office (2) that it was an office of profit and (3) that it was under the Government of India or the Government of any State specified in the First Schedule. In the instant case, the respondent was, at the material time, a sitting member of the Bombay Legislative Council and was also receiving a salary. In our view, the respondent in his capacity as a member of the Bombay Legislative Council was holding an office. Section 157 of the Act of 1951 specifically says so. It provides that the term of office of a member of the Legislative Council of a State whose name is required to be notified in the Official Gazette under S. 74 shall begin on the date of such notification, and the term of office of a member of the Legislative Council of a state whose name is not required to be notified under S. 74 shall begin on the date of publication in the Official Gazette of the declaration containing the name of such a person. The provisions of S. 2(e) read together with Ss. 3 and 4 of the Bombay Legislature Members' Salaries and Allowances Act, 1956 (No. XLIX of 1956) indicates that it is an office of profit. Section 2(e) defines that a ‘member’ means a member of the Assembly or the Council, as the case may be. Section 3 provides that there shall be paid to each member a salary at the rate of Rs. 150/- per month. Section 4 provides for daily allowance paid to the members when attending the session of the Assembly or Council or the meeting of the Committee. Thus to defray out-of-pocket expenses the members are paid separately daily allowances; the salary paid to the member, therefore, in our opinion, makes the office of the member of the Legislative Council as an office of profit.

9. The next question, however, to be considered is whether it is an office of profit under the Government. Shri Mandlekar very vehemently contends that the funds from which the salaries of the members of the Legislative Council are paid are the funds of the State Government of Bombay. He relies on the evidence of Shri Manohar, Extra Assistant Commissioner. Shri Manohar has deposed that he was a Treasury Officer at the material time at Yeotmal and the salary of the respondent was paid from the Yeotmal Treasury under “XXV-General Administration Major Head, and Minor Head B-Legislative Bodies. State Legislature Secretariat”. According to Shri Mandlekar, this is the chief criterion to ascertain as to whether a person holding office is under the State Government or not. In out view, the source from which the salary is paid to a person holding office is not necessarily the sole test to deter, mine whether he is holding an office under the State Government. The principal criterion is whether the appointment to the office and removal therefrom of a person is under the control of the State Government. If it be so, then it could safely be said that person holds an office under the State Government. In the instant case, the appointment of the respondent to the office of the membership of the Bombay Legislative Council was not under the control of the State Government. It is common ground that the respondent was elected to the Bombay Legislative Council, and under the provisions of S. 157 of the Act of 1951 he assumed the office of the membership of the Legislative Council as and from the date his name was notified in the Official Gazette. Notification of members elected is not at the option of the State Government but is obligatory on it under the provisions of S. 74 of the Act of 1951. Thus, the respondent does not owe the appointment to this post to the State Government. There is no provision in any of the enactments enabling the State Government to remove any member of the Legislative Council from his office. In this connection, Shri Mandlekar has referred us to Art. 174 of the Constitution. He says that under Art. 154 of the Constitution the executive power of the State vests in the Governor; under Art. 174(2)(b) he can dissolve the Legislative Council; and the removal of the member of the Legislative Council is, therefore, under the control of the State Government. It is not possible for us to accept this contention, Firstly, in our opinion, the Governor, acting under Art. 174, is not exercising any executive power of the State vested in him under Art. 154. In our opinion, he is exercising his powers as a component part of the Legislature. Article 168 provides that for every State there shall be a Legislature which shall consist of the Governor and, in certain States, two Houses, or, in certain other States, only one House. Where there are two Houses of the Legislature in a State, one shall be known as Legislative Council and the other as Legislative Assembly, and where there is only one House it shall be known as Legislative Assembly. Secondly, sub-clause (b) of clause (2) of Art. 174, in terms, does not empower the Governor to dissolve the Legislative Council. Thirdly, even assuming that the Governor has any power to dissolve the Legislative Council under Art. 174(2)(b) of the Constitution, in our opinion, dissolution of the entire Council is not the same thing as removal or dismissal of a member from the Council. In the former case the House itself ceases to function, in the latter the House continues to function but the individual ceases to be its member. The other provision referred to us by Shri Mandlekar is clause (1) of art. 192. This clause only provides that if any questions arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of art. 191, the question shall be referred for the decision of the Governor and his decision shall be final. In our view, it has no concern with the removal as such of any of the members of the Legislative Council from his office. Further, certain other provisions in the Constitution itself and the Representation of the People Act, which we will presently advert to, lend support to our conclusions. clause (2) of art. 191 provides that a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. The phraseology “shall not be deemed” indicates that though, in fact a Minister holds an office of profit under the Government of India or the Government of any State, as the case may be, he would not be a person disqualified for being a member of the Legislature within the meaning of sub-clause (a) of clause (1) of Art. 191. Now, when Art. 192 is read along with Art. 164, the difference between the position of a member of the Legislature and a Minister becomes clear. Article 164 provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. This Article falls under the Chapter “The Executive of the State.” It indicates that in the case of Ministers their appointment is made by the Governor in exercise of his executive powers and when the provisions of Art. 154 are kept in view, those powers are the executive powers of the State vested in him. The Ministers, therefore, hold office under the State Government. Such is not the case of the elected members of the Legislature. As already stated, he holds office by virtue of his election duly notified.

10. We may also in this connection refer to the provisions of Art. 101(1) and (2) and Art. 190(1) and (2) of the Constitution of India read together with Ss. 68, 69 and 70 of the Act of 1951. These provisions clearly indicate that a person can contest a seat at the election even though he is already holding a seat in another Legislature at that time, though in the event he gets elected he has to make a choice within a certain time as to which seat he would retain.

11. The decision relied on by Shri Mandlekar is, in our view, not of any assistance to the appellant. The observations in AIR 1954 SC 653 (A), to which reference was made, read as follows:

“The whole point that requires consideration under this head is whether at the material time the appellant held any office of profit under the Government. …….The plain meaning of the expression seems to be that an office must be held under the Government to which any pay, salary, emoluments or allowance is attached.”

12. Now, in that case their Lordships were not considering the implication of the phrase “under the Government” but were considering the implication of the word “profit”, and on facts their Lordships found that the amount paid to the person concerned was only an amount to defray out-of-the-pocket expenses and did not yield any profit to him. There was no dispute in that case as to whether the person concerned was holding an office under the Government or not. That case, therefore, cannot be taken as an authority for the proposition contended by Shri Mandlekar that the test for holding as to whether a person is holding an office under the Government is only the source from which the money comes.

13. For reasons stated above, in our judgment, the respondent was not a person holding an office of profit under the State Government at the time of his election. The provisions of sub-clause (a) of clause (1) of Art. 191 are, therefore, not attracted to the facts of this case.

14. Coming to the second point, as already stated, the respondent's name did, in fact appear at 2 places, once at roll no. 572 of village Gharfal and second time at roll no. 816 of town Yeotmal. The nomination paper was filled on the basis of roll no. 572 and the vote was cast only on the basis of roll no. 816. Shri Mandlekar contends that S. 18 of the Act of 1950 is in mandatory terms; it provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once; and inasmuch as the respondent's name was entered twice in the electoral roll of the same constituency, there has been no compliance of S. 18 of the Act of 1950. He, therefore, contends that as the name appeared twice, the respondent was not a person entitled to stand for election within the meaning of S. 5(c) of the Act of 1951. It, no doubt, is true that the provisions of S. 18 had not been complied with, but we are not prepared to accept the contention of Shri Mandlekar, which virtually amounts to that as a result of it, it has to be assumed that his name did not appear in the electoral roll at all.

15. Clause (c) of S. 5 of the Act of 1951 provides:

“A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless

(a) ***

(b) ***

16. The word “elector” is defined in S. 2(e) of the Act of 1951. It reads as follows:

“‘elector’ in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in S. 16 of the Representation of the People Act, 1950.”

17. As already stated, the respondent's name appeared, though twice, in the electoral roll. It has not been provided anywhere that in the event the name of a person appears twice in the electoral roll, then the effect thereof is that both the names should be deemed to have been deleted from the electoral roll. In the absence of any such specific provision, to accept Shri Mandlekar's contention would yield startling results. It would give rise to unscrupulous practice in the field of election. A candidate at an election may possibly see that the name of his rival candidate is got entered at more than one place in the electoral roll. It is well-nigh impossible for any person to scan the entire electoral roll of a constituency to find out whether his name appears more than once in the electoral roll. Further, we find in the statute itself that it was in the contemplation of the Legislature that such mistakes are likely to occur and the name of a voter may appear more than once in the electoral roll. Sub-section (4) of S. 62 of the Act of 1951 provides that no person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void. Now, if the provisions of S. 18 of the Act of 1950 and sub-sec. (4) of S. 62 of the Act of 1951 are placed in juxtaposition, it becomes clear that the provisions of S. 18, are not mandatory but only directory. The provisions of S. 18 are by way of giving a direction to the officers preparing the electoral roll that they should take care that the name of an elector does not appear more than once in the electoral roll of that constituency. We are, therefore, of the view that merely because the name of the respondent appeared more than once in the electoral roll of the constituency, it cannot be said that the nomination of the respondent for being elected was void or that there has been any non-compliance with the provisions of the Constitution or the Act of 1951 within the meaning of sub-clause (iv) of clause (d) of sub-sec. (1) of S. 100 of the Act of 1951.

18. As regards the third contention it is founded on S. 70 of the Act of 1951, rule 136 of the Rules framed under that Act, and S. 67-A of that Act. Section 70 provides that if a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then, unless within the prescribed time he resigns all but one of the seats by writing under his hand addressed to the Speaker or Chairman, as the case may be, or to such other authority or officer as may be prescribed, all the seats shall become vacant. Rule 136 provides that the time within which a person may resign all but one of the seats in either House of Parliament or in the House or either House of the Legislature of a State, to which he has been elected, shall be 14 days from the date of his election under S. 67A. Section 67A provides that for the purposes of this Act (Act of 1951), the date on which a candidate is declared by the returning officer under the provisions of S. 53, S. 54. S. 55-A or S. 66, to be elected to a House of Parliament or of the Legislature of a Stater shall be the date of election of that candidate. What Shri Mandlekar argues is that looking to the provisions, the date of election of the respondent within the meaning of the Act was 8th March 1957, and that it was incumbent on the respondent to resign within 14 days from his membership of the Legislative Council of the State but he not having done so, i.e having resigned on 24-3-1957 (i.e 2 days more than 14 days), his seat had fallen vacant. No doubt, much could be said on behalf of either side on the question raised by Shri Mandlekar, but, in our view, it will not be desirable to express ourselves on this issue in this case, as, in our judgment, the issue raised has no relevance to the appeal with which we are concerned. The matter has come up before us by way of an appeal arising out of a decision given by the Election Tribunal. The grounds on which an Election Tribunal could declare an election voids are contained in S. 100 of the Act of 1951. It would, therefore, be not competent for the Tribunal to traverse beyond its scope. It will also not be open to the appellate Court to do something in exercising its appellate powers which the trying authority was not competent to do. Now, when the provisions of S. 100 are looked to, it is clear that the contention raised by Shri Mandlekar is not one of the grounds on which an election could be declared void thereunder. The provisions of the Act of 1951 and rules made thereunder, on which reliance is placed by Shri Mandlekar, show that the date of the election of the respondent within the meaning of the Act was 8-3-1957 and it cannot be disputed that on that date the election of the respondent could not be rendered void on the strength of the present contention. He had 14 days time still in his hands to resign his office of membership of the Bombay Legislative Council. His alleged failure to resign from the membership, of the Legislative Council, therefore, in our judgment, has no concern whatsoever with the validity or otherwise of his election to the Legislative Assembly.

19. Shri Mandlekar, however, states that it is the duty of the Court under Order 7 Rule 7 of the Civil Procedure Code to grant relief to the appellant if it is found that on account off the happening of subsequent event he gets entitled thereto. Now, the reliefs claimed are that it be declared that the election of the respondent is invalid and it be declared that the appellant is a duly elected candidate to fill the seat of the Bombay Legislative Assembly from the Yeotmal constituency. Assuming for a moment that the provisions of Order 7 Rule 7 could be called in aid in the instant case, as observed above, the contention raised is no ground for declaring the election of the respondent invalid. As regards the second relief, on his own contention, he is not entitled to it because if there is any force in the argument advanced, then the result is that the seat falls vacant and therefore the appellant cannot be declared to be a duly elected candidate to fill the seat of the Bombay Legislative Assembly.

20. In the result, therefore, in our judgment, there is no merit in this appeal. It fails and is dismissed with costs.

D.H.Z

Appeal dismissed.