Bookmark
PDF
Share
CaseIQ

Narayan Maruti Mohakar v. District Judge, Kolaba

Bombay High Court

Nov 10, 1952

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Concise Analytical Summary of the Opinion (Chagla, C.J.)

Factual and Procedural Background

The opinion concerns a municipal election in Ward No. III of the Panvel Municipality held on June 10, 1952 (votes counted June 12, 1952). The petitioner, a Harijan, and opponent No. 2 contested the single seat reserved for Harijans. The petitioner received 395 votes; opponent No. 2 received 342 votes. The petitioner was declared duly elected.

Opponent No. 2 filed an election petition before the District Judge, who set aside the petitioner's election on the ground that the petitioner was not 21 years of age at the relevant times (the District Judge held the petitioner was born on September 2, 1931) and declared opponent No. 2 to be the duly elected councillor.

The present petition (before Chagla, C.J.) challenges the District Judge's jurisdiction to set aside the election and the consequential declaration of opponent No. 2 as elected.

Legal Issues Presented

Whether the District Judge, under s. 22 of the Bombay District Municipal Act, has jurisdiction to set aside an election on the ground that an elected councillor lacked the statutory age qualification (i.e., to decide a disqualification under s. 15).
Whether the District Judge's jurisdiction under s. 22 is confined to the specific matters in sub‑ss. (3)(a) (corrupt practice) and (3)(b) (scrutiny of votes) or whether it extends more broadly as provided by s. 22(2).
Whether a vacancy arising from an elected councillor's disqualification under s. 15 must be declared by the Collector (under s. 15(1B)/(3)), and, if so, whether the consequence is a by‑election under s. 18 rather than the District Judge declaring another candidate elected.
Whether, given the Municipal Election Roll was final and conclusive and the petitioner was enrolled, his right to stand and vote could properly be challenged by the District Judge after the election.

Arguments of the Parties

Petitioner's Arguments (Mr. Joshi)

The District Judge lacked jurisdiction to set aside the election on the ground of the candidate's age because the jurisdiction under s. 22 is confined to the two cases expressly mentioned in sub‑ss. (3)(a) and (3)(b) (corrupt practice and scrutiny of votes).

Municipality's Arguments (Mr. Gokhale)

The District Judge's jurisdiction under s. 22 is wider; the Judge's powers are governed by s. 22(2), not limited only to the matters in sub‑ss. (3)(a) and (3)(b).
It was contended that the jurisdictions of the District Judge and the Collector might be concurrent in the matter of disqualification and vacancy, i.e., the District Judge could hold a councillor disqualified and the Collector would then declare a vacancy.
Mr. Gokhale also asked the court not to interfere with the District Judge's decision, arguing it was based on factual findings that had not been seriously challenged.

Opponent No. 2's Position (as presented to the District Judge)

Opponent No. 2 alleged that the petitioner was not 21 years of age at the relevant time; the District Judge found the petitioner was born on September 2, 1931, and therefore below 21 and disqualified.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the statutory scheme set out in the Bombay District Municipal Act and the Bombay District Municipal Election Rules, 1950. It analyzed the relationship among provisions governing:

s. 22 (jurisdiction of the District Judge in election petitions), including sub‑ss. (1), (2), and (3)(a)/(3)(b);
the provisions setting qualifications for voters and candidates (s. 12), publication of the Election Roll (s. 13 and s. 13A), and the rule framework under the Election Rules, 1950 (notably the procedure under r. 10 to prepare the Municipal Election Roll); and
s. 15, which addresses qualification (including the age requirement), the effect of election in contravention of that provision (sub‑s. (1A)), and the Collector's power to decide whether a vacancy has occurred (sub‑s. (1B) and sub‑s. (3)).

Key analytical steps and conclusions reached by the court:

The court accepted the Municipality's broader textual reading of s. 22: the powers of the District Judge are set out in s. 22(2), and sub‑s. (3) imposes specific obligations in the two cases listed (corrupt practice and scrutiny). In those two instances the Judge must take the actions described; that does not mean his powers are limited only to those items.
However, the court distinguished between (a) matters arising in the conduct of an election (malpractices, corrupt practices, irregularities occurring in the course of the election), which are properly the subject of an election petition under s. 22, and (b) a statutory disqualification attaching to a person by reason of s. 15 once he is elected. The latter does not arise from irregularity in the conduct of the election but from the post‑election status of the elected councillor.
The Election Rules and s. 12/13/13A mean that if an interested party does not object to inclusion on the Municipal Election Roll, the Roll becomes final and conclusive; being on the Roll gave the petitioner the right to stand and to vote, and the election itself was conducted in accordance with the rules.
Because s. 15 deals with disqualification arising in respect of a person once elected and confers on the Collector the power to decide whether a vacancy has occurred under sub‑s. (1A)/(1B), the Collector — not the District Judge — is the competent authority to declare a seat vacant on the ground of age‑based disqualification.
The court rejected the Municipality's argument for concurrent jurisdiction between the District Judge and the Collector. The statutory scheme contemplates that the District Judge's jurisdiction in election petitions is to address matters affecting the integrity of the election process (confirming, amending, or setting aside results for irregularities), whereas the Collector alone determines whether a post‑election disqualification (and resulting vacancy) exists under s. 15.
The court emphasized the practical consequence of this division of authority: if the Collector determines the councillor is disqualified and declares a vacancy, s. 18 provides for a by‑election. By contrast, the District Judge's decision (in this case) to set aside the election and declare opponent No. 2 elected bypassed the statutory mechanism for declaring a vacancy and substituted a direct appointment, thus denying the electorate the right to a by‑election.
Because the District Judge's order effectively removed the electorate's right to have a by‑election under the statutory scheme, the higher court concluded the District Judge had no jurisdiction to make the declaration that he did and his order had to be set aside.

Holding and Implications

Holding: The higher court set aside the order of the District Judge and made the rule absolute. The District Judge's declaration that opponent No. 2 was duly elected was quashed.

Direct consequences for the parties (as provided in the opinion):

Rule made absolute (the District Judge's order is set aside).
Opponent No. 2 is ordered to pay the petitioner the costs of this petition and also the costs of the election petition before the District Judge.
No order as to costs against the Municipality.

Broader legal implications (as expressed in the opinion):

The opinion clarifies the allocation of functions under the statutory scheme: the District Judge's election‑petition jurisdiction is concerned with irregularities, malpractices, corrupt practices, and similar matters in the course of an election; a statutory disqualification under s. 15 (e.g., lack of the age qualification) is to be determined by the Collector, whose declaration of vacancy gives rise to a by‑election under s. 18.
Consequently, a District Judge cannot, by setting aside an election for lack of statutory qualification (as opposed to election irregularity), declare another candidate elected and thus bypass the statutory by‑election mechanism.

Rule absolute. (Costs directions as above.)

Rule absolute.

M.W.P

Show all summary ...

Chagla, C.J:—

A very interesting question arises on this petition as to the law of election applicable to the District Municipal elections. The petitioner is a Harijan and he and opponent No. 2 offered themselves as two candidates for one seat which was reserved for Harijans in Ward No. III of the Panvel Municipality for the triennial election of the Municipality of Panvel which was held on June 10, 1952. The votes were counted on June 12, 1952 and the petitioner secured 395 votes as against 342 secured by opponent No. 2. Accordingly the petitioner was declared duly elected. Opponent No. 2 then filed an election petition before the District Judge who set aside the election of the petitioner on the ground that the petitioner was not 21 years of age at all material times. The learned Judge held that the petitioner was born on the September 2, 1931 and hence he was below the age of 21 and therefore, he held the election of the petitioner void and declared opponent No. 2 to be the duly elected councillor.

Now, Mr. Joshi for the petitioner contends that the District Judge had no jurisdiction to entertain this election petition and to set aside the election. The jurisdiction of the District Judge to deal with election petitions arises under s. 22 of the Bombay District Municipal Act. Sub-s. (1) provides that if the validity of any election of a councillor is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may, at any time within ten days after the date of the declaration of the result of the election, apply to the District Judge of the District within which the election has been or should have been held, and then sub-s. (2) provides for the holding of an inquiry by a Judge and further provides that such Judge may, after such inquiry as he deems necessary, and subject to the provisions of sub-s. (3), pass an order confirming or amending the declared result of the election, or setting the election aside. Sub-s. (3)(a) gives the power to the Judge to set aside the election where a candidate has committed a corrupt practice for the purpose of the election and sub-s. (3)(b) gives the power to the Judge to hold a scrutiny of votes and after holding such scrutiny, to declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected. Sub-s. (4) defines what is a corrupt practice. Now, the contention of Mr. Joshi is that the jurisdiction of the District Judge on the election petitions is confined only to two cases; one, the case of corrupt practice dealt with in sub-s. (3)(a) of s. 22 and the other, the scrutiny of votes under sub-s. (3)(b) of s. 22, and Mr. Joshi says that it was not competent to the District Judge to set aside the election on the ground that a councillor is not qualified to be elected by reason of his age. Mr. Gokhale on behalf of the Municipality, on the other hand, contends that the jurisdiction of the District Judge is much wider than deciding cases specified in sub-ss. (3)(a) and (3)(b) of s. 22. In our opinion, Mr. Gokhale seems to be right because the powers of the Judge are really set out in sub-s. (2) of s. 22 and not in sub-ss. (3)(a) and (3)(b) of s. 22 and when sub-s. (2) limits his powers by providing that his powers are subject to the provisions of sub-s. (3), all that it means is that in the two cases referred to in sub-ss. (3)(a) and (3)(b) it is obligatory upon him to set aside the election in one case and to declare a particular candidate elected in the other. But apart from those two cases, the District Judge has the power to pass an order confirming or amending the declared result of the election, or setting the election aside. But it must be borne in mind that the power of the District Judge to pass any such order arises provided an election itself is challenged or disputed on the ground that something had happened in the course of the election which would justify the petition and which would entitle the Judge to pass the necessary order contemplated by s. 22(2). Now, in this particular case the second opponent's grievance before the District Judge was that the petitioner was not qualified to be a councillor by reason of his age. Turning to those provisions of the Act, s. 12 provides for qualifications for enrolment on the roll as voters and for candidates for election and one of the qualifications is that the candidate or the voter must have attained the age of 21 years on the first day of January of the year for which the Municipal Election Roll is being prepared and s. 13 deals with the publication of Election Roll and s. 13A provides that a person shall not be qualified to be elected a councillor unless he is enrolled in the Municipal Election Roll. When we turn to the Bombay District Municipal Election Rules, 1950, they provide an elaborate procedure for preparing the Municipal Election Roll and after the procedure is carried out under r. 10 a copy of the Election Roll signed by the Registration Officer shall be the Municipal Election Roll. Now, it was open to any interested party to challenge the right of the petitioner to be on the Municipal Election Roll. No objection was taken to his right to be on that Roll and under the rules the Municipal Election Roll became final and conclusive. On that happening the petitioner had a right to vote in the Municipal election and also to stand as a candidate. Having been elected at the election, s. 15 came into operation and that section provides that no person may be a councillor (and the material sub-cl. is) who is less than 21 years of age and sub-s. (1A) of s. 15 provides that 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 and sub-s. (1B) gives the power to the Collector to decide whether a vacancy has occurred under sub-s. (1A) or not. Then sub-s. (2) provides for a disqualification occurring during the term for which a person has been elected or appointed a councillor and sub-s. (3) provides that there would be a vacancy if a disqualification attaches to a councillor subsequent to the election and in that case the competent authority to decide whether there was a vacancy or not is the Collector. Now, in this particular case it is clear that the petitioner having been elected a councillor is disqualified by reason of s. 15 because he was elected in contravention of the provisions of sub-s. (1) and as he is disqualified the only competent authority which can declare that he is disqualified and declare a vacancy is the Collector. Mr. Gokhale's contention is that the jurisdictions of the District Judge and the Collector in this behalf are concurrent, that it is open to the District Judge to hold that the petitioner was disqualified and it would ultimately be for the Collector to declare that there is a vacancy. It is not possible to take that view because a vacancy in a seat can only take place provided there is an election or a nomination. The whole scheme of s. 15 is that after there is a proper election if it is found that a disqualification attaches to a particular councillor, the Collector is given the power to declare the seat of that councillor vacant. So far as the election is concerned, the election has been perfectly proper. It has been in accordance with the rules. The petitioner was qualified to stand as a candidate by reason of the fact that he was on the Municipal Election Roll. But for s. 15 his seat would never have become vacant and s. 15 does not deal with anything that happened in the course of the election. It deals with the disqualification which attaches to a councillor on his being elected. No jurisdiction is conferred upon the District Judge to decide whether any disqualification attaches to the councillor under s. 15. His jurisdiction is confined to deal with election petitions and an election petition by its very nature must be restricted to bringing before the Court either a mal-practice or a corrupt practice or an irregularity that takes place in the course of the election. There is one other important aspect of the matter to which attention might be drawn. Under s. 18 when a vacancy has occurred a by-election has to be held. The learned District Judge exercising his power under s. 22 has held the election of the petitioner to be bad and has declared the second opponent to be elected. By doing so he has taken away the right of the constituency to have a by-election and to elect such person as the constituency has confidence in. Therefore, the consideration of s. 18 makes it clear what the scheme of the Act with regard to election petitions and vacancies is an election takes place and an election can be challenged before the District Judge; he has a right to set aside the election; he has a right to confirm the election and he has a right to amend the result of the election. That is his exclusive jurisdiction. If there is no irregularity in the conduct of the election, the question arises whether a councillor properly elected is disqualified by reason of s. 15. This jurisdiction is conferred solely upon the Collector. If the Collector holds that the councillor is disqualified, he must declare the seat to be vacant and on the seat being declared vacant a by-election takes place under s. 18. Mr. Gokhale on behalf of the Municipality has asked us not to interfere with the decision of the District Judge as his finding is based on facts and his finding has not been seriously challenged. We cannot accede to that application because if we were to do so, we would uphold an order which declares the second opponent elected, whereas the law requires that there should be a by-election at which the voters should have a right to go to the election again and to vote for a person in whom they have confidence.

We must, therefore, set aside the order of the District Judge. The rule will be made absolute with costs. Opponent No. 2 to pay the petitioner the costs of this petition. He must also pay the costs of the election petition. No order as to costs against the Municipality.