BAROT JAGANATH MAGANLAL Vs. PARSHOTTAMDAS NATHUBHAI BRAHMBHATT

JUDGEMENT

(1.) The dispute in this petition concerns the validity of the election from Ward No. 7 to the Mehsana Borough Municipality. The town of Mehsana is a Municipal Borough within the meaning of the relevant provisions of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act). The general municipal election to the Mehsana Borough Municipality was due to be held in September 1965 and the Collector of Mehsana in exercise of the power conferred upon him under Rule 7(1) of the Gujarat Municipalities Election Rules 1964 (hereinafter referred to as the Rules) issued a notice dated 18th June 1965 fixing the various stages of the election. The general election was fixed on 12th September 1965 and the dates for the nomination of the candidates were 18 and 19th August 1965 the date for scrutiny of the nomination papers was 21st August 1965 the last date for withdrawal of candidature was 23 August 1965 and the date for publishing the list of validly nominated candidates was 2nd September 1965. There were two general seats and one seat reserved for women in Ward No. 7 and the petitioner and respondents Nos. 1 and 4 to 7 were the candidates for the two general seats while respondents Nos. 8 9 and 10 were the candidates for the reserved seat for women. The first respondents name was included in the list of voters for Ward No. 7 at S. No 41 and though the age of the first respondent was 32 years it was shown as 59 years in the entry in the list of voters. Two nomination papers were therefore filed nominating the first respondent as a candidate from Ward No. 7 one showing the correct age namely 32 years and the other showing the age as 59 years in consonance with the entry in the voters list. The former nomination paper was given Serial No. 102 while the latter was given Serial No. 103. On 21st August 1965 being the date fixed for scrutiny of the nomination papers both the nomination papers were found to be in order and were accepted by the Returning Officer. Now according to the first respondent as he was nominated as a candidate from Ward No. 7 under two nomination papers and both of them were accepted by the Returning Officer he was advised by the Returning Officer to withdraw one of the two nomination papers in order to avoid unnecessary complication by duplication and therefore he made an application dated 22nd August 1965 to the Returning Officer stating that two nomination papers had been filed nominating him as a candidate for the election and therefore out of the two nomination papers he may be permitted to withdraw the nomination paper bearing Serial No. 103 in which his age was shown as 59 years. The application was presented by the first respondent personally to the Returning Officer and at that time also the first respondent made a statement before the Returning Officer that he was withdrawing the nomination paper bearing Serial No. 103 and an endorsement recording that statement was made by the Returning Officer at the foot of the application. Though the application was merely for withdrawal of one out of the two nomination papers and the petitioner did not seek by the application to withdraw his candidature for the election the Returning Officer treated the application as an application for withdrawal of the candidature and made an order on the application sanctioning the withdrawal of the candidature of the first respondent from the election. The Returning Officer also purporting to act under Rule 12(3) of the Rules published a notice on the same day declaring that the first respondent had withdrawn his candidature for the election from Ward No. 7. Thereafter on the next day i.e. 23rd August 1965 another notice under Rule 12(3) was issued by the Returning Officer declaring the names of 47 other candidates who had withdrawn their candidature for the election from other Wards. The list of validly nominated candidates was then published by the Returning Officer on 2nd September 1965 under Rule 14 and this list did not contain the name of the first respondent and the only names mentioned in the list were those of respondents Nos. 4 to 10 as validly nominated candidates for Ward No. 7. The first respondent thereupon addressed a letter dated 4th September 1965 requesting the Returning Officer to give reasons as to why the first respondent was not shown as a validly nominated candidate in the list. The reply which the Returning Officer gave by his letter dated 5 September 1965 was that since both the nomination papers of the first respondent were accepted they had merged into one nomination by reason of Rule 10(5) and the withdrawal of one nomination paper by the first respondent therefore operated as withdrawal of the nomination itself under Rule 12 and the petitioner was accordingly not entitled to have his name included in the list of validly nominated candidates published under Rule 14. The first respondent being aggrieved by this decision of the Returning Officer preferred a petition being Special Civil Application No. 956 of 1965 in this Court on 6th September 1965-challenging the validity of the decision and immediately after presenting the petition the first respondent applied for an interim injunction restraining the Returning Officer from proceeding to hold the election. On the application of the first respondent an interim injunction was issued by this Court restraining the Returning Officer from holding the election from Ward No. 7 and the result was that the election from Ward No. 7 could not be held on the appointed day namely 12 September 1965. The petition was resisted on behalf of the petitioner and respondents Nos. 4 to 10 on various grounds of which one was in the nature of a preliminary objection and that was that the Returning Officer whose action was challenged in the petition was not a Court or Tribunal within the meaning of Article 227 and the petition filed under Article 227 was therefore not maintainable. This preliminary objection found favour with Vakil J. who heard the petition and by an order dated 3rd October 1965 the learned Judge dismissed the petition on the view that the Returning Officer was neither a Court nor a Tribunal within the meaning of Article 227 and the petition could not therefore lie to challenge the decision of the Returning Officer. (See Purshottam v. D. V. Patel VII G.L.R. 443). After the dismissal of the petition the Collector fixed 14th November 1965 as the date for holding the election from Ward No. 7 and at the election the petitioner and respondent No. 4 were elected to fill the two general seats and respondent No. 10 was elected to fill the seat reserved for women. The first respondent thereupon filed Miscellaneous Application No. 38 of 1965 in the Court of the Assistant Judge Mehsana on 30 November 1965 for setting aside the election from Ward No. 7 inter alia on the ground that the first respondent was wrongly kept out of the election by treating his candidature as withdrawn when in fact there was no withdrawal of candidature by him and excluding his name from the list of validly nominated candidates published under Rule 14. There were also other grounds on which the election of the petitioner and respondents Nos. 4 and 10 was challenged but those grounds are not material for the purpose of the present petition and it is not therefore necessary to refer to them. The application was made under sec. 14 of the Act and the petitioner and respondents Nos. 4 to 10 were joined as parties to the application. The learned Assistant Judge who heard the application came to the conclusion that the Returning Officer was wrong in treating the application of the first respondent for withdrawal of the nomination paper bearing No. 103 as an application for withdrawal of the candidature and holding on the strength of that application that the first respondent had withdrawn his candidature for the election from Ward No. 7 and on that basis excluding the name of the first respondent from the list of validly nominated candidates published under Rule 14. The learned Assistant Judge took the view that there was in the circumstances non-compliance with Rule 14 and this non-compliance kept the first respondent out of the election materially affecting the result of the election in so far as it concerned the petitioner and respondents Nos. 4 and 10. The learned Assistant Judge in this view of the matter set aside the election of the petitioner and respondents Nos. 4 and 10 from Ward No. 7 and directed the Returning Officer to include the name of the first respondent as a validly nominated candidate in the list prepared under Rule 14 and there after to hold the election from Ward No. 7 according to rules. This order of the learned Assistant Judge is now challenged on the present petition.

(2.) One of the contentions urged by Mr. I. M. Nanavati learned advocate appearing on behalf of the petitioner at the hearing of the petition was that even if there was non-compliance with Rule 14 as held by the learned Assistant Judge and such non-compliance materially affected the result of the election of the petitioner and respondent No. 4 justifying the setting aside of their election the election of respondent No. 10 was not materially affected by such non-compliance since respondent No. 10 was a candidate for the seat reserved - for women while the first respondent who was excluded was a candidate for the general seat and the election of respondent No. 10 was therefore in any case not liable to be set aside. To this contention a preliminary objection was raised by Mr. P. D. Desai learned advocate appearing on behalf of the first respondent and that preliminary objection was that this contention was not taken in the petition and in any event it was respondent No. 10 alone and not the petitioner who was competent to raise this contention. The preliminary objection was well founded and realising its force Mr. I. M. Nanavati on behalf of the petitioner applied for leave to amend the petition by transposing respondent No. 10 as petitioner No. 2 and re-numbering the original petitioner as petitioner No. 1 and introducing paragraph 15A in the petition in terms of the draft amendment handed in by him. The draft amendment sought to embody the contention that even if there was non-compliance with Rule 14 such non-compliance did not materially affect the result of the election of respondent No. 10 since she was a candidate for the seat reserved for women and the election of respondent No. 10 was therefore in any case not liable to be set aside. The amendment was resisted by Mr. P. D. Desai on behalf of the first respondent but since the contention which was sought to be raised by the amendment was a pure contention of law I allowed the amendment with the result that the original petitioner became petitioner No. 1 and the original respondent No. 10 became petitioner No. 2. I shall however for the sake of convenience continue to refer to petitioner No. 1 as petitioner and petitioner No. 2 as respondent No. 10.

(3.) The first contention urged on behalf of the petitioner was that sec. 14 contemplates a separate application for challenging the election of each councilor and a joint application challenging the election of three councilors namely petitioner and respondents Nos. 4 and 10 from Ward No. 7 was therefore not competent under the section and the application made by the first respondent was accordingly liable to be dismissed. This contention is obviously unfounded and no elaborate argument is necessary in order to repel it. The short answer to this contention is provided by sec. 13 of the Bombay General Clauses Act 1904 which declares that in all Bombay Acts unless there is anything repugnant in the subject or context words in the singular shall include the plural and vice versa. Sec. 14 sub-sec. (1) says that if the validity of any election of a councilor is brought in question by any person qualified to vote at the election to which such question refers or by any candidate for such election such person may at any time within fifteen days after the date of the declaration of the result of the elections apply to the District Court of the district within which the election has been or should have been held for the determination of such question. The words a councilor in the section must in view of sec. 13 of the Bombay General Clauses Act 1904 include councilors and it must therefore follow as a logical corollary that if any person qualified to vote at an election desires to raise a question concerning the validity of the election of more councilors than one he can make one single application to the District Court for the determination of such question under sec. 14 sub-sec. (1). Moreover the procedure prescribed by the Civil Procedure Code is clearly applicable to the inquiry contemplated by sec. 14. The applicability of the procedure prescribed by the Code of Civil Procedure would seem to follow by necessary implication from sec. 14 sub-sec. (4) and as a matter of fact while dealing with the corresponding sec. 22 of the Bombay District Municipal Act 1901 which was almost in identical terms with sec. 14 of the present Act a Division Bench of the Bombay High Court in Hambirrao Bhaurao Patil v. Balisha Ganpat Kamble 62 Bom. L. R. 749 held relying on sub-sec. (2B) of Sec. 22 which was in identical terms as sub-sec. (4) of sec. 14 that the inquiry contemplated in sec. 22 is a judicial inquiry the authority holding that inquiry is a judicial authority and the procedure prescribed by the Code of Civil Procedure in so far as it may apply is applicable to that inquiry. The application under sec. 14 sub-sec. (1) would therefore be governed by the provisions of the Code of Civil Procedure. Now Order 1 Rule 3 of the Code of Civil Procedure provides that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly severally or in the alternative where if separate suits were brought against such person any common question of law or fact would arise. This rule would clearly on the facts of the present case justify the filing of a single application for challenging the election of the petitioner and respondents Nos. 4 and 10 since the right to relief against them arises out of the same act or transaction and if separate applications were filed common questions of law and fact would arise. The first contention urged on behalf of the petitioner must therefore be rejected.