HIFZURRAHEMAN ANSARSAHEB Vs. HASANSAHEB ABANSAHEB FULMANDI

JUDGEMENT

(1.) THESE applications must be allowed. The point at issue in all of them is the same, namely, the power of the Judge holding an election enquiry under Section 15 of the Bombay Municipal Boroughs Act, 1925, to unseat a candidate on the ground that the candidate was disqualified for election by reason of Section 12 of the Act. Whether the candidates in question were or were not qualified is a matter with which we are not concerned. The Judge has held, rightly or wrongly, that Section 12 disqualified them, and he accordingly set aside the election of these persons. In doing so he purports to act under Section 15 of the Act. The unseated candidates have come in revision to this Court on the ground that the Judge has gone beyond the powers given to him by the Legislature; and if it is a fact that he has done so, then his action, though the action of a persona designata, is subject to revision by this Court.

(2.) THE Assistant Judge who heard the cases was of the opinion that Section 15 empowered the Judge to interfere with an election in cases not in terms covered by the wording of Section 15; and in support of that view he refers to the decision of the Judicial Commissioner of Sind sitting alone in Dayaram v. Keshawji [1933] A.I.R. Sind 416, where a person disqualified by reason of Section 22 of the Bombay District Municipal Act, a section corresponding in many ways with Section 15 of the Bombay Municipal Boroughs Act, was unseated on the ground that he was not qualified for election. With respect, I am not altogether convinced by the reasoning in this case ; in particular I do not think that the argument derived from the wording of Sections 15 and 22 of the Municipal Act can apply to a case like the present under the Municipal Boroughs Act, since Sub-section (4) of Section 12 of the Boroughs Act finds no place in the corresponding section of the Municipal Act; but apart from the reasoning given in that case, the matter has been fully argued before me on the wording of the relevant sections, which are Section 15 and Section 12 of the Municipal Boroughs Act.

(3.) I think therefore that on the wording of the section itself a Judge ought not to be deemed to have powers other than those expressly specified in the section ; and the section has gone out of its way in Sub-section (3) to specify what his powers are, and prima facie the powers so specified are exhaustive. But quite apart from the wording of Section 15, there is another aspect of the case which does not seem to have been put before the learned Assistant Judge. Sub-section (4) of Section 12 says that if any person is elected or nominated as a councillor in contravention of the provisions of Section 12 (the section dialing with disqualifications), his seat subject to the provisions of Sub-section (5) will be deemed to be vacant; and Sub-section (5) says that in every case the authority competent to decide whether a vacancy has occurred under this section shall be the Collector. There is obviously a reference back to Sub-section (4), so that in every case the authority competent to decide, whether a person was disqualified before his election and that the election was therefore invalid so far as he is concerned is the Collector and no one else. Sub-section (5) goes on to say that until the Collector decides that a vacancy has arisen, the seat of the person elected or nominated shall not under Sub-section (4) be deemed to have become vacant. In other words the orders of the learned Assistant Judge in this case are nugatory until the Collector himself decides that the seat is vacant.