SAMSHERKHAN MOHAMADKHAN Vs. JAFARALI AHMEDALLI SAIYAD

JUDGEMENT

(1.) THIS petition raises an interesting and Important question as to the proper construction of Section 22, Bombay District Municipal Act, 1901, which deals with the jurisdiction of the District judge in election petitions.

(2.) THE petitioner stood for the general election of ward No. 4 of the Borsad Municipality which was held on 10-7-1952. Respondent 1 was also a candidate. There were four seats in all, the fourtte seat being a reserved seat, and when the results were declared one Hiralal was found to have obtained 656, one Amritlal was found to have obtained 598 votes, and respondent 1 Jafarali was found to have obtained 433 votes. The petitioner was declared to have secured 428 votes. Therefore, Hiralal, Amritlal and Jafarali, respondent 1 were declared to be duly elected. The petitioner then presented an election petition before the District Judge of Kaira challenging the election on the ground that if a proper scrutiny was held of the votes cast in favour of the petitioner and respondent 1, the petitioner would be found to have been elected, He alleged that valid votes cast in favour of the petitioner were rejected and invalid votes cast in favour of respondent 1 were admitted. When the matter came before the learned District Judge he referred it to the Commissioner to recount the votes, and on a recount it was found that the petitioner had obtained 429 instead of 428 votes, and respondent 1 had obtained 434 instead of 433 votes. When the matter came back before the District Judge, the petitioner wanted the District Judge to scrutinize the voting paper and to permit him to establish his allegation that valid votes which were cast in his favour had been rejected and invalid votes in favour of respondent 1 had been admitted. On that the District Judge raised an issue which is to the following effect:

(3.) THE question that arises before us is whether the view taken by the learned District Judge is the right view, in view of the provisions of the Bombay District Municipal Act, 1901. The powers of the District Judge to hold an election inquiry are to be found in Sub-section (2) of Section 22 and the order that the learned Judge can pass on an election petition is confirming or amending the declared result of the election or setting the election aside. These powers are made subject to the provisions of Sub-section (3), and when we turn to Sub-section (3), it deals with two matters, one Under Clause (a) and the other Under Clause (b) Under Clause (a) the Judge, if satisfied that a candidate has committed any corrupt practice, he shall declare the candidate disqualified both for the purpose of that election and of such fresh election as may be held under Sub-section (2) and shall set aside the election of such candidate if he has been elected. Therefore, this case specifically deals with the case of corrupt practice and the power of the Judge is to set aside the election. When we turn to Clause (b), it deals with a different case altogether because it specifically provides that if in any case to which Clause (a) does not apply, the validity of the election is in dispute between two or more candidates, the Judge shall, after a scrutiny and computation of votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected. Therefore, it will be observed that whereas in the case of Sub-section (3) (a) the dispute may be either between a candidate and a candidate or between a voter and a candidate, the dispute under Sub-section 3 (b) is confined to a dispute between candidates 'inter se'. Whereas Under Clause (a) the power of the Judge is to set aside the election, in cases falling Under Clause (b) the only power that the Judge has is to amend the result of the election by' declaring a particular candidate to have been elected instead of another candidate who was elected by the returning officer. Thirdly, whereas Under Clause (a) in order to exercise his power the Judge must be satisfied that a corrupt practice has been committed, in the cases falling Under Clause (b) what the Judge has got to do is" to scrutinise and compute the votes recorded and come to a conclusion from that scrutiny and computation as to which candidate was duly elected.