MUNICIPAL CORPORATION Vs. HASHU P. ADVANI

JUDGEMENT

(1.) THIS is an appeal against the judgment of Mr. Justice Kantawala against an order under Article 226 of the Constitution and the point involved is as to the interpretation of Rule 47 made by the Municipal Corporation of Bombay for the purposes of appointment to the Standing Committee and/or the Bombay Electric Supply and Transport Committee.

(2.) A vacancy in the Bombay Electric Supply and Transport Committee occurred by the resignation of one N.M. Kamble in or about April 1961. On September 25, 1961, the Corporation passed a resolution deciding to elect on a date to be fixed by the Mayor one member in place of Mr. Kamble. October 3, 1961, was fixed by the Mayor for this purpose. The Municipal Secretary issued a notice or memorandum on September 26, 1961, to all the Councillors intimating that October 3, 1961, was fixed for the election and invited nomination papers as per Rule 47 of the Corporation Procedure Rules. The rale required that nomination papers be deposited between 10 A.M. and 5 P.M. three clear days before the date of election. Respondent No. 1 and respondent No. 3 duly deposited their papers before 5 o'clock of September 29, 1961. The paper of respondent No. 4 was deposited at about 5 -30 P.M. on that day -clearly after 5 o'clock. The Secretary showed the names of all the three candidates remarking against the name of respondent No. 4 that his paper was received after 5 P.M. At the meeting on October 3, 1961, objections were taken to his candidature. The Mayor reserved his ruling in this connection which he gave on May 7, 1962. In the meantime on October 3, 1961, respondents Nos. 1 and 2 had already filed a petition on the Original Side of this Court challenging the acceptance of the nomination paper of respondent No. 4. After the Mayor gave his ruling and the election was made, the petition was amended challenging the election of respondent No. 4 as also the ruling of the Mayor. The Mayor ruled that as Rule 47 was framed when office hours were from 10 A.M. to 5 P.M. according to Bombay time, the intention must be that the paper was to be deposited with the Secretary during office hours and as the office hours have since changed to 10.30 A.M. to 5.30 P.M. (Standard time) and that of the Secretary's Office to 11 A.M. to 6 P.M., the paper was properly presented. The learned Judge disagreed with this ruling and held that the ruling was erroneous in law and that the election was bad. He, therefore, directed reelection of a member to that Committee out of the two candidates only remaining in the field. This order is being challenged before us.

(3.) ORIGINALLY Rule 47 was framed for appointment to the Standing Committee. After the B.E.S.T. Undertaking was taken over, by a resolution No. 523 dated July 24, 1947, it was decided to appoint a Committee of nine persons. In the same resolution it was provided that Rule 47 of the Corporation Procedure Rules as modified by Corporation's Resolution No. 7933 dated November 2, 1925, be adopted as far as the same may be applicable for election of members on the B.E.S.T. Committee. Rule 47 is at page 13 of the publication of Procedure Rules and Regulations and the relevant portion, is in these terms: (I) Candidates for appointment to the Standing Committee must be nominated by nomination paper, which must be deposited with the Municipal Secretary between 10 A.M. and 5 P.M. at least three clear days before the day of the meeting at which the appointment is to be made; and each, nomination paper must state the name of the candidate in full, and be subscribed by two councillors as proposer and seconder. No councillor shall propose or second the nomination of more candidates than the number of vacancies to be filled up. Any nomination paper subscribed in contravention of this Rule shall be invalid and be declared as such by the presiding authority. The question is whether the ruling of the Mayor is correct.