LOMESHPRASAD HARIPRASAD DESAI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) The election for councillors to the Baroda Borough Municipality was held on 172- 1954. The nominations for this election had to be filed by 19-1-1954. Opponent No. 2 filed his nomination on that day. The scrutiny of nomination papers was held on January 20. The petitioner objected to the nomination of opponent No. 2, but his objection was overruled. The election took place and he was declared elected to one of the seats for Ward No. 3. The results of the election were declared on 19-2-1954. The petitioner who is a voter and was also a candidate for election has filed his petition challenging the election of opponent No. 2 on the ground that he was disqualified as a councillor by reason of the fact that he was in the employ of the Municipality. The petitioner first approached the Collector and the Collector upheld the contention of the petitioner and set aside the election of opponent No. Government then intervened and set aside the order of the Collector, and it is really the order of Government that is being challenged in this petition by the petitioner.

(2.) Now, the facts on which it is alleged that opponent No. 2 was disqualified are that he was engaged as a pleader by the Baroda Borough Municipality in suit No. 7 of 1952 in the Court of the Civil Judge, S.D., Baroda. He was engaged along with another lawyer and opponent No. 2 filed his vakalatnama in that suit on 14-41952. On 18-1-1954 opponent No. 2 applied to the Municipality for relieving him as its lawyer and the Municipality passed a resolution on the same day accepting the resignation as its lawyer of opponent No. 2. On 27-1-1954 the Chief Officer of the Municipality intimated to the Court that they had relieved opponent No. 2 as a lawyer from 18-1-1954. The nomination paper of opponent No. 2 was filed on 191- 1954.

(3.) Now, there is a very interesting argument which has been advanced before us both by the Government Pleader and Mr. Sukthankar as. to the proper construction of Section 12, Bombay Municipal Boroughs Act. Mr. Sukthankar's contention is that the relevant date to determine whether a candidate suffers from any of the disqualifications laid down in Section 12 is the date of scrutiny, and if on that date the candidate is disqualified, then it is the duty of the returning officer to reject his nomination paper. On the other hand, the contention" of the Government Pleader is that the qualifications of a candidate are laid down in Section 11 (1), and if a candidate possesses those qualifications, then the returning officer must pass his nomination paper and he has a right to stand as a candidate. It is only if he is elected and he is found to sutler from any of the disqualifications mentioned in Section 12 that under Sub-section (4) of Section 12 his seat becomes vacant and under Sub-section (5) an authority is given to the Collector to decide whether a vacancy has occurred under that section or not. The Government Pleader says that as the results of the elections were declared on 19-2-1954, there can be no question that on that date opponent No. 2 was not in the employ of the Municipality, and, therefore, his election was not in contravention of any of the provisions of Section 12. The Government Pleader has further contended that really the material date is not even the declaration of the result, but the material date is under Section 12 (2) (a) the date of the first general meeting of the Municipality. It is on that date that the term of office of the councillor is deemed to commence. According to the Government Pleader, if on that date the councillor is not suffering from any of the disqualifications mentioned in Section 12, then he is entitled to continue as a councillor and any disqualification which he may have suffered from prior to that date cannot be taken into consideration. In our opinion, on the facts of this case it is unnecessary to decide which of these, two rival contentions is sound in law, because, in our opinion, even assuming that Mr. Sukthankar's contention is correct, opponent No, 2 was not in the employ of the Municipality on 19-1-1954, when his nomination paper was filed.