PUNDLIK VISHWANATH Vs. MAHADEO BINJRAJ

JUDGEMENT

(1.) IT is necessary to state a few facts for the proper appreciation of the point involved in this special application. The elections to the Corporation of the City of Nagpur were held in the year 1957. Under section 9 of the City of Nagpur Corporation Act, 1948, the Corporation consists of fifty-seven Councillors, among whom are included forty-five elected councillors and six appointed councillors as given in the said section. Out of the forty-five elected Councillors, one Councillor is to be elected by the special constituency of the Nagpur Chamber of Commerce. The election of a Councillor from the Nagpur Chamber of Commerce is regulated by rules promulgated under Notification No. 230-1956-M-XIII dated 15-1-1952. Respondent No. 1 Mahadeo Binjraj Modi was so declared to have been elected as Councillor to the Corporation in the election held in the year 1957. The petitioner Pundlik vishwanath Pandharipan. de filed an election petition challenging the election of the respondent No. 1! Mahadeo Binjraj Modi under Sec. 428 of the City of Nagpur Corporation Act, 1948. In the said election petition proceedings, a preliminary objection was raised on behalf of the respondent that the election petition filed by Pundlik Vishwanath Pandhari-pande was not competent for the reason that the said Pundlik Vishwanath was not an elector and was not enrolled as an elector in the electoral roll prepared for election from the Nagpur Chamber of: Commerce constituency. This objection prevailed with the learned Additional District Judge, who was dealing with the election petition. The learned Additional District Judge accordingly dismissed the election petition on the ground that Pundiik Vishwanath could not file such election petition against the respondent No. 1 for the reason that he was not enrolled in the municipal election roll of the special constituency from which the Respondent No. 1 was elected. The instant special civil application has been directed against the order passed by the learned Additional District Judge.

(2.) MR. A. S. Bobde, learned Counsel appearing for the petitioner, contends that the order challenged is patently erroneous in law for the reason that the learned Lower Court erred in interpreting section 428 of the City of Nagpur Corporation Act, 1948, and accordingly dismissing the election petition. It will be convenient to reproduce section 428. The section provides : ' 428 (1) If the qualification of any person declared to be elected for being a Councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Chief Executive Officer of a nomination or of the improper reception or refusal of a vote, or for any other cause, "any person enrolled in the municipal election roll may,'' at any time within fifteen days from the date on which the election of a Councillor is notified under Sec. 16, apply to the District Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected, had contested the election from the same ward or constituency, as the case may be. " (The remaining portion of the section is not reproduced, the same being not relevant for the purpose of this case. The underlining (here in quotation marks-Ed) of the portion above is ours ).

(3.) MR. Bobde contends that the expression ' any person enrolled in the municipal election roll"' includes the petitioner, because, according to him, he is enrolled as an elector in a municipal election roll.