A C RAWAL Vs. O P HAJARNIS

JUDGEMENT

(1.) The petitioner is a citizen of Bhor which is the Taluka place in Poona District. In the 1974 elections held for electing Councillors and the President of the Bhor Municipal Council, the petitioner was a candidate alongwith respondents Nos. 2 to 5. All the nomination papers appear to have been accepted and the candidates went for election. The last date for nomination was 21st October, 1974 and 22nd October, 1974 was the date of scrutiny. Voting took place on 17th November, 1974 and the votes were counted on 18th November, 1974. The petitioner polled a highest number of votes being 2167 and was declared elected on the same day, viz. 18th November, 1974 as the President of the Bhor Municipal Council.

(2.) The present respondent No. 1 challenged the election of the petitioner by filing an Election Petition in the District Court, Pune. The respondent No. 1 was a voter from ward No. 10. His main ground was that on the date of nomination as also on the date of the election, the petitioner was disqualified from being elected as a member to the Municipal Council. The election of respondent No. 1 on facts is not being disputed. It is alleged that the petitioner who was a merchant and a grocer committed an offence under section 16 of the Prevention of Food Adulteration Act on 17th December, 1972. He purchased certain amount of Dalchini from a merchant in Pune and sold it in Bhor. The sample taken from his was found adulterated and he was convicted by the Court of Judicial Magistrate, First Class, Bhor on 26th December, 1973. The sentence imposed upon the petitioner was imprisonment till the rising of the Court and to pay a fine of Rs. 200/- or in default of payment of fine to suffer rigorous imprisonment for one month.

(3.) On the basis of the admitted allegations, the respondent No. 1 pleaded that under section 16(1)(a) of the Maharashtra Municipalities Act, 1965, the petitioner was not eligible, at all, for being either nominated or elected as a President of the Municipal Council. The qualification for being elected as a President by the direct votes of the entire town is the same as is applicable to the Councillor. That qualification has been laid down by section 16 of the Act. Under that section, a person can be chosen as a candidate or elected as a Councillor, if he fulfils two conditions. The first condition is that his name must appear in the roll of voters and the second is that he shall not be disqualified for any of the reasons mentioned in section 16 of the Act. If these two conditions are satisfied, a person has a right to be nominated as a candidate and subsequently elected as a Councillor. Under Clause (a) of sub-section (1) of section 16 of the Act, no person shall be qualified to become a Councillor whether by election, co-option or nomination, who has been convicted by a Court in India of any offence the maximum punishment for which (with or without any other punishment) is imprisonment for a term of two years or more and sentenced to imprisonment for any term unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release. The respondent No. 1, therefore, pleaded before the District Judge that the petitioner was convicted on 26th December, 1973 in respect of an offence which was punishable with imprisonment for two years or more and was disqualified for being nominated and elected as a member of the Council until 5 years had elaspsed from his date of release which was also the date of judgment viz. 26th December, 1975. Since the disqualification continued upto 25th December, 1978, the petitioners nomination ought not to have been accepted at all. This plea succeeded before the learned Joint Judge, inspite of the fact that under the powers vested in the Government under Clause (a) of sub-section (1) of section 16 of the Act, a notification was issued on 20th November, 1975. It was pointed out to the learned Joint Judge who heard the petition that the State Government had the power to lay down a different period of disqualification under that provision in any particular case. By exercising those powers, the Government issued a notification on 20th November, 1975 by declaring that the disqualification incurred by the present petitioner Amritlal Chunilal Rawal, resident of Bhor, Tahsil Bhor, District Pune, should remain in force for a period of six months only from his release on 20th December, 1973. Being aggrieved by that Order setting aside the election of the petitioner, he has filed this writ petition.