DESAIBHAI KASHIBHAI DESAI Vs. S.M. DUDANI

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, one Desaibhai Kashibhai Desai, an elected councillor of the Nadiad Borough Municipality, challenges the election of Chimanbhai Kashibhai Patel, opponent No. 3 hereto, to the office of the President of the Municipality held on March 23, 1959.

(2.) THE facts giving rise to this petition in brief are, Chimanbhai was a duly elected President during the year 1958 -59. His term of office expired on March 9, 1959. Section 19A read together with Section 23(2) of the Bombay Municipal Boroughs Act, 1925, (hereinafter called the Act) cast a duty on the Collector to call a meeting for the election of the President. The Collector, Kaira District, (opponent No. 1), accordingly called a meeting of the councilors of the Municipality for March 23, 1959, for electing a President of the Nadiad Borough Municipality, and he further directed the District Deputy Collector, opponent No. 2 hereto, to preside over the meeting. From among the 34 councillors 32 councillors attended the meeting. The meeting first unanimously passed a resolution that a new President should be elected for a period of one year. Thereafter, for the office of the President three nominations were made. Chimanbhai Kashibhai Patel's name was proposed by Babubhai Bhikhabhai Desai and seconded by Haribhai Govindbhai Patel. Manmohandas Bhagwan -das Desai was proposed by Balubhai Harishanker Bhatt and seconded by Desaibhai Kashibai Desai. Balubhai Harishanker Bhatt's name was proposed by Kanubhai Kashibhai Patel and seconded by Mangubhai. It appears that opponent No. 2 decided to take the poll in two rounds. He first asked the house to elect one out of the two nominees, Manmohandas Bhagwandas Desai and Balubhai Harishanker Bhatt. At this stage, Balubhai declared in the meeting that he wanted to withdraw from the election. His proposer Kanubhai, however, did not agree to the withdrawal of Balubhai. The presiding officer, therefore, did not allow Balubhai to withdraw from the contest. Poll was thereafter taken, and each of the candidates, namely, Manmohandas and Balubhai, secured 16 votes each. Lots were drawn, with the result that Balubhai was declared elected. According to the procedure initially laid down by the presiding officer, there should have been a voting as between the remaining two candidates, namely, Chimanbhai and Balubhai, the successful candidate in the first round. But before poll for the second round was taken, the proposer of Balubhai, namely, Kanubhai, with the consent of the seconder, informed the presiding officer that he withdrew the name of Balubhai from the contest. It appears that there was opposition by some of the members to the proposed withdrawal of the name of Balubhai. The presiding officer, however, ruled that the proposer having withdrawn the name of Balubhai, only one proposal remained before the House, namely, the proposal of the name of Chimanbhai for the election of presidentship and in this view of the matter he declared that Chimanbhai Kashibhai Patel was duly elected President of the Nadiad Municipal Committee. This election is challenged before us. The petitioner has claimed the following reliefs : - (a) That the Hon'ble Court be pleased to issue a Writ of quo warranto or a writ, order or direction of like nature against the 3rd respondent herein and call for the record and proceedings of the said election and quash the same and set aside the said election; (b) That the Hon'ble Court be pleased to issue a writ of prohibition or a writ, order or direction of like nature and restrain the 3rd respondent herein from acting as the President until such time that he may be validly elected if at all as a President in another valid election; (c) That the Hon'ble Court be pleased to command or direct by a writ of Mandamus or a writ, order or direction of like nature, the 1st respondent to hold with the utmost expedition possible another election for electing the President of the 4th respondent in accordance with law and procedure and in accordance with the provisions of Rule 43 of the Rules of the Nadiad Borough Municipality.

(3.) THE first question to be considered is, whether Rule 43 would govern the case. It reads as follows: - 43. Voting for appointment of Committees or officers -Voting for appointment of committees and for officers by ballot shall be conducted as follows: - (1) Printed or typewritten slips of papers bearing the names of the candidates shall be circulated among the Councillors present at the meeting fixed for the selection and the voting shall be by putting a cross against the name of the candidate for whom they want to vote without signing the slips. The first ballot shall be kept open, for 15 minutes from the commencement thereof, the votes for all the candidates shall be counted by the presiding authority with the assistance of the Chief Officer or the Secretary. (2) On the announcement of the result of the first ballot, the name of the nominee who obtains the lowest number of votes shall be struck off and a fresh ballot shall be taken from the rest of the original nominees. The nominee with the lowest number of votes shall then be struck off, and this process shall be repeated until there remain only as many nominees as places, when the nominees thus remaining shall be declared duly elected. According to the learned Government Pleader and Mr. Desai, the procedure prescribed in Rule 43 has application only when the question of appointment of committees and of officers arises. According to them, the word 'officers' has to be understood and given the meaning as is given to it in the interpretation clause, Rule 2(5) of the rules, which defines that 'officer' means any Municipal employee, whose salary, or in the case of time scale of pay, the maximum salary, exceeds Rs. 50 per mensem. On the other hand, it is the contention of Mr. Kotwal that the word 'officer' has to be understood in its wider sense. It includes not only the servants of the Municipality, hut also other persons occupying the various posts and offices in the Municipality. 'We find it difficult to accept the contention raised on behalf of opponents Nos. 2 and 55 and give the word 'officer' a very restricted meaning as is contended for by them. It is true that in the definition in Rule 2(5) such a restricted meaning is given to the word 'officer'. But then it has to be kept in mind that that meaning cannot be given when there is something repugnant in the subject or the context. It would be seen that even in the rules themselves the word 'officer' is used in a sense other than the servant of the Municipality. If we turn to Rule 2(3)(i) we find that the President is a Controlling officer of the auditors. It cannot be disputed that the President is not a servant of the Municipality drawing any pay from the Municipal funds. If we refer to the Shorter Oxford English Dictionary, we find that there are various shades of meaning of the word 'officer'. In one sense, it means 'one who holds a public, civil or ecclesiastical office; a servant or minister of the king; a functionary authoritatively appointed or elected to exercise some public, municipal or corporate function.' In another sense, it means 'a person holding the office of president, treasurer, secretary etc. of a society or institution;' or, in other words 'an office -bearer'. Turning to the provisions of the Act, we find that Section 18 provides that a person is elected to the office of the president. Section 19 provides for the term of office of President. Section 20 provides for the resignation from the office of the President. Section 21 provides for the removal of a person from the office of the President. Section 23 -A provides for handing over of the charge by the person holding the office of the President. It is, therefore, clear that the President holds office, or, in other words, is an office -bearer of a municipality. The President, therefore, can be termed as an officer within the wider meaning of the word 'officer' as defined in the Oxford Dictionary. Turning now to the provisions of Rule 43 itself, we find a certain procedure prescribed for the purpose of voting, and a person successful therein is termed as a duly elected person, and persons contesting are termed as nominees. These expressions used in the rule indicate that the procedure prescribed in the rule relates to holding an election. It is not in dispute that a person appointed in the post of the President has to be elected by the members of the municipality. It is also worth noting that this rule provides for the appointment of committees, and turning to the provisions of the statute, namely, Sections 37 and 38, it is clear that the various committees are to be elected by the members of the municipality. On the other hand, it cannot be said that the servants of the municipality are appointed by holding an election. It also cannot be said that persons, who apply for service, are the nominees of any of the members of the municipality. For reasons stated above, in our opinion, the word 'officer' occurring in Rule 43 of the rules has to be understood in a wider sense, and not in the narrower sense as defined in Rule 2(5), To hold otherwise, we would have to assume that no provision exists either in the Act or in the rules regarding the procedure to be followed for electing a president. We find it difficult to make such an assumption.