BALLABH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) I agree with the construction that has been put on Sections 15 (1) and 22 (2) of the C. P. and Berar Municipalities Act, 1922, by my learned brother Shrivastava, J. I would only add a few observations on the decisions in Bikulal v. State of M.P., ILR (1953) Nag 245 : (AIR 1953 Nag 125) and K. C. Shanna v. Ramgulam Choubey, ILR (1954) Nag 571 : (AIR 1954 Nag 255). Bhikulal's Case ILR (1953) Nag 245 : (AIR 1953 Nag 125) dealt with the question of the president of a municipal committee incurring a disqualification under Section 15 (1) read with Section 22 (2) because of the vice-president of the municipal committee purchasing cloth from a shop belonging to the president It was held on the basis of Tranton v. Astor (1917) 33 TLR 383, that such a purchase transaction did not amount to a contract entailing a disqualification as contemplated by Section 15 (1) of the Act. In the other case the question that was considered was whether a person was eligible lor election as president of a municipal committee because he held a lease of certain municipal land and also entered into a contract of lease with the municipal committee in respect of certain other land. It was ruled in Sharma's Case, ILR (1954) Nag 571 : (AIR 1954 Nag 255) that Section 15 (1) contemplates a continuing, lasting or executory contract and not a contract of a casual or transient nature- In this case also reliance was placed on (1917) 33 TLR 383 (Supra) and reference was made to Royse v. Birley, (1869) 4 CP 296.

(2.) With all due deference to the learned Judges deciding these two cases I must say that in those cases the very material difference between the language of Section 1 of the House or Commons (Disqualification) Act, 1782, considered in the English cases and the language of Section 15 (1) of the C.P. and Berar Municipalities Act and the significance and effect of the expression "while owning such share or interest" used in Section 15 (1) and of the words "becomes subject to any of the disqualifications in Section 15 shall forthwith cease to be president, vice-president or member" occurring in Section 22 (2) of the Act have been overlooked. Section 1 of the House of Commons (Disqualification) Act, 1782, plainly meant that the disqualification attached to the contractor only if he is elected, takes his seat and votes whilst the contract is being executed by him. The true character of that provision was pointed out by Montague Smith, J. in (1869) 4 CP 296 at pp. 316-317. He said: "I decide this case, so far as regards that contract, upon the ground that at the time of the election the contract was no longer executory, and nothing remained to be done upon it but for the Government to pay the price of the goods. Looking at this act of Parliament and the general tenor of it, I certainly am strongly of opinion that the legislature intended it to apply only to contracts of a continuing nature, such as contracts for the building of works, and contracts for a recurring supply of goods, though I do not say that a contract for a single supply of goods is not within the terms which are used. But to my mind it very plainly appears that the statute did not mean to disqualify a contractor unless the contract was in an executory state on his part, that is to say, that something remained to be done by him; and that in no other way can the act of Parliament be properly construed. The words 'undertake and execute', in Section 1, clearly apply only while the contract is executory; and, though the other words 'hold' and 'enjoy' are more general, it seems to me they refer to holding a contract or enjoying a contract which is executory, that is, a contract under which something has to be done by the contractor, either one act or recurring acts, and that he is only disqualified 'during the time that he shall execute, hold, or enjoy' any such contract. The, words 'hold and enjoy' may have been inserted to meet cases where a contractor holding a contract did not himself execute it. The words 'during the time' clearly shew that parliament wag contemplating a contract which would endure for some period of time, and that during that period of time something should remain to be done on the part of the contractor under that contract. The 4th and 5th clauses also point to contracts having some duration in point of time for the performance of that which the contractor was to do under them. I repeat that I do not say that, if there is a contract for a single supply of goods, that contract is not within the act so long as it remains to be performed on the part of the contractor, he having to supply the goods, and the Government having a right to find fault with and reject them". The language of Section 15 (1) is quite different. The words "has directly or indirectly any share Or interest" standing by themselves apply both to a contract which has been performed and also to a contract which is executory. The relevant disqualification mentioned in Section 15 (1) is intended to restrain a president, vice-president or a member from placing himself in a position in which there may be a conflict between his self-interest and duty to the municipal committee. A person who has directly or indirectly any share or interest in any contract with, by or on behalf of the committee, becomes disqualified; on the general principle of conflict between duty and interest. But in order that such an interest should make the person ineligible for election, it is necessary that the interest must subsist at the time of election, selection or nomination as a member of the committee. This requirement flows from the words "while owning such share or interest" used in Section 15 (1). Those words show that for the purposes of ineligibility for election what is contemplated is a contract which is enduring at the time of the election or which remains to be performed at that time. It is because of the use of these words that it becomes necessary to hold that for the purposes of ineligibility for an election Section 15 (1) contemplates a continuing or executory contract and not a contract of a casual or transient nature which has already been executed at the time of the election. In the case of any president, vice-president) or a member becoming subject to this disqualification after his entry into office, there in no question of "owning such share or interest" at a particular point of time. If a person has directly or indirectly any share or interest in any, contract whether executory or executed, he owns such share or interest for some time at least. If he owns such interest or share, he incurs the disqualification and as soon as he incurs the disqualification his office becomes vacant forthwith. This is the effect of the provision in Section 22 (2) that the president, vice president or member of the committee, when he becomes subject to the disqualification, shall forthwith cease to be president, vice-president or member and his office shall become vacant. Thus the moment the disqualification is incurred, the continuity in the holding of the office becomes impossible. For the purposes of Section 22 (2) it is not necessary that the contract should be of some duration in point of time. All that is necessary is that the disqualification should be incurred after the person's entry into office. Section 22 (2) says nothing about the disqualification continuing only during the time that the contract is in existence and does not require that "office shall become vacant" when it is declared to be so. No doubt, if any dispute or doubt arises as to whether a vacancy has occurred under Section 22(2) it has to be decided by the State Government, but this does not mean that the vacancy in the office Occurs when the Government takes a decision. In the context of Section 22(2) all that it means is that in the event of a dispute or doubt if the Government decides that the person concerned has incurred the disqualification, then the vacancy occurs from the moment the disqualification is incurred. There are no doubt some English decisions in which it has been held that a councillor qualified at the date of his election who subsequently became interested in a number of small contracts with the council incurred the disqualification from time to time but that it ceased as soon as his interest in the particular contract terminated and that not having been formally removed from office he was entitled to subsequently act as a councillor: (see Lewis v. Carr, (1876) 1 Ex D 484 and Cox v. Truscott, (1905) 21 TLR 319). But these decisions have been criticised in later cases notably in an Irish case O'Carroll v. Hastings, (1905) 2 Ir R. 590, where it was said, "This humorous alternation of recurring disqualification and qualification, if possible under Article 12, would enable the mischief against which the article was directed to be effected with impunity".

(3.) Here, the petitioner incurred the disqualification after he became a member but before his election as vice-president. That being so, the order of the State Government of 10th October 1959 cannot be sustained in so far as it relates to the petitioner's removal from the office of the vice-president. Shrivastava, J.