HIFZURRAHEMAN ANSARSAHEB Vs. HASANSAHEB ABANSAHEB FULMANDI

JUDGEMENT

(1.) These applications must be allowed. The point at issue in all of them is the same, namely, the power of the Judge holding an election enquiry under Section 15 of the Bombay Municipal Boroughs Act, 1925, to unseat a candidate on the ground that the candidate was disqualified for election by reason of Section 12 of the Act. Whether the candidates in question were or were not qualified is a matter with which we are not concerned. The Judge has held, rightly or wrongly, that Section 12 disqualified them, and he accordingly set aside the election of these persons. In doing so he purports to act under Section 15 of the Act. The unseated candidates have come in revision to this Court on the ground that the Judge has gone beyond the powers given to him by the Legislature; and if it is a fact that he has done so, then his action, though the action of a persona designata, is subject to revision by this Court.

(2.) The Assistant Judge who heard the cases was of the opinion that Section 15 empowered the Judge to interfere with an election in cases not in terms covered by the wording of Section 15; and in support of that view he refers to the decision of the Judicial Commissioner of Sind sitting alone in Dayaram V/s. Keshawji [1933] A.I.R. Sind 416, where a person disqualified by reason of Section 22 of the Bombay District Municipal Act, a section corresponding in many ways with Sec. 15 of the Bombay Municipal Boroughs Act, was unseated on the ground that he was not qualified for election. With respect, I am not altogether convinced by the reasoning in this case ; in particular I do not think that the argument derived from the wording of Secs.15 and 22 of the Municipal Act can apply to a case like the present under the Municipal Boroughs Act, since Sub-section (4) of Section 12 of the Boroughs Act finds no place in the corresponding section of the Municipal Act; but apart from the reasoning given in that case, the matter has been fully argued before me on the wording of the relevant sections, which are Section 15 and Section 12 of the Municipal Boroughs Act.

(3.) The scheme of Section 15 is this. By Sub-section (I) any one qualified to vote can question the validity of an election by going before the District Judge within ten days and asking that the validity of the election shall be decided. Thereupon the Judge holds an enquiry and " subject to the provisions of Sub-section (3)" passes an order confirming or amending the declared result of the election or setting the election aside. The words " subject to the provisions of Sub-section (3)" are important. Though the exact meaning of the words " subject to " is not perhaps obvious, it is clear that in passing orders confirming or amending the result or setting the election aside the Judge must not lose sight of the provisions of Sub-section (3). Sub-section (3) is in two parts; it provides that a candidate guilty of corrupt practices as defined later on shall be unseated, and that in every other case where the validity of an election is in dispute between two or more candidates, the Judge shall scrutinize and count the votes and declare elected that candidate who has the greatest number of valid votes. No other specific power is given in terms to the Judge making an order under Section 15. There is however a provision in Sub-section (5). that a Judge shall not set aside an election of which the validity is questioned only on the ground of an error in carrying out the election rules or any irregularity or informality not corruptly caused ; and the sub-section has an explanation to the effect that "error" does not include any breach "of the Act or rules which has materially affected the result of the election. The Assistant Judge has spelt out of Sub-section (5) read with the explanation a positive permission to a Judge to set aside an election on grounds other than the grounds for which he is by Sub-section (5) expressly prohibited from setting aside an election. In other words from a provision which in terms is purely negative from beginning to end the learned Judge has inferred a positive permission to do something which in terms the entire section nowhere authorises him to do. I do not think that this method of interpretation is legitimate. It is true that the beginning of the section is in general terms and does not restrict the power of a voter to question an election on any grounds, but I am not prepared to hold that this implies that the enquiring authority has a right to pass orders except in accordance with the express terms of Sub-section (3).