Decided on December 20,1963



B.J.DIVAN, N.M.MIABHOY - (1.) This is a petition under Articles 226 and 227 of the Constitution for an appropriate writ direction or order praying that the order made by the 5th respondent herein be quashed and that the order made by the third respondent and confirmed by the 4th respondent in appeal be restored.
(2.) The general elections for the election of municipal councillors of the Baroda Municipality were held in June 1962. The petitioner and respondents Nos. 1 and 2 were proposed to be the candidates at that election. Under the programme for elections the date for filing nominations was June 8 1962 and the date for scrutiny of the nomination papers was June 9 1962 The Returning Officer for the elections was the third respondent in these proceedings. The petitioner wanted to stand as a candidate for the said election from Ward No. 11 and two councillors were to be elected from Ward No. 11 for the two seats allotted to that ward. The nomination paper of the petitioner was duly filed and thereafter two nomination-papers proposing respondent No. 2 as a candidate for Ward No. 11 were filed in both of which one Randive Shamrao Balwantrao subscribed as proposer and one Ambalal Motilal Parmar subscribed as seconder. The same two individuals viz. Randive Shamrao Balwantrao and Ambalal Motilal Parmar had also respectively proposed and seconded another set of two nomination papers in the case of the first respondent who was also a candidate for Ward No. 11 at the election. The two nomination papers of respondent No. 2 were received at 12-51 hours and 12-52 hours on June 8 1962 and were given Sr. Nos. 52 and 53 respectively. The two nomination papers subscribed by Randive Shamrao Balwantrao and Parmar Ambalal Motilal as proposer and seconder in the case of respondent No. 1 were received on June 8 1962 at 12-53 hours and 12-54 hours respectively and were given Sr. Nos. 55 and 56 by the third respondent. The scrutiny of nomination papers took place on June 9 1962 The nomination papers of respondent No. 1which were at Sr. Nos. 55 and 56 were held to be invalid by the Returning Officer on the ground that there were already two nomination papers which were subscribed by the said seconder and proposer and because under rule 15 (3)(ii) of the Bombay Borough Municipalities Election Rules 1950 (hereinafter referred to as the Rules) the same proposer and seconder could not subscribe more than two nomination papers in this particular constituency which had two seats. The two nomination papers bearing Sr. Nos. 52 and 53 proposing respondent No. 2 as the candidate were already accepted and therefore the nomination papers proposing respondent No. 1 as the candidate at Sr. Nos. 55 and 56 were rejected. The proposer and seconder of the first respondent preferred an appeal to the Collector as provided by sub-rule (4) of rule 16 of the Rules. The 4th respondent the Collector of Baroda heard and disposed of the appeal on June 14 1962 and the 4th respondent held that the nomination papers proposing the name of the first respondent were rightly rejected by the Returning Officer. As there were no other candidates for Ward No. 11 the petitioner and respondent No. 2 were elected as councillors from Ward No. 11. Thereafter the first respondent filed Civil Miscellaneous Application No. 77 of 1962 in the District Court of Baroda under the provisions of sec. 15 of the Bombay Municipal Boroughs Act 1925 (hereinafter referred to as the Act) on June 26 1963 and the contention of the first respondent was that as his nomination papers were illegally and wrongly rejected the result of Ward No 11 had been materially affected and hence the election of Ward No. 11 should be set aside. This application was heard by the 5th respondent the Assistant Judge at Baroda to whom this application was assigned under the provisions of law and by his judgment and order the 5th respondent declared that the nomination papers of the first respondent herein had been improperly and wrongly rejected so as to affect materially the result of the election of Ward No. 11 and he set aside the election of the petitioner and respondent No. 2 and directed that a fresh election for Ward No. 11 should be held as may be fixed by the officers concerned. It is this order of the 5th respondent which has been challenged in the present petition.
(3.) Mr. Karlekar appearing on behalf of the petitioner has urged two points before us. He has firstly contended that the Assistant Judge at Baroda the 5th respondent herein had no jurisdiction to decide the question regarding the validity of the order rejecting the nomination paper of respondent No. 1 inter alia because under the rules the order of the Collector as regards the rejection of the nomination paper was final. His second point was that even if the Assistant Judge had the jurisdiction to decide the point on merits the nomination papers of respondent No. 1 were not valid and the order of the Assistant Judge holding that these nomination papers of respondent No. 1 were valid was erroneous.;

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