Decided on June 13,1962

Ajgaralli Yusufalli Appellant
Kacharulal Maneklal Respondents

Referred Judgements :-



H.K.CHAINANI, J. - (1.)THE dispute in this application relates to the election held in ward No. 2 of Dondaicha Varvade Municipality on September 25, 1960. Three councillors were to be elected from this ward and one of the three seats was reserved for women. There were eight candidates and they received votes as follows: -
1. Ajgaralli Yusufalli 3252. Sushilabai Tukaram Jadhav 270 3. Kacharulal Maneklal 3254. Suratsinh Padamsinh 1315. Khatun Bhikan Pinjari 526. Bhika Supadu Bhavsar 2987. Gitabai Gangadhar Lingayat 2738. Shaikh Kasam Piran 376

(2.)OF the two women candidates, serial No. 7 Gitabai, who is opponent No. 2 in the present special civil application, was declared to be elected, as she had received three votes more than the other woman candidate Tehshilabai. Amongst the .male candidates, Shaikh Kasam Piran was declared elected, as he had received the highest number of votes. For the third seat there was a tie between Ajgaralli and Kacharulal, as they had secured equal number of votes. The Returning Officer, therefore, drew lots as provided in the Bombay District Municipal Election Rules and Ajgaralli was declared duly elected to the third seat. Sushilabai, who is petitioner No. 2 in the present application, then filed an election petition No. 2 of 1960 before the District Judge, West Khandesh. All the three elected candidates, Gitabai, Shaikh Kasam Piran and Ajgaralli were made parties to this petition. In her petition Sushilabai stated that she did not claim any relief against opponents Nos. 2 and 3, that is, Shaikh Kasam Pirail and Ajgaralli. Her allegation was that many valid votes east in her favour had not been counted and some invalid votes cast in favour of Gitabai had been treated as valid. She, therefore, prayed for a fresh scrutiny and computation of votes, for the 'election of Gitabai being set aside and for her being declared to have been elected in place of Gitabai. Kacharulal, who had received the same number of votes as Ajgaralli, filed another petition, election petition No. 3 of 1960, against Ajgaralli. In his petition he alleged that Ajgaralli was not qualified to stand for election, as he was a partner of a shop, which used to sell goods to the municipality, and that, consequently, he was disqualified from being a councillor under Clause (1) in Sub -section (1) of Section 15 of the, Bombay District Municipal Act, which applies to Dondaicha Municipality., Both these petitions were consolidated and heard together. The petitions were heard by the Assistant Judge. He came to the conclusion that Ajgaralli was disqualified from standing for election as a councillor. He also found that Gitabai had been properly declared to have been elected as a councillor. He, therefore, dismissed the election petition filed by Sushilabai. He, however, allowed the. election petition filed by Kacharulal and set aside the election of Ajgaralli. Although Kacharulal had not made a prayer to that effect, the learned Assistant Judge declared Kacharulal to be a duly elected member of the Municipality. Against the order passed by the learned Judge, Ajgaralli and Sushilabai have filed the present special civil application.
Mr. Kane, who appears on behalf of the two petitioners, has first urged that the learned Judge should have set aside the entire election, when he came to the conclusion that Ajgaralli was disqualified from standing for flection. No such prayer was, however, made either in the election petition filed by petitioner No. 2 Sushilabai or petitioner No. 1 Ajgaralli. In, the petition filed by petitioner No. 2 Sushilabai, she specifically stated that she did not claim any relief against Ajgaralli and other elected candidate. Shaikh Kasam Piran. In the other election, petition filed by Kacharulal, Gitabai and Shaikh Kasam Piran were not made parties. Consequently, in neither of these two petitions was any prayer made for the election of at least Shaikh Kasam Piran being set aside. As, therefore, no prayer had been made for the entire election being set aside in either of the' two petitions, it is not possible to accept Mr. Kane's contention that the election of all the three candidates, who were declared to have been elected, should be set aside.

(3.)THE next question, which Mr. Rane has raised, is that the learned Assistant Judge was not right in declaring Kacharulal to be elected. In order to consider this question, it is first necessary to refer to the relevant provisions of the Bombay District Municipal Act, which empower the District Judges to hear election petitions. Sub -section (1) of Section 22 of the Act states that if the validity of any election of a councillor is brought, in question by any person qualified either to be elected or to vote at the election, such person may, at any time within ten days after the date of the declaration of the result of the election, apply to the District Judge of the district within which the election has been held. Sub -section (2) provides that an inquiry shall thereupon be held by a Judge not below the grade of an Assistant Judge, and that such Judge may, after such inquiry as lie deems necessary, and subject to the provisions of sub's. (3), pass an order confirming or amending the declared result of the, election, or setting the election aside. This sub -section empowers the Judge to either confirm the, declared result of the election or to amend the declared result of the election or to set the election aside. Sub -section (5) is as follows:
(a) The Judge, if satisfied that a candidate has, within the meaning of Sub -section (4), committed any corrupt practice for the purpose of the election, shall declare the candidate disqualified both for the purpose of that election, and of such fresh election as may be held under Sub -section (2), and shall set aside the election of such candidate if he has been elected.

(b) If in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall, after a scrutiny and computation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected:

There are two provisos to this sub -section, to which it is not necessary to refer for the purposes of this petition. Sub -section (5) states that if the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under the Act or of an irregularity or informality, not corruptly caused, the Judge, shall not set aside the election.

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