Decided on September 28,1954

V.A. Ransing Appellant
Shankar Vithal Sape Respondents

Referred Judgements :-



M.C.CHAGLA, C.J. - (1.)THIS is a petition challenging the decision of the Assistant Judge, Dhulia, dismissing the petitioner's petition challenging the election of opponent No. 1 as a member of the Municipal School Board of the Dhulia - Municipal Borough. The election took place on September 13, 1953, and the petitioner and opponent No. 1 stood for the election. At the time of the scrutiny of the nomination papers the petitioner objected to the nomination of opponent No. 1 on the ground that he did not possess the requisite educational qualification. That objection was overruled and the Returning Officer accepted the nomination paper of opponent No. 1. The election was held on September 13, 1953, and opponent No. 1 was declared elected.
(2.)NOW , under the Bombay Primary Education Act, Section 4 deals with the constitution of school boards and Sub -section (1) provides: Each school, board shall consist of members not less than twelve and not more than sixteen in number. Sub -section (2) provides: Of these members not less than two and not more than three in number shall be appointed by the State Government. Sub -section (4) provides for the qualifications of the members to be appointed by the State Government. Sub -section (5) provides that the members other than those appointed, by the State Government shall be elected by the district local board or the authorised municipality, as the case may be; and Sub -section (7) deals with the qualifications of the persons to be elected under Sub -section (5) and the qualification is that the members elected under Sub -section (51) shall have passed the primary school certificate examination or shall possess such other equivalent or higher educational qualification as may be prescribed. Now, it has been found by the learned Assistant Judge, and that finding is not disputed before us, that opponent No. 1 does not possess the educational qualification required under Sub -section (7) of Section 4. Then Section 5 deals with disqualification of members and it provides that no person shall be elected, appointed or nominated a member of a school board who does not either posses the qualification mentioned in that section or suffers from the disqualification mentioned in that section. Then Section 6 deals with the jurisdiction of the District Judge to determine the validity of an election, and Sub -section (2) lays down the ambit of his jurisdiction, and that ambit is that after proper inquiry the District Judge may pass an order confirming or amending the declared result of the election or setting the election aside. Sub -section (5) contains a mandatory direction upon the District Judge while exercising his jurisdiction under Sub -section (2) to set aside the election if he finds that the candidate has committed a corrupt practice within the meaning of Sub -section (6) and he has also got to declare the candidate disqualified for the purposes of the election and of a fresh election. Sub -section (6) defines what a corrupt practice is and again it is not disputed that no corrupt practice has been committed by opponent No. 1 within the meaning of this sub -section. Then Sub -section (7) contains a further direction to the District Judge while exercising his jurisdiction under Sub -section (2), and that direction is: If the validity of the election is brought in question only on the ground of an irregularity or informality -which has not materially affected the result of the election or which has not been corruptly caused, the Judge shall not set aside the election. Then Section 7 deals with disqualification which arises subsequent to the election of the member and during the term of his office, and Sub -section (2) confers jurisdiction upon the State Government to decide any question with regard to a vacancy under that section. Section 9 confers the power upon the State Government to remove, either on its own motion or on the recommendation of the board supported by a resolution passed by a two -thirds majority, any member elected, appointed or nominated on the school board, if such member has been guilty of misconduct in the discharge of his duties or of any. disgraceful conduct or has become incapable of performing his duties as a member by reason of any physical or mental infirmity.
Now, Mr. Desai's contention on behalf of opponent No. 1 is that inasmuch as the Returning Officer investigated the educational qualification of his client and inasmuch as he was satisfied that ha had the requisite qualification and allowed him to be nominated, his decision became final and that decision cannot be challenged by the District Judge. In the first place, there is nothing in the Act or in the Rules framed under the Act which makes the decision of the Returning Officer accepting a nomination paper as final. It may be pointed out that the rules provide for an appeal if the Returning Officer rejects a nomination paper, but there is no provision for appeal if he accepts a nomination. Mr. Desai wants us to infer from that fact that the decision of the Returning Officer becomes final as soon as it is given because the rules do not even provide for an appeal from his decision. It is a well known principle of election laws that decisions of Returning Officers cannot be challenged while the election has still to take place, and we often find provisions in rules where the decision of the Returning Officer is made final. But the finality is only an ad hoc finality. The reason for that finality is that the election should not be held up by parties going to civil Courts and getting their rights adjudicated. The law provides that the proper time to adjudicate upon these rights is by election petitions after the election has taken place. But here, as we have already pointed out, there is not even a provision giving an ad hoc finality to the decision of the Returning Officer. Therefore, it cannot be said that the jurisdiction of the District Judge has been ousted by the Legislature making the decision of the Returning Officer final.

(3.)IT is then contended that the District Judge has no jurisdiction to consider the qualification of a member under Section 6 and it is pointed out that no corrupt practice has been established against opponent No. 1 under Sub -section (5) of Section 6. Now, as we have had occasion to point out in Narayan Maruti v. District Judge, Kolaba (1952) 55 Bom. L.R. 314, when considering the analogous provision of the Bombay District Municipal Act, the jurisdiction of the District Judge under Sub -section (2) is a very wide jurisdiction and that jurisdiction is in no way limited either by Sub -section (5) or Sub -section (7). This is not a case where a disqualification attaches to an elected member after he has been elected. The contention of the petitioner is that opponent No. 1 was not eligible for being elected and it is difficult to understand why it could not be said that the election is not valid when the person who has been elected was not eligible to be elected at all. Therefore, what the petitioner sought before the District Judge was to challenge the validity of opponent No. 1's election on the ground that he had no qualification required by the statute in order that he should be elected. Therefore, the disqualification relied upon by the petitioner was a disqualification which prevented opponent No. 1 from being elected. It was not a disqualification which brought about a vacancy by reason of a disqualification arising subsequent to the election.

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