Decided on September 23,1935

STATE Respondents


John Beaumont, Kt. , C. J. - (1.) THIS is a petition under Section 45 of the Specific Relief Act by which in substance the petitioner asks that the Municipal Commissioner may be directed to hear and decide certain objections which the petitioner takes to a recent election in B Ward in the city.
(2.) BEFORE coming to the facts, it is desirable to look at the material provisions of the City of Bombay Municipal Act, 1888, under which the election was held. Section 26 provides that candidates for election at a ward election must be: duly nominated in writing in accordance with the provisions of the section ; and under Sub-section (2) (e) (Hi) if any person nominated is disqualified for being a councillor for any of the reasons set forth in Section 16, the Commissioner shall declare such person's nomination invalid. Under Section 16, a person is disqualified if he fails to pay any arrears of any kind due by him to the Corporation within three months after a special notice in that behalf has been served upon him. Then it is provided in Section 26 that if there are more candidates than there are vacancies, the election is a contested election ; and Section 27 (J) provides that when a ward election is contested, a poll shall be taken seven days after the day fixed for the election, and Sub-section (2) provides that at least three days before the day of the. poll, the Commissioner shall cause the names of all the persons validly nominated, with their respective abodes and descriptions, to be published in the Bombay Government Gazette and in the local newspapers. Then Section 28 contains various provisions relating to contest (c)J ward elections, and the material one is Sub-section (k) which provides that the Commissioner shall, as soon as may be, declare the result of the poll, specifying the total number of valid votes given for each candidate, and he shall, as Soon as may be, hear and decide all objections, if any, to or regarding the poll, made to him in writing not later than 5 o'clock of the afternoon of the day after the poll and shall cause lists to be prepared for each ward, specifying the names of all candidates, and the number of valid and the number of rejected! votes given to each candidate. Then Section 29 enables the Corporation, with the sanction of the local Government, to make rules for the conduct of elections. And then Section 33 directs that an election petition, in which the validity of any election is in question, shall be heard by the Chief Judge of the Small Causes Court, and any such petition has to be presented within fifteen days from the date on which the list prescribed under Sub-section ' () of Section 28 was available. The facts in the present case are very simple. An election was to be held in Ward B, and the Municipal Commissioner fixed August 20 as the day of election. There were originally four candidates for one vacancy, so that the election was a contested election, and a poll had to be held on August 27. Before the day of the poll, two of the candidates withdrew, leaving only the present petitioner and Mr. Allarakhia who intervenes on this petition. After the poll, and before 5 o'clock on the following day, the petitioner gave notice in writing to the Commissioner of certain objections to or regarding the poll taken on August27 Those objections are set out in the letter of August 28, 1935, which is annexture B to the petition. The first objection was that the taking of the poll was illegal and invalid. The second objection was " that without prejudice to the aforesaid objection, the said poll was conducted in a manner contrary to law. " Then objections 3, 4 and 5 were in terms based on the validity of one of the rules made under the Act; and objection 6 was. that "the votes taken at the poll for Mr. Allarakhia are all invalid". The Municipal Commissioner in his reply of August 29, 1935, stated that objections 1 to 5 " are purely questions of law and are outside the scope of Section 28 (k) of the City of Bombay Municipal Act. " As regards objection 6, the Commissioner asked for further particulars, but he has never refused to hear objection No.6, and that matter is standing over until this petition is disposed of. I think the Municipal Commissioner was wrong in refusing to hear and decide all the objections 1 to 5 on the ground that they raised points of law. There is nothing in Sub-section (k) of Section -28 which restricts the objections, which, the Commissioner is required to hear and decide, to questions of fact. If questions of law or mixed questions of law and fact arise, and if the-Municipal Commissioner is not a lawyer himself, he must do the best he can, but he is not entitled to refuse to perform the duty imposed upon, him by the Act by saying that he does not know the law and is not competent to perform the duty. I think that he ought to have heard, at any rate,, objections 1 and 2, which were expressed in general language, as well as objection 6. But in this petition the grounds for those objections have been explained, and it appears that objection No.1-that the taking of the poll was illegal and invalid-is based on the contention that Mr. Allarakhia was disqualified from being a candidate under Section 16 of the Act, and that therefore the acceptance of this nomination was invalid; and the petitioner asks not only for a direction on the Municipal Commissioner to hear that question but for an order on him to produce the Municipal books, which will show that Mr. Allarakhia was in arrears with his dues, and that a notice had been properly served upon him. In my opinion, that is not an objection to or regarding the poll within the meaning of Section 28 (ft ). It is an objection to the acceptance of the nomination of Mr. Allarakhia, which precedes any question
(3.) > f a contested election, and any question relating to the poll. In my opinion. therefore, the Municipal Commissioner,-now that we know the real reasons for objection No.1,-is entitled to say that it is not a matter which arises under Section 28 (k ). It further appears from the petition that objection No.2 is really based on the same contention as that in the next three objections. The contention is that the last part of rule 8 of the rules made under Section 29 is invalid, and that the conduct: of the election under that rule has resulted in a lot of illegal votes being recorded. Technically, I think, that is a question which the Commissioner could be called upon to decide ; but it seems to me that he could only decide it in one way. The Commissioner is a servant of the Corporation, and he is conducting the poll under the rules made by the Corporation with the sanction of the Local Government, and I think that he is bound by the. rules as they stand and cannot question them, and he would be bound so to decide upon any objection which challenged the validity of a rule. If the rules are to be questioned, they must be questioned in the appropriate: Court. Although, therefore, I think that we have jurisdiction to make the rule absolute, and direct the Commissioner to decide that objection, it would obviously be futile to do so, if the Commissioner is bound to answer the question in one way only. So that in the exercise of the Court's discretion, I think that we ought to refuse to make the rule absolute.;

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