P.B.SAWANT, J. - (1.) By this petition filed under Article 227 of the Constitution, the petitioners seek to challenge the order dated 23-7-1974 passed by the Additional Chief Judge, Court of Small Causes, Bombay in an election petition under section 33 of the Bombay Municipal Corporation Act, 1888 (hereinafter referred to as the said Act.)
(2.) A general election to the Bombay Municipal Corporation was held on 9-3-1973. The original respondent No. 1 one Mohamad Abdulla Sarang was declared elected from Ward No. 9 to the said Corporation on 12-3-1973. An election petition was filed by the present petitioners who were the voters from the said Ward, challenging the validity of the election of the said Sarang, on 26-3-1973. Respondent No. 1 is the Corporation and respondent No. 2 is the Commissioner of the said Corporation. Respondents No. 3 and 4 are the defeated contesting candidates at the said election. It appears that after the petition was filed, the said Sarang died on 24-4-1973 after the service of the petition was affected on him. Respondent No. 5 thereafter made an application for being joined as a party to the election petition and by the order dated 7-9-1973, the respondent No. 6 Additional Chief Judge of the Small Causes Court trying the election petition under section 33 of the said Act joined him as a party to the petition. Thereafter issues were framed on the pleadings of the parties. In the election petition, the petitioners, in paragraphs 7 and 8 had made various allegations against the elected candidates. The purport of the said allegations was that respondent No. 1 had secured votes by making false, malicious and defamatory statements against respondent No. 2 who was the defeated candidate. It was also alleged that the personal character of respondent No. 2 was maligned. It was further alleged that the elected candidates had exercised undue influences on votes by communal propaganda and thereby also had secured votes at the election. It was further alleged that these various acts were committed either by respondent No. 1 or with his consent. Issues Nos. 6 and 7 were framed with regard to the said pleadings. In addition, Issue No. 5 was framed. It was in the following words :--- Whether parties are not entitled to lead evidence of corrupt practices or illegalities other than those covered by section 28-F of the Bombay Municipal Corporation Act ?" This issue was tried as a preliminary issue and the learned Judge by his impugned order held that the petitioners were not entitled to lead evidence of corrupt practices or illegalities which were mentioned in paragraphs 7 and 8 of the election petition. It is this order which is challenged in this petition.
(3.) Mr. Naik who appears for the petitioners fairly conceded that the allegations made in paragraphs 7 and 8 of the election petition would not be covered by practices enumerated in section 28-F of the said Act. However he contended that it was urged before the learned Judge that although the said allegations would not be covered by section 28-F, the same would properly fall under the expression "for any other cause" in section 33(1) of the said Act. I may now reproduce the relevant portion from section 33(1) which is as follows :--- If the qualifications of any person declared to be elected for being a councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the group that he was committed a corrupt practice within the meaning of section 28-F, any person enrolled in the Municipal election roll may, at any time within fifteen days from the date...........apply to the Chief Judge of the Small Causes Court.............." (Underlining is mine). A perusal of the aforesaid provisions therefore makes it clear that the validity of any election can be questioned not only on the ground that the elected candidate has committed a corrupt practice within the meaning of section 28(F) of the said Act but also for any other cause. There is no explanation of the phase "for any other cause. There is no explanation of the phrase "for any other cause" given either in the said section or anywhere else in the said Act. It will be therefore a matter of construction as to whether the expression "for any other cause" includes all cases that may be made out by the petitioners in an election petition. However the allegation made in paragraphs 7 and 8 of the election petition, a gist of which has been reproduced above, cannot be said to fall outside the scope of the said as pression "for any other cause". I am fortified in this view of mine, by the decision dated 19th/20th August, 1974 of my brother Justice Deshpande as (Special Civil Application No. 1318 of 1974.)Although therefore the allegations made in paragraphs 7 and 8 of the election petition do not fall within any corrupt practices mentioned in section 28-F of the said Act, they would be covered by the said expression "for any other cause" used in section 33(1) of the said Act. If therefore, as urged by Mr. Naik, a contention was advanced before the learned Judge that the petitioners should be allowed to lead evidence on the said allegations as failing under the expression "for any other cause", there was no reason why the learned Judge should have disallowed them to do so merely because the said allegations were not covered by section 28-F of the said Act. It is true that in paragraphs 7 and 8 of the election petition the petitioners have called the said allegations as corrupt practices. Mr. Naik contended before me that the allegations remaining the same it was open for the learned Judge to allow the evidence on the basis that they fell under the expression "for any other cause" even without making an amendment and calling them as "any other cause" instead of "corrupt practices". He further urged that in order to circumvent the technical difficulty that may come in their way, the petitioners are prepared to amend paragraphs 7 and 8 of the election petition by deleting the words "corrupt practices" and substituting them by the words "any other cause". Mr. Naik has filed an affidavit of petitioner No. 2 to that effect which is taken on record. According to me there is no reason why such a course should not be allowed to be adopted. The petitioners by such an amendment do not seek to change any word of the allegations made in paragraphs 7 and 8 of the election petition. It cannot therefore be said that the contesting respondents will in any way be prejudiced by such amendment.;