BHAIRULAL CHUNILAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE petitioner is a rate payer and a voter of the Amalner Borough Municipality which is opponent 3 to this petition, and he has sought for a writ of 'quo warranto' against opponent 3 contending that the general election held on 2-3-1953, by which the councillors of the Amalner Borough Municipality were elected was null and void and therefore the Municipality has no power or authority to discharge the duties under the Municipal Boroughs Act. Certain reliefs were also sought against the State of Bombay and the Collector of East Khandesh, Jalgaon, who are opponents 1 and 2, but at the very outset Mr. Kotwal stated to the Court that he was not seeking any reliefs against the first two opponents and he would be content with a writ of 'quo warranto' against opponent 3.

(2.) THE councillors of the Amalner Municipality were elected in 1949 for a period of three years, the triennium ending on 15-1-1952. Under Section 25 (1) of the Bombay Municipal Boroughs Act the term of office of a councillor of a Borough Municipality who is either nominated or elected at a general election is three years, but that term of office can be extended by an order of the State Government to a term not exceeding the aggregate of four years. On 18-9-1951, the State Government issued a notification extending the life of the Municipality up to 31-3-1952. A further notification was issued on 26-3-1952, extending it till 31-10-1952, and a further notification was issued on 27-9-1952, extending the life till 31-3-1953. It is urged by the petitioner that the notification issued by the Government on 27-9-1952, was without authority of law and Government could not extend the life of the Municipality up to 31-3-1953. Therefore, it is urged that the existence of the Amalner Municipality came to an end on 31-10-1952, and there was no Municipality in existence after that date. It will be noticed that when the Government extended the life of the Municipality up to 31-3-1953, they extended it beyond four years, and therefore as the section stands it is clear that Government would have no such power to extend the life of the Municipality beyond the aggregate of four years. The Government purported to issue this notification under the belief that it had power to do so by reason of the amendment of Section 25 (1) which was brought about by Section 6 of Act 17 of 1950. That section was in the following terms :

(3.) NOW, the importance of this contention on the part of the petitioner lies in this that under the rules framed by Government known as the Bombay Borough Municipal Election Rules, 1950, the Municipality has to play a very important role. For instance, under Rule 35 (1), on the date and at the time appointed under Rule 12, the ballot box or boxes shall be opened and the voting papers shall be scrutinised at a special general meeting of the Municipality in the presence of such candidates or their representatives duly authorised in writing as may be present; and Mr. Kotwal contends that inasmuch as the Municipality had ceased to exist on 31-10-1952, when the election was held there was no Municipality which could discharge the function and carry out the duties entrusted to it under the Election Rules, and therefore the election that took place was not a proper election at all and no proper Municipality was elected. With regard to the election, it is important to note that an order was issued by the Collector under Rule 12 on 26-12-1952, fixing the date and place of the election. On 20-1-1953, the President of the Municipality issued a public notice announcing to the public the various dates and times that had been fixed by the Collector under Rule 12. The election actually took place on 2-3-1953, and the result of the election was declared between 3-3-1953, and 7-3-1953, and the present petition challenging the election was filed on 2-4-1953. Perhaps it would be best if we also noticed at this stage another important contention put forward by the petitioner, and that is that the President of the Municipality, who has also got to play an important part in the conduct of the election was not a properly elected President, and for that reason also the election that took place was not a proper election. Under Rule 31 it is provided that the election shall be conducted under the general supervision of the President and the Returning Officer, and there are other rules which lay down what duties are to be discharged by the President in the conduct of the election, and it is pointed out that in January 1953 Mr. Deshmukh who purported to be the President of the outgoing Municipality was not the properly elected President, and therefore, if he discharged any duties under the rules as the President, he did so without authority and illegality.