MODI, J. - (1.) APPELLANT Firoj Jal Moti Shaw and respondent Jagdishprasad were candidates for the general seat from ward no. 6 for election as members to the Mourn Abu Municipality, Mount Abu, hereinafter to be referred to as the municipality. From the same ward, Bala was candidate for the reserved seat. The elections took place on 25-10-70 and the appellant and Bala were declared duly elected from W. No. 6 for the general and reserved seats respectively. The respondent who secured less votes than the appellant, presented an election petition under sec 34 of the Rajasthan Municipalities Act, 1959, hereinafter to be referred as the Act, calling in question the election of the appellant as also of Bala on the ground that both of them were guilty of corrupt practices. An additional ground was also taken by the respondent that the appellant was disqualified for being elected as member by reason of Clause (xii) of sec. 26 of the Act. It was contended that the appellant on account of his being 'sarvesarva' (a!l-in all) employee of the Mount Abu Electric Supply Company, Mt. Abu, hereinafter described as the Company, had direct or indirect interest in the contract for the supply of electricity entered into between the Company and the Municipality. The election Petition was opposed by the appellant as also by Bala. The learned Civil Judge who tried the election petition, framed the following issues. 1. Whether the non-applicant No. 1 was disqualified to stand for the election in lieu of sec 26 (12) of the Rajasthan Municipalities Act, 1959 ? 2. Whether the applicant proves that there was a pact between the non-applicants to fight the election and for this reason the election of the non-applicants is void ? 3 Whether the non-applicant No. 1 used corrupt practices in the election as stated in para 4 of the election petition ? 4. Whether the statement (speech) of Shri Khet Singh amounted to a corrupt practice in relation to the congress candidate (non-applicant no. 2) as well as non-applicant No. 1, and if so, on that ground the election of the non-applicants could be declared invalid ? 5. Whether the election petition is without time ? 6. Whether the court has jurisdiction to hear the petition ? 7. Relief? On a consideration of the evidence led by the parties, the learned Civil Judge found issue no. 1 in favour of the respondent. He held that the appellant being admittedly an employee of the Company had both direct and indirect interest in the contract between the Municipality and the Company. He was therefore declared disqualified under sec. 26 (12) of the Act from contesting the election. Issues No. 2, 3 and 4 which related to the various allegations of corrupt practices were found against the respondent. Issues Nos. 5 and 6 were found in favour of the respondent. The learned Civil Judge, in the result, in view of his finding on issue No. 1 partly allowed the election petition and declared the election of the appellant void. Dissatisfied with the said order, the appellant has preferred this appeal.
(2.) THE main controversy in the present appeal centres round to the first issue relating to the question whether the appellant was disqualified for being chosen as a member of the Municipality under sec. 26 (12) of the Act. In order to appreciate the point involved in the right perspective, it is necessary to narrate some facts which are no longer in dispute. It is an admitted case of the parties that at time of the filing of the nomination papers so also at the time of the scrutiny and on the date of the election, the appellant was holding the post of Engineer-in-charge of the Company. During the relevant period he was operating the account of the Company and was looking after all the affairs of the Company. THE Company commenced supplying electricity to the Municipality under an agreement entered into in the year 1939. This agreement was for a period of 30 years. On the expiry of period of 30 years, another agreement was entered into on 26-11-69 for a further period of 10 years. This agreement dated 26-11-69 was in force at the time of the filing of the nomination paper by the appellant. It is further not in dispute that the appellant was a paid employee of the Company during the relevant period. THE terms of his employment are contained in the agreement Ex. A/1. It is also not in dispute that the Company is a partnership-firm and the appellant is not a partner in it and he owns no share in it THE learned Civil Judge on the aforesaid admitted facts ob-erved "having given my anxious consideration to the arguments advanced by the learned advocates for the parties, I am of the opinion that in the present petition the non-petitioner no. 1 being an employee of the Mount Abu Electricity Company and being highly interested in the affairs of the Company, he cannot be said to be a person not interested in the contract between the Municipal Committee, Mount Abu and the electricity supply company and there would be a clash with his duty as a member of the Municipal Committee on account of his employment in the company. Secondly, the non-petitioner himself has stated that in case the company gets more profits the non petitioner would get more bonus and therefore the non petitioner would always be interpreted in looking to the pecuniary benefits of the company rather than to the interest of the Municipal Committee, Mt. Abu. He would thus get a financial benefit on account of the contract between the company and the Municipal Committee. THErefore, through his employer he is interested in the contract. ' The main target of attack on behalf of the appellant has been the judgment of the learned Civil Judge. Mr. Mridul, the learned advocate for the appellant, in the first instance, contends that it was wholly unnecessary fur the learned Civil Judge to give any finding that the appellant was disqualified under sec. 26 ( 12) of the Act. Elaborating his argument, the learned counsel emphasised that unless there is a living issue between the parties, the Court should not proceed to decide it. In the present case, it is contended that the term for which the appellant and other members of the municipality were elected at the election had expired during the pendency of the election petition before the learned Civil Judge. On the date of the decision by the learned Civil Judge, the appellant was no longer the member of the municipality. That being the case, it is argued that it was a futile exercise on the part of the learned Civil Judge to hold that at the date of the nomination, the appellant was disqualified under sec. 26 (12) of the Act specially when he definitely arrived at the conclusion that issues Nos. 2, 3 and 4 relating to charges of corrupt practices levelled against the appellant and Bala were not proved It is further contended that the findings on issues Nos. 2, 3 and 4 were appealable under sec. 46 of the Act and since no appeal or cross objection was presented by the respondent challenging the findings of those issues, it is no longer open to the respondent to challenge the findings arrived at by the learned Civil Judge on issues Nos. 2, 3 and 4. On the other hand, it is argued by Mr. G. M. Lodha, the learned advocate for the respondent that the Company entered into an agreement in 1939 with the Municipality to supply electricity for a period of 30 years and after the expiry of the said period of 30 years, another agreement was entered into in 1969 to supply electricity for a further period of 10 years He submits that the appellant is still an employee of the Company and the contract between the Company and the Municipality is still subsisting. He therefore contends that in these circumstances, it cannot be said that there is no living issue to be decided between the parties. Mr. Lodha then drew my attention to two applications filed before this Court on 2 8-74 and 3-9-74 on behalf of the appellant wherein a prayer was made for early hearing of the appeal on the ground that fresh Municipal elections at Mount Abu were expected to be held shortly. From these applications as also from the fact that the contract between the Company and the Municipality is still subsisting and the fact that the appellant is still an employee of the Company, the learned counsel submits that an inference be drawn that the issue being whether the appellant was disqualified to contest the election is a living issue between the parties and the Court below rightly decided it even though the term of the appellant as a member of the Municipality had expired during the pendency of the election petition in the lower court. Mr. Lodha has further contended that though it is true that the respondent has not filed any appeal or cross-objection challenging the correctness of the findings on issues Nos. 2, 3 and 4, the respondent, according to him, is still entitled to support the judgment of the lower court by challenging the findings on the said issues. Mr. Lodha, in connection with the allegations of corrupt practices pleaded by the respondent, confined his argument in respect of issue No. 4 only and in support thereof he read over to me the speech Ex. 6 said to have been delivered by the Deputy Minister-Shri Khetsingh (as he then was) and the statements of PW 1, PW 2 and PW 4. He did not challenge the findings on issue Nos. 2 & 3 arrived at by learned Civil Judge. There is no manner of doubt that the issue relating to corrupt practice is always a living issue. The reason is obvious. If the candidate is found guilty of corrupt practice charged practice against him, not only his election would be declared void but he would also incur certain electoral disqualifications. Sec. 59 of the Act provides that a person guilty of corrupt practice specified in sec. 35 shall entail disqualification from the membership of a Board for a period of five years from the date of the finding of the Judge as to such corrupt practice. Mr. Mridul, the learned advocate for the appellant, has argued that finding on issue No. 4 which relates to corrupt practice cannot be challenged by the respondent in this Court because no appeal or cross-objection challenging that finding has been filed on behalf of the respondent. I do not propose to express my opinion on this legal objection, for I find that there exists no evidence worth consideration in support of issue No. 4. It is alleged that Shu Khetsingh gave a speech at Mount Abu on behalf of the congress party to support the candidature of Bala. It is further contended that the speech delivered by Shri Khetsingh amounted to corrupt practice and since Bala had election pact with the appellant, the latter was also guilty of corrupt practice within the meaning of sec. 35 of the Act. It is significant to note that there is no allegation whatsoever in the election petition that corrupt practice was committed by Shri Khetsingh with the consent of the appellant or his election agent. There is also no evidence except the bald statement of the respondent that the appellant had election pact with Bala the statement of the respondent in this connection is highly vague and deserves to be rejected outright. The learned Civil Judge, in my opinion, rightly decided issue No. 4 against the respondent. The question now arises whether in the absence of proof of corrupt practice having been committed by the appellant, I should go into the question of disqualification of the appellant under sec 26 (12) of the Act even though the term for which the appellant was elected as a member of the Municipality had undoubtedly expired during the pendency of the election petition. There cannot be two opinions that the decision of the issue, one way or the other, is not going to have any impact on the position of the parties. 1 he decision of the question whether the appellant on the date of the nomination was disqualified would be wholly meaningless after the expiry of the term for which the appellant was elected. The disqualification even if it was there would only mean that he was not entitled to contest the election on the date when he filed his nomination. Such a decision would be of no consequences operating in future. If that is so, how can it be said that the issue is a living issue. It is well-settled that the Court should not undertake to decide an issue unless it is a living issue. See Loknath Padhan vs. Birendrakumar Sahu (l ). Mr Lodha's contention that the question relating to disqualification of the appellant is still a living issue because the appellant is still an employee of the company and the contract between the company and municipality is still subsisting, is in my opinion, without any substance. The finding of the learned Civil Judge even affirmed by this Court that the appellant was disqualified would be based on the facts existing on the date of the nomination and it would have no relevance so far as it relates to a future point of time. It is possible that by the time fresh elections are held, the appellant or even the Company may not have any interest in the contract. Mr. Lodha laid considerable stress on the two applications presented to this Court for early hearing of the appeal. These applications, in my opinion, have no bearing on the point in controversy between the parties. Since the decision of the issue would be wholly ineffective so far as future elections are concerned, it would not be only unnecessary and pointless but also in expedient to decide such an issue. I am therefore of the opinion that since the term of the Municipality had expired, it has now become academe to consider whether on the date of the nomination, the appellant was or was not disqualified under sec. 26 (12) of the Act. The view which I have taken is entirely sufficient to dispose of this appeal and it is not necessary to enter into the merits of the case but I would like to advert to one point, namely, the correct interpretation of clause (12) of sec. 26 of the Act.
(3.) MR. MRidul, the learned advocate for the appellant, contends that the learned Civil Judge was entirely wrong in holding that because the appellant was an employee of the Company he was not only highly interested in the affairs of the Company but he was also interested in the contract between the Municipality and the Company. His further contention is that under sec. 10 of the Payment of Bonus Act, 1965, the employer is bound to pay minimum bonus irrespective of the fact whether there are profits or not. His further contention is that under sec. 11, an employee becomes entitled to a maximum bonus not as a matter of course but only if in any accounting year the allocable surplus exceeds the amount of minimum bonus payable to the employees under sec. 10. MR. MRidul contends that the statement of the appellant relied upon by the learned Civil judge simply clarifies the legal position in respect of the payment of the bonus. There is nothing to show in his statement that the Company after entering into the contract in the year 1969 ever earned profits or earned profits over and above the minimum bonus payable under sec. 10 of the Payment of Bonus Act. 1965. It is further contended that the appellant is one of several employees of the Company and similarly, the Municipality is one of the several consumers of the electricity generated by the Company. In these circumstances, when it is proved that the appellant has no share in the profits of the Company, the view taken by the learned Civil Judge that the appellant on account of his being an employee of the Company cannot claim to have no interest in the contract and further that his interest in the Company is bound to clash with his duty as member of the Municipality is wholly fallacious and unwarranted. It is argued that such a sentimental or sympathetic interest of the appellant in the contract cannot disqualify the appellant under sec. 26 (12) of the Act. On the other hand, it is argued by Mr. Lodha, the learned advocate for the respondent, that under sec. 26 (12) of the Act, the use of the words "employer and employee" are significant and they suggest that the interest of the candidate's "employer or employee" in the contract is sufficient to disqualify the candidate under sec. 26 (12) of the Act. He further contends that the purpose or object of prescribing several disqualifications enumerated in the fourteen clauses of sec. 26 of the Act is to ensure the purity of the administration of the Municipality and these clauses should not receive any narrow or restricted construction but should be given wide and liberal construction. The scheme of the Act goes to show that the person seeking election as a member of a Municipal Board must not only positively possess certain qualifications but he must also negatively not suffer from any disqualifications. These disqualifications are enumerated in clauses (1) to (14) of sec. 26 of the Act. If the case of any candidate seeking election as a member of a Municipal Board falls within the purview of one of the fourteen clauses enumerated in sec. 26, he will be declared disqualified to be elected as a member. Sec. 26 of the Act so far as it is material reads as under - "sec. 26. General disqualifications for members - A person, notwithstanding that he is otherwise qualified shall be disqualified for being chosen as a member of a Board - (l)to (ll) x x x x (12) who, save as hereinafter provided, has directly or indirectly, by himself or his partner, employer or employee any share or interest in any work done by order of such Board, or in any contract or employment with or under or by or on behalf of such Board, or (14) x x x x x x" The language of this clause is very near to the language used in sec. 12 (1) of the English Act - the Municipal Corporation Act of 1882, the relevant portion of which reads as follows - "a person shall be disqualified for being elected if and while he---------has directly or indirectly, by himself or his partner, any share or interest in any contract with by or on behalf of the Council. " The aforejaid sec. was interpreted by Lord Darling in Cox vs. Truscott (2) in the following words - "sec. 12 does not say that he shall be disqualified altogether. It provides : "a person shall be disqualified fur being elected and for being a councillor if and while he has interest, direct or indirect, in any contract by or on behalf of coun cil. " He is only disqualified, if he has an interest in the contract while he has such interest. He gets rid of his disqualification when he gets rid of the contract ; and the contract is got rid of if the contract is performed, that is, if there is no more to be done at the time of the acts. " Sec. 12 (1) of the Municipal Corporation Act of 1882 was again construed in England vs. Inglis (3 ). The learned Judge held that an 'interest' must be something more than a sentimental interest, such as arises from the natural love and affection of a father and his son. It need not, however, be only the possibility of a pecuniary advantage, it may equally be the likelihood of a pecuniary loss. The accruing benefit need not be direct. The possibility or even probability of an actual resulting benefit will be sufficient. As pointed out by Lindley L. J. in Nutton vs. Wilson (1889) 22 Q, B D 744, the object of sec. of this kind is to prevent the conflict between interest and duty that must otherwise inevitably arise. " Again, sec. 12 (2) (b) of the Bombay Municipal Boroughs Act, 1925, by and large, corresponds to sec. 26 of the Act. It reads as under - "sec. 12 (2) No person - (a) x x x x (b) who, save as hereinafter provided, has directly or indirectly, by himself or his partner any share of interest in any work done by an order of a municipality, or in any contract or employment with or under or by or on behalf of a municipality, may be a councillor of such municipality. " The aforesaid sec. came for interpretation in Rammayya Venkat Narsu Bura vs. The State of Bombay and another (4 ). In that case, the learned Judges posed the question whether the second respondent, namely, Shriniwas who was elected a councillor of the Municipality of Ahmednagar can be said to have direct or indirect interest in the employment of his wife with or under the municipality within the meaning of sec. 12 (2) (b ). Their lordships placed reliance on an earlier decision in Champaklal Parikh vs. Mahendra Govindlal Choksi Special Civil Application No. 1807 of 1955 decided on 7-12-55) by Chagla C J. and Dixit J.), where a son was wanting to be a Councillor of the Petliad Municipality and his father was a pleader representing that municipality in various cases of assessment. It was observed therein. "in our opinion, the interest here is not the interest which a man may have in the prosperity of his friend. Here the interest is clearly sentimental or emotional. When you have a person living jointly with his father, it seems to be inarguable that the son's interest in the prosperity of his father is purely sentimental or emotional, If the father earns more, he has more to spend on the family. His prosperity must affect the position of the son and the interest that the son ha in the prosperity of his father is clearly a materail or a substantial interest. " In Rammayya's case (supra), the above observations were followed and it was held that looking to the close relationship between the husband and wife, the husband Shri-niwas had a substantial interest in the employment of his wife and therefore he suffered from disqualification under sec. 12 (2) (b) of the Bombay Municipal Boroughs Act, 1925. ;