- (1.) THIS is miscellaneous first appeal under sec. 19 (2) of the Rajasthan Town Municipalities Act, 1951 (hereinafter to be called the Act) against the order of the learned District Judge, Jhunjhunu, dated the 30th of October, 1956, setting aside the election of Local Municipal Board held on the 4th of February, 1955, and directing the District Magistrate, Sikar to hold fresh election.
(2.) LOCAL town was treated as one constituency from which eight members were to be elected under the Act and the rules made thereunder. Fifteen persons filed their nomination papers including the six appellants and respondents Nos. 1, 2 and 3. The nomination paper of Mahboob respondent No. 1 was rejected by the Returning Officer on the 18th of June, 1955 on the ground that he was not literate, nor capable of reading and writing Hindi or any other language and thus was not qualified to stand for election under Rule 13 (I) of the Rajasthan Town Municipalities Election Rules hereinafter to be called the Rules ). The election was held on the 4th of February, 1955. The six appellants and respondents Nos. 2 and 3 were declared elected. On the 12th of February, 1955 Mahboob respondent filed an election petition under sec. 19 (1) of the Act before the District Judge, Jhunjhunu, alleging inter alia that the petitioner was not illiterate, that the power granted to the Government under sec. 205 of the Act to make rules or orders for prescribing the qualification of voters and of candidates was invalid as such power could not be delegated to the Government and rule 13 (1) by which it has been made necessary for the petitioner to be literate was for that reason void, that the rule was also unreasonable and arbitrary, that the voters' list was not prepared in accordance with the provisions of the Act. It was also contended that Ganpat Rai Kabra appellant No. 4 was below 21 years of age on the date of the preparation of voter's list and his nomination paper was wrongly accepted in spite of objections to that effect. There were other grounds taken in the election petition but it is not necessary to set them out in detail for the sion of this appeal. The petition was contested by three of the appellants who denied the allegations made in the petition. They stated that Ganpat Rai Kabra was 21 years of age at all material times and his nomination paper was validity accepted and that, the petitioner was illiterate and was not capable of reading and writing Hindi and his nomination paper was rightly rejected. It was also contended that the applicant had not deposited the amount of Rs. 50/- as security for costs of the election petition within ten days of the result of election as required under the Act. The learned District Judge held that the nomination paper of Mahboob respondent No. i was rightly rejected by the Returning Officer. He further held that Ganpat Rai Kabra appellant No. 6 was less than 21 years of age on the 1st of March,' 1954 and so he could not be enrolled as a voter in the voter's list and on that account could not stand for election. The question whether the Government was validly delegated the power to make rule 13 (1) was left undecided, On the point of deposit of Rs. 50/- it was held that the petitioner was ready and willing to deposit the amount on the date of the filing of the petition and it was later on deposited in the treasury and there was sufficient compliance of sec. 19 (1) of the Act. Hence this appeal. An appeal under sec. 19 (2) lies to the High Court from the order of the District Judge provided it is only on a point of law. The decision of the learned District Judge on questions of facts are final. The learned District Judge has held that Mahboob respondent No. 1 was not capable of reading and writing Hindi and was not otherwise literate. It has been also held that Ganpat Rai Kabra was less than 21 years of age on the 1st of March, 1951. The findings of fact cannot be challenged in this appeal. The first point that has been urged on behalf of the appellants is that Mahboob respondent No. 1, cannot be said to be said to be a 'candidate who stood for election within the meaning of sec. 19 (1) of the Act as his nomination paper was rejected by the Returning Officer and he did not contest the election. There is a Division Bench authority of this Court on this point, of Tekchand vs. Banwari Lal (1), wherein it has been held: - "the expression 'candidate' in S. 19 must also be understood in its wider sense and must not be confined to a person whose nomination paper has been accepted and who, therefore, is in a position to stand for the poll. The expression 'candidate who stood for election' occuring in sec. 19 connotes not merely the eligible candidates who actually take part in poll but also those who file their nomination papers to contest the election but stand rejec ted by the Returning Officer and who have thus been thrown out at an earlier stage and are disabled from actually taking part in the poll. " That was a case in which the nomination paper of the petitioner in that case was rejected and he filed a writ petition against the rejection of his nomination paper. The petition was opposed on various grounds one of which was that the petitioner had another remedy by way of an election petition. It was contended on behalf of the petitioner in that case that as his nomination paper was rejected he cannot be said to be a person who had stood for election and he could not file an election petition under sec. 19 (1) of the Act. This contention was overruled and it was held that he had a right to maintain the election petition. That case is an authority for the proposition that even if the nomination paper of any candidate is rejected still he will be considered to be a candidate who had stood for election. The case so far as it goes is binding on me and I therefore, overrule the contention raised on behalf of the appellants that Mahboob respondent No. 1 cannot be said to be a person who stood for election as his nomination paper was rejected by the Returning Officer. The next question is whether 'candidate' in sec. 19 (1) (a) means a person who fulfils the qualification of being a candidate or not. A candidate in a restricted sense may mean a person who fulfils the conditions laid down for attaining the status of a candidate under the Act and the Rules, or it may be given a wider meaning as including any person who stood for election. The words 'election' and 'candidate' can be given a restricted or wider meaning according to the context in which they are used. The word 'election' has been given a wider meaning in various cases. Reference may be made to the case of N. P. Ponnuswami vs. The Returning Officer, Namakkal Constituency (2 ). Similarly the word 'candidate' has been interpreted in wider sense in connection with the filing of the election expenses. In Tekchand vs. Banwarilal (1) referred to above the word 'election' has been given wider meaning as including every stage of election. The observations quoted above if read in the light of the discussion in the case give wider connotation to the expression 'candidate who stood for election' by giving wider meaning to the word 'election'. In my humble opinion that case did not lay down that a person who had not the qualification to stand for election could be candidate within the meaning of sec. 19 (1 ). There is no discussion in that case on the point which I am called upon to determine in this case. According to Webster's New International Dictionary Second Edition, the word 'candidate' has the following meaning: - "one who offers himself, or is put forward by others as a suitable person or an aspirant or contestant for an. office, privilege, or honour. " Now such person is generally required to possess some qualifications. The word 'qualification' according to the same Dictionary means: - " (a ). . . . . . . . . . . . . . . (b) A condition precedent that must be complied with for the attainment of a status, the perfection of a right, etc , or for admission to an office, employment dignity, etc. the qualification of citizenship. " In the case before me the meaning of 'candidate' is to be decided with reference to the filing of an election petition. The election of a person to any post or office should not be lightly disturbed. This is both in accordance with justice and public policy. An election petition has the effect of setting aside an election and the filing of an election petition should not be encouraged. Justice to the successful candidate requires that the right which he has secured should not be taken away from him. Usually such a person has been in the arena, and has put a fight. He has not only spent time, money and labour but has also been an object of criticism fair or foul, at the bar of the public opinion. Such a person at least deserves that he should not be displaced except for sound reasons at the instance of a person who is either aggrieved because he was no given the opportunity to contest the election though he had the right to do so or at the instance of persons who file the election petition to serve the cause of the public. Public policy also requires that the verdict given by the electorate should not be lightly set aside. The holding of an election is by itself a matter which entails sufficient expenditure on the part of the Government. It also upsets the normal work of the administration. From the point of view of the voter it is apparent that they have to spend their valuable time without any award. Even in a municipal election work of the whole town remains practically suspended during the time polling is in progress. The public policy, therefore, also requires that an election should not be lightly disturbed. These considerations are such as impel me to say that the expression 'candidate' must be given the restricted meaning in sec. 19 (1) and should mean a person who fulfils the qualification of being a candidate under the Act and the Rules. This appears also to be the intention of the Legislature. Under sec. 19 (1) the right to file an election petition is given to a candidate who stood for election or to ten persons qualified to vote at that election. The right is not given to a man in the street or even to one single voter. Ten voters must act jointly to file the election petition. This shows that the Legislature intended to restrict the right. Now the person who is not qualified to stand as a candidate is no more than a voter if he is so. He alone has no right to file an election petition. Can it be taken that he has been given a right to file an election petition simply because he had filed a nomination paper to contest the election. In my humble opinion this should not be so otherwise it will make the provision of ten persons jointly filing the writ petition as merely nugatory. The word 'candidate' should receive an restricted meaning in sec. 19 (1) and should mean a person who fulfils the conditions precedent for standing for an election. If this meaning is not attached and wider meaning is given to the word 'candidate' it may be that a person, may he be a voter or not, shall have a right to file the election petition merely because he had filed the nominate on paper which he was not entitled to do. Taking an extreme example, suppose a foreigner who is not even the citizen of the land files a nomination paper knowing it full well that he shall not be nominated. Now if wider meaning is to be given to the word 'candidate' such a person shall have a right to file the election petition. I do not think that such is the intention of the Legislature Looking to the circumstances that in S. 19 (1), the expression 'candidate' who stood for election has been used for challenging the election by an election petition and also to the context that only ten voters acting jointly have been given the right to file the election petition, I am of humble opinion that a candidate who is not qualified under the Act or the Rules cannot file an election petition. I may refer to the following passage in Maxwell on Interpretation of Statutes Tenth Edition p. 18 in support of my conclusion: "general words admit of indefinite extension or restriction, according to the subject to which they relate and the scope and object in contemplation. They may convey faithfully enough all that was intended, and yet comprise also much that was not; or : be so restricted in meaning as not to reach all the cases which fall in the real intention. " There is yet another reason why restricted meaning should be given. In the form of candidature given in Schedule I of the Rules, there is a declaration to be made by the candidate which requires that the candidate should declare that he possesses all the qualifictions necessary for election to the Municipal Board, and that he is not subject to any of this disqualifications specified in the Act or under the Rules framed thereunder. A person who does not fulfil the necessary qualification shall be only giving a false declaration if he files the nomination paper saying that he possesses all the qualifications. It is difficult to conceive that the Legislature while on the one hand provided that only ten voters can come collectively to challenge the election on the other hand intended to lay down that even if a person makes such a false declaration, he enjoys the right of making an election petition. In my opinion it will be giving a premium to false declaration if such interpretation is accepted. For the aforesaid reasons I am of opinion that under sec. 19 (1) only a person qualified to stand for election and who stood for election can file an election petition. By this 1 should not be understood to say that a person whose nomination paper has been wrongly rejected has no right to file an election petition. Coming to the case law, I may refer to the case Harford vs. Linskey (3 ). That case at first sight appears to support the view that a person who has filed a nomination paper had the right to file an election petition. That was a case under Municipal Corporation Act, 1882 (45 & 46 Vict. G. 50)] By sec. 77 of that Act, 'candidate' was defined as follows : - "candidates' means a person elected, or having been nominated, or having declared himself a candidate for election. By sec. 88, an election petition may be presented. . . . . . . . . by a person alleging himself to have been a candidate at the election. " It was held that - "the petitioner of that case although disqualified for election and nomination, having in fact been nominated in proper form, was a 'candidate' within the meaning of sec. 77 and consequently entitled under sec. 88 to present petition for the purpose of questioning the election of the respondent. " It is obvious that that case was decided on the meaning given to the candidate under sec 77 and under sec. 88 made it competent for a person to file an election petition if such a person alleged himself to have been a candidate at the election. The decision was on the particular phraseology of those two sections, as is clear from the following observations of wright, J. : - "the question which we have now to decide depends primarily on the construction of sec. 88. The words 'a person alleging himself to have been a candidate' cannot of course mean that a mere allegation without any colour of foundation in fact would suffice. Such a merely false allegation would be properly dealt with in a summary way. But the words used seem designed to express something wider than absolutely valid candidature, and they are at any rate consistent with the view that any person who was in fact a candidate may present and maintain a petition, just as persons who voted in fact may do whether or not they had a right to vote. " In Harford's case the case, of Monks vs. Jackson, (1987) 1 C. P. D. 683 was referred to. In that case the petitioners were not held to be qualified to question the validity of the election as they were not duly nominated candidates. Monks vs. Jackson was distinguished in Harford's case on the ground that the petitioner in the later case was in fact nominated and his nomination was in regular form. Harford's case is not a case in which the candidate was suffering from any disqualification. The concluding observations in Harford's case also notice this distinction. The observations are as follows : - "our decision does not involve the proposition that in every case a person whose nomination has been rejected on the ground of disqualification, or want of qualification, can maintain a petition. We do not understand it to be laid down in the Bangor Case (13 App. Cas. 241) that a nomination cannot ever be rejected except for informality in the form or presentation of it. If the nomination paper is, on. the face of it, a mere abuse of the right of nomination or an obvious unreality, as for instance, if it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected, and no petition could be maintained in respect of its rejection. " In the present case, Mahboob respondent No. 1 suffered from a disqualification under the Rules. His nomination paper was not rejected for any of the reasons that it was not properly filled or that there was any defect in the filing of it. It was rejected on the ground that the person who filed it was disqualified to stand for election. The case before me is, therefore, one in which there was to be an abuse of right of nomination on the part of Mahboob respondent No. 1. He has, therefore, no right to maintain the election petition.
(3.) FACED with this difficulty it is argued on behalf of Mahboob respondent No. 1 that Rule 13 (1), which prescribes that every person who is on roll and is also capable of reading and writing Hindi or is otherwise literate shall be qualified to be a candidate is in valid in so far as it makes it necessary for a candidate possess the qualification of reading and writing Hindi or of being otherwise literate The rules were formed by the Government of Rajasthan in exercise of the power conferred by clauses (b) and (m) of sub clause 2 of sec. 205 of the Act, Sec. 205 (2) (b) (ii) so far as relevant runs as follows : - "sec. 205 (2) (b) (ii) particular, and without prejudice to the generality of the foregoing power, the Government may make rules or orders - (b) (i ). . . . . . . . . . . . . . . . . . . . . . . . (ii) for prescribing the qualifications of voters and of candidates. " It is therefore, obvious that in making Rule 13 (1) the Government was acting under sec. 205 (2) (b) (ii) and it was not acting inexcess of it. But it is urged that the Legislature should not have left the matter of prescribing the qualifications of voters and of candidates in the hands of the Government. It is contended that prescribing the qualifications of voters an of candidates was of vital importance which could not be delegated by the Legislature to some other authority. In my humble opinion, the power to make rules, bye-laws or regulations as matters specifically referred to in enactment can be transferred by the Legislature to the competent body who has to carry out the provisions of the Act. Giving of such powers does not mean effacement of the Legislature itself. In the present case under Chapter II of the Act, provisions have been made for the constitution of the Municipal Boards in the State of Rajasthan. Under sec. 8 it is provided that in every municipality there shall be a municipal board. Under sec. 9 provision has been made as to who shall be the members of the municipal boards. It has been laid down that every municipal board shall consist of such number of members wholly elected or partly elected and partly nominated, as may be fixed under sec. 10. Under sec. 10, Government has been given the power to determine the number of members and to fix proportion of the members who shall be nominated for each municipal board. Under sec. 12 general disqualifications for becoming a member are mentioned. Thus the Act lays down the policy for the election of a member to the municipal board. Having laid down the policy, the Legislature could leave to the Government how that policy was to be carried out. In the matter of the election of a municipal member, the Legislature has left to the Government to prescribe further qualifications for a candidate in accordance with the exigencies of the situation. I may refer to the observations of Mukerjee J. In Re Art. 143, Constitution of India, etc. (5 ). : - "the decisions referred to above clearly lay down that the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of, this essential function would amount to abdication of legislative powers in the eye of law. The policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication, but as the discretion vests with the legislature in determining whether there is necessity for delegation or not, the exercise of such discretion is not to be disturbed by the Court except in : clear fundamental princi ples and in respect to the powers of the legislature the constitutional position in India approximates more to the American than to the English pattern. " The Government was the best Judge to decide as to what should be the qualifications for a member of the municipal board keeping in view the conditions prevailin|g in the State and the Legislature instead of examining the question in meticulous details left it to the Government. I am humbly of opinion that by doing so it cannot be said that the Legislature has effaced itself and the rules made by the Government are made by the virtue of the power which could not be conferred. Nor can rule 13 (1) be said to be arbitrary and unreasonable. A man if literate, stands in a better position for carrying out the duties as a member of the municipal board than one who is illiterate. If the Government prescribed such qualifications, I presume it was only acting in the best interests of the municipal board. It cannot be said that such a qualification was unreasonable or arbitrary. It is argued that even for the election of the Lok Sabha or a State Legislature such qualification is not insisted upon. It may be so but what I have to judge is whether the action of the Government on the face of it was so unreasonably and arbitrary that it could not act under the powers conferred on it. I do not think that this can be said of the act of the Government in the present case. Rule 13 (1) was valid and it cannot be challenged for any of the reasons urged on behalf of Mehboob respondent No. 1. I, therefore, find that Mehboob respondent No 1 had no right to challenge the election of the Municipal Board held on the 4th of February, 1955. He could file election petition in so far as his nomination paper was rejected only to show that it was wrongly rejected, but it has been held by the learned District Judge that it was rightly rejected. On this finding the District Judge should have dismissed his election petition and should not have proceeded further to declare the whole election void. I, therefore, accept the appeal, set aside the order of the learned District Judge, Jhunjhunu, dated the 30th of October, 1956 holding that the election of the Municipal Board held on the 4th of February, 1955 was void and order that the election petition of Mahboob respondent No. 1 be dismissed. I further hold that the election held on the 4th February, 1955 could not be challenged by him and it should not be set aside. Fresh elections need not be held. The cost of the appellants in this appeal and of appellants Nos 1, 4 and 6 who contested the election petition in the court of the District Judge Jhunjhunu shall be born by Mahboob respondent No.1. ;