Judgment

B. K. MUKHERJEA, J. : This appeal, which has come before us on special leave, is directed against a judgment of a Division Bench of the Mysore High Court dated the 2nd February 1953, by which the learned Judges reversed, on appeal, an order dated the 10th October 1952 made by the Sub-Judge, Tumkur, sitting as Election Commissioner, in Election Mis. Case No. 1 of 1952-53.

2. The material facts lie within a brief compass and are for the most part uncontroverted. There was an election held for the Town Municipal Councillorship of the Gubbi town, in the State of Mysore, in March 1952, and the appellant and the respondent before us were the two rival candidates for the seat. As the time of the scrutiny of the nomination papers, objection was taken by the respondent to the nomination of the appellant as a candidate, on the ground, that he was holding an office of profit under the Government at that time, as the Chairman of Gubbi Taluk Development Committee, and was hence disqualified for being chosen as a Councillor under section 14 of the Mysore Town Municipalities Act, 1951 (hereinafter called The Act ).

The objection was overruled and both the candidates went to the poll. As a result of the volting, the appellant was declared elected and there-upon the respondent filed an election petition before the Sub-Judge, Tumjur, who was the Election Commr. constituted under the Act, praying that the election of the appellant might be set aside on the ground of his being a disqualified candidate within the meaning of section 14(1)(A)(a)(iii) of the Act. There was a further prayer that the respondent being the only other rival candidate should be declared duly elected at the election held in March 1952.

3. The Sub-Judge, by his order dated the 10th October 1952, dismissed the petition, holding inter alia , that the appellant, who as non-official Chairman of the Taluk Development Committee was entitled to draw only a small fee of Rs. 6 per sitting, could not be said to hold an office of profit under the Government as contemplated by section 14 of the Act.

4. Against this decision, the respondent took an appeal to the High Court of Mysore which came up for hearing before a Division Bench consisting of Medapa, C. J. and Vasudevamurthy, J. The learned Judges by their judgment dated the 2nd February 1953 allowed the appeal and reversed the judgment of the Election Commissioner. The election of the appellant was set aside and the respondent was declared to be duly elected. It is the propriety of this judgment that has been challenged before us in this appeal.

5. The contentions raised on behalf of the appellant are of a three-fold character. It has been contended in the first place that the election petition filed by the respondent was misconceived and not tenable in law, and his remedy, if any, lay in and appeal to the Government which was the only authority competent to decide and pass final orders on questions relating to disqualification of candidates under section 14 of the Act.

The second point taken is that on the admitted facts of this case the appellant could not be said to be holding an office of profit under the Government and was consequently not subject to any disqualification for being elected a Councillor. The third and the last contention is that even if the election of the appellant could be set aside, it was imperative under the provisions of the Act that a fresh election should be held; the High Court consequently could not have declared the respondent to be the duly elected candidate.

6. So far as the first ground is concerned, the learned counsel for the appellant has placed considerable reliance upon section 14 of the Act and his contention is that the provisions of section 14 and those of section 20 of the Act are mutually exclusive. It is said, that the ground upon which the respondent assailed the validity of the election of the appellant is one which comes directly under section 14 of the Act and can be dealt with only