Judgment

PATHAK, J.:- This appeal by special leave is directed against the judgment of the Bombay High Court maintaining an order of the District Court, Poona by which the appellants election as President of the Bhor Municipal Council was set aside on an election petition filed by the respondent.

2. The appellant stood for election to the office of President of the Bhor Municipal Council. He filed his nomination paper on 21st October, 1974, and the election was held on 17th November, 1974. The appellant was declared elected the next day and the result of the election was published in the Government Gazette on 25th November, 1974.

3. The first respondent filed an election petition before the District Court, Poona challenging the appellants election. He alleged that the appellant had been convicted on 26th December, 1973 by the Judicial Magistrate, Bhor under Section 16 of the Prevention of Food Adulteration Act and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/-. Accordingly, he said, by virtue of Sec. 51 (2) read with Section 16 (1) (a) of the Maharashtra Municipalities Act, 1965, the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Maharashtra Government made an order under clause (a) of sub-sec. (1) of Section 16, Maharashtra Municipalities Act, 1965 ("the Act") declaring :

"In exercise of the powers conferred by clause (a) of sub-section (1) of Section 16 of the Maharashtra Municipalities Act, 1965, the Government is pleased to order that the disqualification incurred by Shri Amrutlal Chunilal Raval, resident of Bhor, Tehsil Bhor, District Poona should remain in force for a period of six months only from his release on 26th December. 1973.

By order and in the name of the Governor of Maharashtra.

Sd/- M. N. Tadkod,

Desk Officer."

4. The election petition was allowed and the election of the appellant was set aside. The appellant filed a writ petition in the Bombay High Court against the order setting aside his election, but the writ petition was dismissed by the High Court on 21st March, 1978.

5. In this appeal, the only point pressed by the petitioner before us is that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper.

6. Sub-section (2) of Section 51 of the Act provides that every person qualified to be elected as a Councillor under Section 15 shall be qualified for election as President. Sub-section (1) of Section 15 of the Act provides that every person, whose name is included in the list of voters maintained under Section 11 and who is not disqualified for being elected a Councillor under this Act or any other law for the time being in force, shall be qualified, and every person whose name is not included in the list or who is so qualified, to be elected as Councillor at any election. Section 16 (1) (a) of the Act provides :

"16. (1) No person shall be qualified to become a Councillor whether by election, co-option or nomination, who

(a) has been convicted by a Court in India of any offence the maximum punishment for which (with or without any other punishment) is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the State Government may allow in any particular, has elapsed since his release; or

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7. The appellant was convicted on 26th December, 1973 for an offence under the Prevention of Food Adulteration Act, which, it is not disputed, fell within the terms of clause (a) of sub-section (1) of Section 16. He was sentenced to imprisonment until the rising of the court. Because of the conviction and sentence he suffers the disqualification contemplated by clause (a), and the disqualification enures for a period of five years from the date of his re