Judgement

VENKATACHALIAH, J. :- This appeal is by the returned-candidate, who was elected as a Member of the Deolali Cantonment Board ("Board") from Ward No. III at the election held on 22-12-1985 and whose election has been set aside by the Extra Joint District Judge, Nasik, in Election Petition No. 12 of 1985 at the instance of respondent No. 3 who was another contesting candidate.

The appellants Writ Petn. No. 1418 of 1987 before the High Court of Judicature at Bombay assailing the said order of the District Judge having been dismissed in limine on 17-3-1987. Appellant seeks special leave to appeal against the order of the High Court.

2. Special leave is granted. The appeal is taken up for final hearing, heard and disposed of by this judgment. We have heard Shri Ram Jethmalani, Senior Advocate for the appellant and Shri Bhasme, Senior Advocate for the respondent No. 3. Shri G. Ramaswamy, learned Solicitor-General appeared for the Cantonment Board, respondent No. 1.

3. The material facts necessary for determination of the controversy in this appeal may briefly be stated :

Appellant and respondent No. 3 were candidates at and contested the election for Membership from Ward No. I I of the Deolali Cantonment Board constituted under the Cantonments Act, 1924. Act). Palling took place on 22-12-1985. The results of the election were declared on 23-12-1985. The appellant having secured 771 votes as against 749 votes secured by respondent No. 3, the appellant was declared elected.

By an election petition filed before the District Judge Nasik under R. 43 of the Cantonment Board Election Rules, framed under the Act. respondent No. 3 called in question the appellants Selection on the ground that appellant suffered from, and was under, a disqualification for being chosen as and for being a member of the Board under S. 28(2)(h) of the Act, inasmuch as appellant had failed to pay arrears of the rent due and owing by him to the "Board" in respect of a certain land, taken on lease by the appellant from the Board under deed dated 28-6-1982. It was further alleged that the appellant was also, likewise, in default in the matter of payment of arrears of electricity charges in respect of a pump installed in the leased-land.

The learned District Judge on an appreciation of the evidence held that appellant did suffer from the disqualification under S. 28(2)(h) in respect of the lease amount and set aside the election. Appellants writ petition challenging the order of the District Judge has been dismissed in limine by the High Court.

4. In support of the appeal. Shri Ram Jethmalani contended that the view taken by the learned District Judge suffers from a basic fallacy in that the learned District Judge had, quite erroneously, assumed that the existence of appellants pecuniary obligation to the Board which learned counsel conceded for purposes of the argument ipso facto, satisfied the requirements of the attracted S. 28(2)(h). Learned counsel urged that the mere existence of indebtedness, without more, did not attract or incur the disqualification; the disqualificatory element being not merely the existence of any arrears but the existence of arrears coupled with non-payment "within 30 days after the notice in this behalf has been served upon him." Learned counsel submitted that though, as admitted by the Board, no notice envisaged by S. 28(2)(h) was ever served on the appellant, the learned District Judge felt persuaded to the view that the very knowledge and awareness on the Part or the appellant as to the existence of the liability satisfied the requirement of notice under, arid for purposes of, the said S. 28(2) (h). This, the learned counsel submitted, was an extraordinary way of looking at a provision in an election law attaching disqualification to a citizen.

Shri Bhasme, learned counsel for respondent No. 3, seeking to support the order of the learned District Judge, submitted that the view taken accords with the need to maintain purity of the ele