Annulment of insolvency under Section 43 of the Provincial Insolvency Act effaces the state of insolvency, and a person whose insolvency has been annulled is not an undischarged insolvent within the meaning of Section 15 (2) (b) of the Andhra Pradesh Municipalities Act 1965.

UPENDRALAL WAGHRAY, J.

( 1 ) THIS writ petition has been referred to a Bench by Amareswari J. , as there is no direct decision of this Court on the question raised, and there is conflict in some decisions of the Madras High Court and also a judgment of the Kerala High Court.

( 2 ) THE principal question for consideration is "whether a person who was adjudicated an insolvent and subsequently due to his failure to apply for discharge in time, the said adjudication was annulled, is disqualified for election as a Councilors of Municipal Council in terms of Section 15 (2) (b) of the Andhra Pradesh Municipalities Act 1965?"

( 3 ) THE facts giving rise to this writ petition lie in a very narrow compass. The writ petitioner and the 2nd respondent were the only contestants for the election of a Councilor from a general seat of the Ninth Ward of Tuni Municipality in the election which took place on 9th Aug. 1981. After a poll, the writ petitioner was declared to have been elected. Thereafter, the 2nd respondent herein challenged the said election under the provisions of the Andhra Pradesh Municipalities Act 1965 by filing Original Petition 217 of 1981 on the file of the Election Tribunal viz. , the Court of the Principal Subordinate Judge, Kakinada. The election was challenged on the ground that the returned candidate was disqualified from contesting the election in view of the provisions of Section 15 (2) (b) of the Andhra Pradesh Municipalities Act 1965 because he was an undischarged insolvent. The returned candidate was adjudicated an insolvent in O. P. 20 of 1976 on the file of the Court of the Subordinate Judge, Kakinada by its order dated 1-4-1977. He did not apply for a discharge and subsequently, by an order dated 27-9-1980 (Ex. A-4), the Court annuled the insolvency under Section 43 of the Provincial Insolvency Act, since he did not apply for discharge within the stipulated time nor did he apply for extension of time. In addition to this, some corrupt practices were also alleged against the returned candidate in the election petition. The election petition was contested by the returned candidate on various grounds including that he was not an undischarged insolvent within the meaning of the Provincial Insolvency Act and he was, therefore, not disqualified. It was further contended by the returned candidate that, as the objection about disqualification was not raised at the time of scrutiny of the nomination papers, the election-petitioner was precluded from raising this dispute in the election petition.

( 4 ) THE Election Tribunal, after enquiry, by its order dated 23/08/1982 held that the returned candidate was disqualified and hence his election was set aside, and as there were only two contestants, it gave a further declaration that the election-petitioner was elected to the said seat. On the question of corrupt practices, the Tribunal found against the election-petitioner. The returned candidate has challenged the said order in the present writ petition.

( 5 ) SRI Poornaiah, the learned counsel for the writ petitioner, has urged three grounds in support of the writ petition viz. , (i) the conclusion of the Election Tribunal that the returned candidate was disqualified under Section 15 (2) (b) of the Andhra Pradesh Municipalities Act 1965 is not correct; (ii) in view of the fact that the objection about disqualification of the returned candidate was not raised at the time of scrutiny, the said objection cannot be raised in the election petition; and (iii) the Tribunal has erred in granting a declaration that the election-petitioner was declared to have been duly elected.

( 6 ) WE shall first deal with the principal contention viz. , whether the election of the returned candidate is liable to be set aside on the ground he is disqualified in terms of Section 15 (2) (b) of the Andhra Pradesh Municipalities Act?

( 7 ) THE learned counsel for the petitioner has referred to the relevant provisions if the Andhra Pradesh Municipalitie

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