JUDGMENT - (1) In the general election held in 1957, one Shrinivas 2nd respondent was elected a Councillor of the Municipality of Ahmednagar. Thereafter he was elected a member of the standing Committee and the Chairman of the Sanitary Committee. In a general meeting of the Councillors held after the election, certain members of the Municipality were also elected to represent the Municipality on the School Board constituted under the Bombay Primary Education Act of 1947. It was said that the 2nd respondent by reason of his being an influential member of the Municipality, was in a position to wield considerable influence in the selection of the members of the School Board.

(2) It is an undisputed fact that the wife of the 2nd respondent has been working as a teacher for the last several years in School No. 14 conducted among other schools by the Municipality. The petitioner, who is a voter, alleged that the 2nd respondent has a direct interest in her employment with the Municipality and therefore if the 2nd respondent has a direct interest in her employment with the Municipality and therefore if the 2nd respondent continues to be a Councillor there would be a conflict between his duty as a Councillor and his interest in a furtherance of his wifes interests as an employee of the Municipality.

(3) The petitioner presented an application to the Collector, Ahmednagar District, stating therein the aforesaid facts and praying that it should be declared that respondent No. 2 became disqualified to remain as a Councillor. It was contended on behalf of the 2nd respondent that the words "becomes subject to any disqualification incurred after the election and therefore since the wife of the 2nd respondent was employed as a teacher several years before the election, S. 28 did not apply and the 2nd respondent could not be declared as having been disqualified. It seems to have also been contended that the petitioner ought to have raised an objection to the nomination of the 2nd respondent as a candidate in the election under S. 12(2)(b), that it would be that section that would apply to the facts of the case and that not having done so, the petitioner was was not entitled to ask for a declaratio under S. 28 of the Act.

(4) The Collector by his order dated 5-7-1958 negatived these contentions and observed:

"It clearly means that even if the disqualification earned by an intending councillor has been overlooked during the scrutiny of Nominations a subsequent remedy is provided for such disqualification in S. 28. If this is not true if will be possible for Councillor to temporarily abstain from acquiring disqualifications and then remain as Councillors for the period for which the Municipality is constituted. This interpretation is therefore too far fetched besides being illogical."

(5) The Collector held that the 2nd respondent was disqualified as a Councillor, and declared that a vacancy had occurred in the Municipality within the meaning of S. 28(2) of the Act. In the appeal filed by the 2nd respondent against the order of the collector the Government of Bombay, by their order dated 22-7-1958, set aside the Collectors order and held that the 2nd respondent was entitled to continue to be a Councillor observing that S. 28(2) could apply only to cases where a disqualification occurs after the election and not to a pre-existing disqualification.

Shelat, J.

(After stating the facts, the judgment proceeded).

(6) Two questions have been raised by Mr. Patel on behalf of the petitioner: (1) that the 2nd respondent has an interest in the employment of his wife as a teacher and (2) that S. 28(1) would apply even though the disqualification has commenced before the election. Mr. Rane, on the other hand, relied on the decision of the Supreme Court in Election Commission v. Saka Venkata Rao, (1953) SCR 1144 and contended on the strength of that decision that S. 28(1) cannot apply to a pre-existing disqualification.

(7) To appreciate these contentions, it is necess

Click Here to Read the rest of this document