JUDGMENT - (1) The petitioner is a resident of Islampur. An election for two seats in the Islampur Municipality was held on 5-11-1957. The petitioner and opponents Nos. 3 to 6 stood for the election. The nomination papers were filed on 10-10-1957. The petitioner objected to the nomination papers of opponents Nos. 3 and 4, Ganpat Ssmbhaji and Baburao yeshwant. He contended that they were disqualified from standing for election under clause (ea) of S. 15(1) of the Bombay District Municipal Act, which applies to the Islampur Municipality. Under this clause, no person may be a councillor, who fails to pay any arrears of any kind due by him to the Municipality within three months after a special notice in this behalf has been served upon him. The objection raised by the petitioer was overruled by the Returning Officer. Opponents Noz. 5 and 6 withdrew their candidature. At the time of the election there were, therefore, obly three candidates. Opponents Nos. 3 and 4. He challenged the election on several grounds, out of which we are concerned, in the present application, with only three. He alleged that these opponents were disqualified from standing for election under clause (ea) of S. 15(1) of the Act. He also contended that some of the persons, whose names were shown in the voters list, were disqualified to vote. He also alleged that some of them were not residents of Ward III, in which the election was held, and as such their votes should not have been taken into considereation. Opponents Nos. 3 and 4, on the other hand, contended that the decision given by the Returning Officer, accepting their nomination appears, was final and could not be challenged in an election petition filed under S. 22. They also contended that questions about disqualification of particular voters could not be gone into in this petition. the learned Assistant Judge framed several issues, out of which he tried the following as preliminary issues :

I (a) Whether it is open to the petitioner to challenge the validity of the nomination papers of Opponents Nos. 2 and 3 (Opponents Nos. 3 and 4 in the present application) in the present proceeding?

II (b) Whether it is open to the petitioner to contend that opponents Nos. 2 and 3 were disqualified under S. 15(1) para (ea) of the Bombay District Municipal Act to contest the election?

III Whether the petitioner can challenge that voters as mentioned in Schedule A were below the age of 21 on 1-3-1957, and if so, whether he proves that they were below the age of 21 years on the said date and whether the votes recorded by them can be held as invalid votes?

IV Whether the petitioner can challenge that voters as mentioned in Schedule B were not entitled to be registered as voters in the voters list for reasons mentioned in para 3(e) of the petition and it yes, whether he proves that they were not entitled to be registered as voters?

V Whether it is open to the petitioner to contend that persons whose names are given in schedule C were not entitled to vote in the constituency in question, and, if yes, whether he proves the same?

The learned Assistant Judge answered all these issues in the nagative. Against the order passed by him, the present Special Civil application is preferred.

(2) The first point, which has been urged by Mr. Suktankar, who appears on behalf of the petitioners is that the learned Assistant Judge was wrong in holding that the validity of the nomination papers, filed by opponents Nos. 3 and 4, cannot be challenged in the election petition filed under S. 22 of the Act. Sub-section (1) of S. 22 provides:

"If the validity of any election of a councillor is brought in question by any person qualified either to be elected or to vote at the election to which such question rerers, such person may, at any time within ten days after the date of the declaration of the result of the election, apply to the district Judge of the district within which the election has been or should have been held."

Sub-section (2) of this

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