Mangoo Singh Vs. The Election
Tribunal, Bareilly & Ors [1957] INSC 69 (17 September 1957)
DAS, S.K.
BHAGWATI, NATWARLAL H.
GAJENDRAGADKAR, P.B.
CITATION: 1957 AIR 871 1958 SCR 418
ACT:
Election dispute-Municipal election-Disqualification
for membership-Arrears of tax-Payment after nomination but before
poll-"For being chosen as", "Demand", meaning of-U. P.
Municipalities Act, 1916 (U.P. 11 of 1916), ss. 13-D, cl. (g), 166, 168 U. P.
Municipalities (Conduct of Election of Members) Order, 1953, para.22(2).
HEADNOTE:
The appellant was elected to the Municipal
Board under the U. P. Municipalities Act, 19i6. He was in arrears in the
payment of Municipal tax in excess of one year's demand, to which s. 166 of the
Act applied, at the time of the filing of nominations, but made the payment
before the date of the poll. Under section 13D, cl. (g) of the Act "a
person shall be disqualified for being chosen as, and for being, a member of a
board if he is in arrears in the payment of Municipal tax or other dues in
excess of one year's demand to which s. 166 applies, provided that the disqualification
shall cease as soon as the arrears are paid." On an election petition
filed by a defeated candidate, the election was set aside by the Election
Tribunal on the ground that the appellant was not entitled to the benefit of
the proviso to s. I3-P. cl. (g) of the Act. It was contended for the appellant
that the relevant date for the operation of the disqualification was the date
of the poll and that, in any case, he did not come within the mischief of the
disqualification clause in that section, as a bill for payment of the tax was
not presented to him, nor a notice of demand served on him under s. 168.
Held:(1) that if a person is disqualified on
the date of nomination, he cannot be chosen as a candidate within the meaning
of s. 13-D of the U. P. Municipalities Act, 19i6, because the disqualification
attaches to him on that date and the process of choosing consists of a series
of steps starting with nomination and ending with the announcement of the
election. The wiping off of the 419 disqualification has no retrospective
effect, and the disqualification which subsisted on the date of the nomination
cannot cease to subsist on that day by reason of a subsequent payment of the
arrears of Municipal tax.
Chatturbhuj Withaldas jasani v. Moreshway
Parashram and Others, (1954) S.C.R. 817, N. P. Ponnuswami v. The Returning
Officer, Namakkal Constituency and Others, (1952) S.C.R. 218 and Harford v. Linskey,
(1899) 1 Q.B. 852, relied on.
Ahmed Hossain v. Aswini Kumar, A.I.R. 1953
Cal. 542, approved. (2)that the expression "to which s. 166 applies"
in s. 13-D, cl. (g) of the Act merely describes the nature or type of dues
mentioned in that section and that the effect is that the demand referred to in
s. 13-D, cl. (g) must be of that nature or type.
(3)that the word 'demand" in s. 13-D,
cl. (g) of the Act means "claim" or "due" and only refers
to the amount of arrears or dues on which the disqualification depends and does
not attract the operation of s. 168.
CIVIL APPFLLATE JURISDICTION: Civil Appeal
No. 8 of 1957.
Appeal from the judgment and order dated the
30th August, 1955, of the Allahabad High Court in Special Appeal No. 8 of 1955
arising out of the judgment and order dated the 10th December, 1954, of the
Single Judge of the Allahabad High Court in Civil Misc. Writ No. 1245 of 1954.
R. S. Narula, for the appellant.
B. B. Tawakley and K. P. Gupta, for the
respondent.
1957. September 17. The following Judgment of
the Court was delivered by S. K. DAS, J.-This appeal has been preferred to this
Court on the strength of a certificate granted by the High Court of Allahabad
on February 3, 1956, to the effect that the case is a fit one for appeal to the
Supreme Court under Art.
133(1)(c) of the Constitution. The question
that falls for decision is the true scope, meaning and effect of cl, (g) of s.
13-D of the U. P. Municipalities Act, 1916 (U. P. II of 1916), hereinafter
referred to as the Act.
The relevant facts, which are not now in
dispute, are these.
There was a general election to the Municipal
54 420 Board of Bareilly in October, 1953. The appellant, Mangoo Singh, and
respondent No. 3, Imdad Husain, along with several others, were candidates at
the said election from Ward No. 15. The date fixed for filing nominations was
October 5, 1953, and the date for scrutiny of the nominations filed was October
7, 1953. The appellant and respondent No. 3 both filed their nominations on the
due date, and at the time of scrutiny lmdad Husain raised an objection to the
nomination of the appellant on the ground that the latter was disqualified
under cl. (g) of s. 13-D of the Act for being chosen as a member of the said
Municipal Board because he was in arrears in the payment of municipal tax in
excess of one year's demand. This objection was dismissed, and the nomination
of the appellant was accepted by the Assistant Returning Officer. The poll took
place on October 26, 1953, and the counting of votes was done on October 29,
1953.
Four persons were to be elected from the said
Ward, and the appellant was the third in the list by reason of the number of
votes which he had obtained. Imdad Husain was fifth in the list. Accordingly,
the appellant was declared as one of the returned candidates, and lmdad Husain
was at the top of the unsuccessful candidates. lmdad Husain then filed an
election petition to set aside the election of the present appellant on various
grounds. The only ground with which we are now concerned is the
disqualification under cl. (g) of s. 13-D of the Act. This election petition
was heard by the Election Tribunal and by its judgment dated October 20, 1954,
the Election Tribunal held that the appellant was in arrears in the payment of
municipal tax in excess of one year's demand to which s. 166 of the Act applied
and, therefore, came under the disqualification in cl. (g) of s. 13-D of the
Act It further held that the payment of a sum of Rs. 115-3-0 on October 10,
1953, five days after the date fixed for the filing of nominations, did not
wipe off that disqualification, and the appellant was not entitled to the
benefit of the second proviso to s. 13-D of the Act. It may be here stated that
the Election Tribunal also held that no bill for payment of the tax was
presented to the appellant 421 as required by s. 166, nor was any demand notice
served on him as required by s. 168 of the Act. On the above findings, the
Tribunal allowed the election petition, set aside the election of the appellant
and declared a casual vacancy under cl. (a) of sub-s. (2) of s. 25 of the Act,
which vacancy was subsequently filled up by the election of the third
respondent on April 5, 1955. The next general election in the Municipality is
due in October, 1957.
Against the decision of the Election
Tribunal, the appellant moved the High Court of Allahabad for the issue of a
writ under Art. 226 of the Constitution. The main point urged by the appellant
was that the Election Tribunal was in error in its interpretation of cl. (g) of
s. 13-D of the Act. Chaturvedi J. who dealt with the application of the
appellant, agreed with the view of the law as expressed by the Election
Tribunal and dismissed the application. The appellant then preferred an appeal
to a Division Bench of the said High Court. This appeal was also dismissed by
Agarwala and Sahai JJ. by their judgment dated August 30, 1955. The appellant
then moved and obtained a certificate of fitness under Art.
133(1)(c) of the Constitution from the said
High Court.
Learned counsel for the appellant has not
contested any of the findings of fact arrived at by the Election Tribunal and
has confined his submissions to the question of the true construction of cl.
(g) of s. 13-D of the Act. Therefore, it is necessary to read that section, in
so far as it is relevant for our purpose:
" 13 -D. Disqualifications for
membership.-A person, notwithstanding that he is otherwise qualified, shall be
disqualified for being chosen as, and for being, a member of a board if he(a)
........................................................
(b)........................................................
(c)........................................................
(d)........................................................
(e)........................................................
(f)........................................................
422 (g) is in arrears in the payment of
municipal tax or other dues in excess of one year's demand to which section 166
applies:
Provided further that in the case of (g) the
disqualification shall cease as soon as the arrears are paid." The first
contention of learned counsel for the appellant relates to and arises out of
the expression " for being chosen as " occurring in the section. The
argument is this.
It is submitted that a person is "chosen
as a member of a board " when the poll takes place and a majority of
voters vote for him as their chosen candidate ; therefore, the relevant date
for the operation of the disqualification is the date of the poll, and inasmuch
as on October 10, 1953, which was several days before the date of the poll, the
appellant was no longer in arrears of municipal tax in excess of one year's
demand by reason of the payment made on that date, the disqualification did not
attach to him on the date of the poll. We are unable to accept this argument.
It is worthy of note that an identical
expression "shall be disqualified for being chosen as " occurs in
Art. 102 of the Constitution and s. 7 of the Representation of the People Act,
1951. This expression occurring in s. 7 of the Representation of the People
Act, 1951, was considered by this Court in Chatturbhuj Vithaldas Jasani v.
Moreshwar Parashram and Others (1). In that case the question was when the
disqualification mentioned in cl. (d) of s. 7 of the Representation of the
People Act, 1951, arose and it was held that the date for putting in the
nominations was one of the crucial dates. On this point, the following
observations made in that case are apposite :
"Now the words of the section are
"shall be disqualified for being chosen". The choice is made by a
series of steps starting with the nomination and ending with the announcement
of the election. It follows that if a disqualification attaches to a candidate
at any one of these stages, he cannot be chosen." (1) [1954] S.C.R. 817,
821.
423 It was pointed out in N. P. Ponnuswami v.
The Returning Officer, Namakkal Constituency and Others (1) that ' election' is
a continuous process consisting of several stages and embracing many steps of
which nomination is one; nomination is the foundation of a candidate's a right
to go to the polls and must be treated as an integral part of the election. If
a person is disqualified on the date of nomination, he cannot be chosen as a
candidate because the disqualification mentioned in s. 13-D attaches to him on
that date.
This is also clear from para. 22(2) of the U.
P. Municipalities (Conduct of Election of Members) Order, 1953. That sub-para.
states" 22 (2)-The Returning Officer shall then examine the nomination
papers and shall decide all objections, which may be made to any nomination,
and may, either on such objection or on his own motion, after such summary
inquiry, if any, as he thinks necessary, refuse any nomination on any of the
following grounds:
(a) that the candidate is not qualified to be
chosen to fill the seat under the Act; or (b) that the candidate is
disqualified for being chosen to fill the seat under the Act; or (c)that there
has been any failure to comply with any of the provisions of paras. 16 and 17;
or (d) that the signature of the candidate or any proposer or seconder is not
genuine or has been obtained by fraud." If the disqualification of cl. (g)
of s. 13-D of the Act is to come into operation only oil the day of the poll,
then it is quite unnecessary for the Returning Officer to consider that
disqualification at the time of scrutiny ; and indeed it will be improper for
him to refuse nomination on the ground of such disqualification. Clause (b) of
para. 22 (2) uses the same expression "disqualified for. being
chosen"showing clearly enough that the starting point of the act of
choosing is not on the date of the poll only. The process of choosing commences
on the date of filing nominations.
(1) [1952] S.C. R. 218.
424 We now turn to the second proviso to s.
13-D. The submission of learned counsel for the appellant is that, as stated in
the proviso, the disqualification is transient and ceases to operate as soon as
the arrears are paid; Oil October 10, 1953, the appellant was no longer
disqualified and, therefore, he could be chosen on the date of the poll, that
is, on October 26, 1953. The argument is that in the case of such a transient
disqualification, the second proviso must be so read as to mean that a
disqualification subsisting on the day of nomination can be wiped off
completely by subsequent payment of arrears of tax; otherwise a disqualification
at the time of nomination will disentitle a person to stand for election ; even
though it ceases to operate before the day of the poll. This argument also we
cannot accept as correct; it is really the first argument in a different form.
The wiping off of the disqualification under the second proviso has no
retrospective effect, and the disqualification which subsisted on the day of
filing nominations did not cease to subsist on that day by reason of a subsequent
payment of the arrears of municipal tax. On this point we accept as correct the
view expressed in Ahmed Hossain v. Aswini Kumar(1), where a similar question
under the Bengal Municipal Act (Ben. XV of 1932), fell for consideration. The
question was if a person disqualified on the date of nomination could shake off
his pre-existing disqualification by acquiring a new right between the date of
nomination and the date of scrutiny. What happened in that case was this : on
the material date, that is, the last date for submission of nominations, a
person was in arrears for more than three months in payment of the tax which he
was liable to pay, and he came within the mischief of el. (g) of amended a.
22(1) of the Bengal Municipal Act. The contention was that the name of the
Press of which the candidate was the proprietor and not his name was recorded
in the books of the Municipality as the assessee and that the name of the
candidate was in the electoral -roll by reason of his educational
qualifications. This contention was repelled and it was (1) A.l.R. 1953 Cal.
542. 425 observed that if a person was disqualified on the date of the nomination,
he could not shake off his preexisting disqualification by acquiring a new
right between the date of nomination and the date of scrutiny. There is also
other judicial authority which', supports the same view. In Harford v. Linskey
(1), a similar question arose for decision under the Municipal Corporations
Act, 1882, s. 12 whereof enacted that " a person shall be disqualified for
being elected and for being a councillor " if and while he is interested
in contracts with the Corporation. The petitioner in that case admitted that at
the time of his nomination he was interested in contracts with the Corporation,
but contended that he could and would have got rid of his disqualification
before the day fixed for the poll, and was therefore not disqualified for
nomination. The question was whether he was so disqualified. Wright J.
delivering the judgment of the Court observed" In the absence of any
guide, we think it safest to hold that in cases of elections under the
Municipal Corporations Acts a person, who at the time of nomination is disqualified
for election in the manner in which this petitioner was disqualified, is
disqualified also for nomination. The nomination is for this purpose an
essential part of the election, and if there are no competitors it of itself
constitutes the election by virtue of the express words of s. 56. A different
construction might produce much confusion. On the nomination day no one could
know whether the persons nominated will at the poll be effective candidates or
not. It is true that in the case put the disqualification may be removed before
the election is completed ; but what is to be the effect if the
disqualification continues until the poll begins, or until the middle of the
polling day, or until the close of the poll ? Will votes given before the
removal of the disqualification be valid? If not how is the number of them to
be ascertained ? it seems to us unreason able to hold that the Act means to
leave the matter in such a state of uncertainty, and for these reasons (1)
(1999) 1 Q.B. 852, 858.
426 we think that this petitioner was
disqualified for nomination or election." The same state of uncertainty
and confusion, to which a reference has been made in the aforesaid
observations, will arise if the construction which learned counsel for the
appellant has pressed for our acceptance is adopted in the case before us.
Lastly, it has been argued on behalf of the
appellant that the expression 'to which s. 166 applies' in cl. (g) of s. 13-D
means that a bill of the sum due must be presented to the person liable for it,
as required by that section, before he can come within the mischief of the
clause; furthermore, the use of the expression 'demand' makes it essential that
a demand notice must also be served as required by s. 168 of the Act. As on the
finding of the Election Tribunal neither a bill was presented to the appellant,
nor was he served with a demand notice, learned counsel contends that the
appellant does not come within the mischief of the clause.
Sections 166 and 168 are in these terms. 166.
Presentation of bill.-(1) As soon as a person becomes liable for the payment of(a)
any sum on account of a tax, other than an octroi or toll or any similar tax
payable upon immediate demand, or (b) any sum payable under clause (c) of
section 196 or section 229 or section 230 in respect of the supply of water, or
payable in respect of any other municipal service or undertaking, or (c) any
other sum declared by this Actor or by rule (or bye-law) to be recoverable in
the manner provided by this chapter, the board shall, with all convenient
speed, cause a bill to be presented to the persons so liable.
(2) Unless otherwise provided by rule, a
person ,shall be deemed to become liable for the payment of every tax and
licence fee upon the commencement of the period in respect of which such tax or
fee is payable," 427 " S. 168. Notice of demand.-If the sum for which
a bill has been presented as aforesaid is not paid in municipal office, or to a
person empowered by a regulation to receive such payments, within fifteen days
from the presentation thereof, the board may cause to be served upon the person
liable for the payment of the said sum a notice of demand in the form set forth
in schedule IV, or to the like effect." We are clearly of the view that
the expression 'to which s. 166 applies' cannot bear the meaning sought to be
given to it on behalf of the appellant. That expression merely describes the
nature of the demand referred to in cl. (g).
Section 166 refers to three types of dues;
el. (a) of sub -s. (1) refers to any sum on account of a tax other than an
octroi or toll or any similar tax payable upon immediate demand; cl. (b) refers
to sums payable under el. (c) of s. 196 or s. 229 or s. 230 in respect of the
supply of water, etc., and cl. (c) refers to any other sum declared by the Act
or by rule or bye-law to be recoverable in the manner provided by Chapter VI.
The demand to which s. 166 applies must be a demand of the nature or type
mentioned in one or other of the aforesaid three clauses, and the demand referred
to in el. (g) of s. 13-D must be of that nature or type; this, in our view, is
the true meaning and effect of the expression 'to which s. 166 applies'.
Nor do we think that the word demand'
attracts the operation of s. 168. It may be readily conceded that the word 'demand'
ordinarily means something more than what is due; it means something which has
been demanded, called for or asked for. But the meaning of a word must take
colour from the context in which it is used. In el. (g) the context in which
the word 'demand' is used has a very obvious and clear reference to the amount
of arrears or dues on which the disqualification depends; therefore, the
expression used is arrears in the payment of municipal tax or other dues in
excess of one year's demand'. The word 'demand' in that context and in the
collocation of words in which it has been used can only mean 'in excess of one
year's municipal tax or other dues'. We have been referred to several meanings
of the word 55 428 'demand' in standard English dictionaries and law lexicons.
When the context makes the meaning of a word
quite clear, it becomes unnecessary to search for and select a particular
meaning out of the diverse meanings a word is capable of, according to
lexicographers. It is sufficient for our purpose to state that even in standard
dictionaries and law lexicons, it is well recognised that the word demand' may
mean simply a 'claim or 'due', without importing any further meaning of calling
upon the person liable to pay the claim or due.
For the reasons given above, we hold that not
one of the contentions urged on behalf of the appellant is worthy of
acceptance. The election petition was rightly decided, as the appellant was disqualified
for being chosen as a member of the Municipal Board in question on the day he
filed his nomination, under cl. (g) of s. 13-D of the Act. Accordingly, the
appeal is dismissed with costs in favour of respondent 3 who alone contested
the appeal before us.
Appeal dismissed.
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