S.R. Das Gupta, C. J.
1. This application relates to the validity of an order made by the learned Judge who decided an election case By which he ordered that the election of the petitioner be set aside and respondent 1 be declared duly elected. The matter arises in this way :
The election in question was held on 3-6-1957, to Ward No. 5 of the Athani Municipality, Belgaum District. On 5-6-1957, the scrutiny was made and the results were declared. The petitioner was declared elected along with two others, it being a three-seated constituency. Respondent 1 before us, applied to the District Judge, Belgaum on 12-6-1957, for setting aside the election and for an order that he should be declared elected.
The grounds taken by the respondent in his said application inter alia were that there were corrupt practices committed in the said election and there was partiality of one Kulakarni who was the Chairman of the Municipality and the Chairman of the scrutiny committee. It was also alleged that certain votes of persons who were already dead at the time when the election took place, were recorded in the said election and the petitioner before us got those votes recorded in his favour.
2. The learned Extra Assistant Judge who determined the said election petition, came to the conclusion that there were no corrupt practices committed for the purpose of the election and that there was no partiality on the part of the Chairman of the Municipality who was also the Chairman of the scrutiny committee. But he held that in the facts of this case, it was necessary to have a scrutiny and recounting and accordingly made an order directing the scrutiny and recounting of the votes in question.
3. The scrutiny was done by two Commissioners appointed by the learned Judge. They submitted their report to the learned Judge. It appeared from the said report that the total number of votes secured by the petitioner was 251 and the total number of votes secured by respondent No. 1 before us was 249 votes. The learned Judge examined those votes and on such examination, found that one of the votes cast in favour of the petitioner, was cast on behalf of a person who was already dead and therefore he excluded that vote from counting.
He further found that so far as the respondent 1 before us was concerned, one vote was excluded without any justification and he held that that vote should be held to have been cast in favour of the said respondent. It appears that the said vote was cast by putting the cross mark by the side of the Symbol and the learned Judge held that there are many other instances where votes had been cast like that but they were admitted and he further came to the conclusion that the intention was clear that the said vote was intended to be cast in favour of respondent 1.
The result of his findings was, that both the petitioner and respondent 1 secured equal number of votes, i.e., 250 votes each. That being the position, a lot was drawn in the presence of the Judge and in the presence of the parties under Sub-section (3) (b) second proviso of Section 22 of the Bombay District Municipal Act, 1901.
In that lottery, two chits in the name of each of the parties, viz., the petitioner and the respondent 1, wore written and folded and were picked up by a stranger. The chit containing the name of respondent 1 was picked up and consequently he was declared as elected by the learned Judge. The result was that the petitioner's election was set aside and respondent 1 was declared duly elected as a successful candidate.
4. The present petition has been filed by the petitioner who lost in the said proceedings, under Article 226 of the Constitution.
5. The learned Advocate appearing in support of this petition raised several grounds. In the first place, he contended that the learned Judge who heard the election case had no jurisdiction to do so. The ground on which he based his contention was that after integration to the Mysore State of the area in question, which was previously within the Bombay State, no fresh Notification has been issued by the Mysore Government appointing the particular Judge, under Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901, as having the power to try this particular case or such cases generally.
According to the learned Advocate, it was necessary to have such a Notification before the learned Judge could function as an election Tribunal. It should be mentioned that in the area in question the Bombay District Municipal Act, 1901 was the law and Section 22 (1) of the said Act provided as follows :
'If the validity of any election of a councillor is brought in question by any person qualified either to he elected or to vote at the election to which such question refers, 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.'
The material part of Sub-section (2) of the said section reads as follows :
'An inquiry shall thereupon be held by a Judge, not below the grade of an Assistant Judge, appointed by the State Government either specially for the case or for such cases generally, and such Judge may, after such inquiry as he deems necessary, and subject to the provisions of Sub-section (3), pass an order confirming or amending the declared result of the election, or setting the election aside. ....'
It appears that the Government of Bombay, by a Notification dated 29-7-1938 appointed the joint Judges and the Assistant Judges in districts (within the State of Bombay), to hold inquiries into cases referred to for the determination by the District Judge of that district, under Sub-section (1) of the said Section 22 of the said Act. This Notification was issued by the said Government in exercise of its powers conferred by Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901.
On 1-11-1956, a part of the Bombay State came within the State of Mysore and the area in which the election took place also came within the said State. It is not disputed before us that thereafter no fresh Notification was issued by the Mysore State Government again conferring the power under Sub-section (2) of Section 22 of the said Act upon those Judges who had already been entrusted by the said Notification issued by the Bombay Government in that respect, The learned Advocate contended before us that it was necessary to have a fresh Notification issued by the Mysore State Government conferring such power upon the learned Judge in question before he could act under Sub-section (2) of Section 22 of the said Act.
6. In order to appreciate this contention, it would be necessary to refer to some of the provisions of the Bombay District Municipal Act, 1901 and the States Reorganisation Act, 1956. I have already referred to Sub-sections (1) and (2) of Section 22 of the Bombay District Municipal Act, 1901. It would not be necessary for me at this stage to refer to any other section of the said Act. Some other provisions of the said Act would be material for me to consider when I deal with the other questions raised by the learned Advocate on behalf of the petitioner. The material sections of the States Reorganisation Act, 1956 are as follows :
'Section 116:
Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new State or a union territory shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new State or union territory in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such union territory, as the case may be.
(2) Nothing in this section shall he deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office.'
Section 122:
Power to name authorities, etc., for exercising statutory functions :
The Central Government, as respects any Union territory & the State Government as respects any new State or any transferred territory, may by notification in the official Gazette, specify the authority, officer or person who, as from the appointed day, shall be competent to exercise such functions exercisable and under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly. It would be necessary for the present purpose to refer to one other section of the said Act and that is, Section 119 which provides as follows :'The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, he construed as meaning the territories within that State immediately before the appointed day.'
These are the relevant provisions of the said Act which would be necessary to be considered in determining this particular contention of the learned Advocate for the petitioner.
7. It was urged by him on the basis of the provisions contained in Section 122 of the States Reorganisation Act, 1956 that, in the first instance, it was necessary for the State Government as respects any new state or any transferred territory, to specify by notification, the authority, officer or person who, as front the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly.
It was contended by him that in view of the provisions of the said section, the State Government should have appointed an authority, officer or a person for the purpose of exercising the functions mentioned in Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901. This according to him, is clear from the provisions of the said section itself.
8. The attention of the learned Advocate however, was drawn, in the course of his argument, to the provisions of Section 116 of the States Reorganisation Act, 1953, which as I have mentioned, provides that every person who immediately before the appointed day is holding or discharging the duties of any post or office, shall be deemed as from that date to have been duly appointed to such post or office by the Government or other appropriate authority in such State.
The learned Advocate however, contended that the duties and functions which are mentioned in Sub-section 2 of Section 22 of the Bombay District Municipal Act, 1901, are not the duties attached to any post or office. In other words, his contention was that when a person is asked to decide an election case, he is not appointed to any post or to any office and he cannot be held to be a person coming within Sub-section 1 of Section 116 of the Act.
In other words, it was urged by the learned Advocate for the petitioner that all that had to be done by the State Government under Section 22 (2) was to entrust a person who, according to the said sub-section must be a Judge not below the rank of an Assistant Judge, with the functions mentioned in the said sub-section. In other words, according to the learned Advocate, all that has to be done is to entrust the said person with the task of deciding the election case which would be transferred by the District Judge. He is not an officer nor does he hold any post for that purpose.
9. For the purpose of this case, it is not necessary for me to decide the validity or otherwise of the contention of the learned Advocate for the petitioner on this point. The question of jurisdiction, in my opinion, can be disposed of on a consideration of the other provisions of the said Act, viz., Section 119 of the States Reorganisation Act.
The said section provides that the provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, he construed as meaning the territories within that State immediately before the appointed day.
The effect of this section is that the law which was in force in the area which was within the State of Bombay before the appointed day and which had come to the Stale of Mysore after such appointed day, will remain in force so far as those territories are concerned. It follows therefrom that the Bombay District Municipal Act, 1901 would still be the law in the area which belonged to the State of Bombay but which had since come to the State of Mysore.
It follows therefrom that the provisions of the Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901, would apply to the said area as well.
10. The question however is whether or not the notification issued by the Government of Bombay under Sub-section 2 of Section 22 of the said Act can be said to be a law in force immediately before the appointed day. 'Law' has been defined in Sub-clause (h) of Section 2 Part I of the States Reorganisation Act, 1956 as follows :
'Law' includes any enactment, ordinance, regulation, order, bye-law, rule scheme, notification or other instrument having the force of law in the whole or in any part of the territory of India; Thus a notification according to the said definition can he 'law' for the purpose of the said Act, if it has the force of law in the whole or in any part of the territory of India. This leads me to the consideration of the question as to what the real meaning of 'having the force of law' is.
11. The learned Advocate for the petitioner referred us to certain articles of the Constitution for the purpose of ascertaining the realmeaning of the expression 'having the force of law';from those articles no definite meaning of that expression can be found. However, as observed byMr. Basu in his commentary on the Constitution ofIndia, for the purpose of ascertaining the meaningof that expression we have to refer to the treatiseon Jurisprudence. The observations of the learnedAuthor on this point are helpful and they read asfollows ;
' 'Having the force of law'. : The definition in this clause says that any rule of conduct having the force of law is a law.' But it does not say what constitutes the 'force of law.' For that we have to refer to the treatises on jurisprudence. The standard definition of 'law' is by Holland, who, improving on the definition of Austin, says :
'Law is a general rule of external human conduct enforced by a sovereign political authority.' But enforcement by a sovereign political authority in a modern State means enforcement by the Courts of Justice. Hence Salmond puts it thus :'Law is the body of principles recognised and applied by the State in the administration of justice.'
Hence, the answer to the question whether any rule of conduct has the force of law is to be found in the fact whether it is enforced by the Courts of law.' In my opinion, the test laid down by the learned author seems to be the proper test to apply for determining the meaning of the expression having the force of law.' That is also the view taken by their Lordships of the Patna High Court in Emperor v. Abdul Hamid, 23 Cri. LJ 625 : (AIR 1923 Pat 1) (A). Their Lordships in the course of their Judgment, observed as follows :
'Now whether 'law' means the expression of the exercise of the discretion by the Legislature or whether it includes the expression of the exercise of the discretion by a person or body of persons under the sanction and the authority of the Legislature, this, at any rate, is clear that when we speak of law, we mean something which is enforceable and which is not capable of being rejected by the Courts as uncertain, as unreasonable, or as repugnant to the law of the land. The Courts may construe any particular provision of law; but the Courts cannot quash any provision of law nor treat it as unenforceable.'
Their Lordships then proceeded to observe as follows:
'They cannot, in my opinion, be called law, for the essence of the law is that it is enforceable, provided circumstances exist which would make it enforceable.'
In my opinion also 'law' is a body of rules which can be enforced in a Court of law. In this case however, the expression used is 'having the force of the law'. It means that a particular set of rules or a particular notification, although may not strictly be called law, may still have the force of a law, which means that it would be enforced in a Court of justice. If therefore, a notification can be enforced in a Court of justice, then it can at least be said to have the force of a law. Judged by this standard, I find no difficulty in holding that the notification in question has the force of law inasmuch as the same can be enforced in a Court of justice if and when occasion arose for enforcing it.
I therefore hold that the case comes under Section 119 of the States Reorganisation Act, 1956 and that being so, the notification which was in force immediately before the appointed day would still apply to that part of the State of Mysore which before its integration to the said State formed Dart of the State of Bombay. That being so, the notification in question gave power to the Judges mentioned therein to exercise the functions enumerated in Sub-section (2) of Section 22 of the Bombay District Municipal Act.
12. It was then urged by the learned Advocate for the petitioner that the notification itself was not valid. His contention, shortly put, was as follows: Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901, requires that a Judge, not below the grade of an Assistant Judge has to be appointed by the State Government for the purpose mentioned in the said section. What happened in this case was that the joint Judges and the Assistant Judges of the Bombay State were all appointed by the said Notification for that purpose.
This, the learned Advocate contended, the Government was not entitled to do as this is not in compliance with the provisions of Sub-section (2) of the said section. I am unable to accept this contention of the learned Advocate for the petitioner. When it is said that an inquiry shall thereupon be held by a Judge, not below the grade of an Assistant Judge, appointed by the State Government, it means that the Government by a notification may appoint a person who is a Judge.
It follows therefrom that the Government may, by a notification appoint a number of persons, who are Judges, for the aforesaid purpose. Mr. Reddy, appearing on behalf of the petitioner did not also dispute that the Government under the said section has the power to appoint a number of persons to exercise the functions mentioned in the said section. That being so, I do not find anything wrong in the notification which had been issued by the Government of Bombay. The material part of the said notification is as follows:
'....The Government of Bombay is pleased to appoint the Joint Judges and the Assistant judges in any District to hold inquiries into cases referred for the determination of the District Judge of that District under Sub-section (1) of Section 22 of the said Act.'
When it is said that the Government is pleased to appoint the Joint Judges and the Assistant Judges to hold inquiries what is meant, in my opinion, is that all persons who are joint Judges and Assistant Judges in any District in the State of Bombay are appointed to hold inquiries into such cases.
That being so, I am of the opinion that by the notification all the persons who hold the posts of the Joint Judges and of Assistant Judges on the date of the notification in the State of Bombay were given the power to decide the case mentioned in Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901. In that view of the matter, I am unable to accept this contention of the learned Advocate for the petitioner and it must fail.
13. The learned Advocate for the petitioner then contended before us that the notification in question mentions Joint Judges and Assistant Judges, It docs not mention Extra Assistant Judges. In this case however, the person who decided the election case was an Extra Assistant Judge. The learned Advocate therefore contended that he had no power to decide this case; he not being one of the persons who was entrusted with the said power by the said notification.
This contention, in my opinion, is equally unsound. The Extra Assistant Judge is still an Assistant Judge. There is no real difference in the cadre between an Assistant Judge and an Extra Assistant Judge. The cadre is that of Assistant Judges and Extra Assistant Judges come within that cadre. That being so, I am clearly of the opinion that the Extra Assistant Judges are Assistant Judges as mentioned in the said notification and were clothed with the authority under Sub-section (2) of Section 22 of the Bombay District Municipal Act, 1901. These are the contentions of the learned Advocate for the petitioner on the question as to whether or not the Tribunal had jurisdiction to hear and decide this case.
14. On the merit of the matter, the contention of the learned Advocate for the petitioner was that the Judge had no jurisdiction to invalidate any votes which had already been cast. He contended in the first place, that the Judge, in the circumstances of this case, had no jurisdiction to order a scrutiny and recounting of the votes in question inasmuch as, there was no material to show that any invalid vote has been admitted in the said election.
In other words, his contention was that a prima facie case must, in the first instance be made out before a Judge can order a scrutiny and recounting. In support of that proposition he relied on the decision in S. Sharafuddin Ahmed v. Shamsul Huq, AIR 1941 Cal 147 (B) wherein McNair J. on a review of the English Election cases, came to the conclusion that a prima facie case must be alleged and established before a recounting can be ordered.
The question however in the present case has to be determined by the provisions of the Bombay District Municipal Act, 1901. Sub-clause (b) of Sub-section (3) of Section 22 of the Act, in my opinion, empowers the Tribunal to order a scrutiny in the circumstances as at present. The said Sub-section (3) of Section 22 reads as follows:
(3) (a) The Judge, if satisfied that a candidate has, within the meaning of Sub-section (4), committed any corrupt practice for the purpose of the election, shall declare the candidate disqualified both for the purpose of that election, and of such fresh election as may he held under Sub-section (2), and shall set aside the election of such candidate if he has been elected.
(b) if in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall, after a scrutiny and computation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected:
Provided that for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it:On the wordings of Sub-clause (b) of Sub-section (3) of Section 22, it appears that in a case where no corrupt practice has been alleged or, in any event, where no such corrupt practice has been proved and where the validity of an election is in dispute between two or more candidates, the Judge shall make a scrutiny and computation of the votes recorded in favour of each such candidate and declare the candidate who is found to have obtained the greatest number of such votes to be duly elected.
In making such a scrutiny, the Judge shall also determine which are the votes validly cast in favour of the candidates. The proviso to the said sub-clause also makes it clear that it is within the jurisdiction of the Judge to find out whether or not any vote which has been recorded, has been cast by means of corrupt practice committed by any person known or unknown in giving or obtaining it.
That being so, I do not find anything in the said sub-section to support the contention of the learned Advocate for the petitioner. The said subsection does not say that the petitioner must allege that the votes have been invalidly cast in favour of the other candidates and such invalid votes have been received and that he must make out a prima facie case that such votes were in fact cast before scrutiny can be ordered. Even if that be the effect of Sub-clause (b) of Sub-section (3) of Section 22 of the Act, in the facts of this case I find that the learned Judge was fully justified in ordering scrutiny and recounting. It appears that the Chairman of the scrutiny committee himself admitted that there were many votes which were of doubtful nature and he had to pass orders giving reasons while rejecting them as invalid or taking them into account as valid;
It also appears that the petitioner in his petition before the District Judge has inter alia alleged that the votes of certain persons who were dead including vote No. 462 were invalidly admitted. That being so, I am clearly of the opinion that the learned Judge was justified in ordering scrutiny and recounting. He was also, in my opinion, justified in determining which of the voles cast were invalid and in going into the question as to whether or not vote No. 462 was the vote alleged to have been given by a person who was already dead at the time of such voting.
15. I do not think that the learned Judge committed any error in going into that question. As to whether or not the man was dead is a question of fact which cannot be agitated before us in a writ petition. It would be sufficient for me to say that the proviso to Clause (b) of Sub-section (3) of Section 22 empowers the Judge to refuse to reckon any vote if the Judge finds any corrupt practice was committed by any person known or unknown in giving or obtaining it.
If the Judge had found as a fact that the corrupt practice was committed by any one of the candidates then the matter would come under Sub-clause (a) of Sub-section (3) and the Judge would be entitled to set aside the election.
16. The learned Advocate for the petitioner urged before us that in view of the provisions of Sub-section (5) of Section 22 of the Bombay District Municipal Act, 1901, the learned Judge was not entitled to set aside the election. The said subsection provides as follows:
'If the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under Clause (c) of Sub-section (1) of Section 11, or of an irregularity or informality not corruptly caused, the Judge, shall not set aside the election.'
In this case the learned Advocate for the petitioner contended that there was merely an irregularity or informality which did not justify the Judge in setting aside the election. In my opinion, this contention of the learned Advocate for the petitioner is wholly untenable. Sub-section (5) has no application to the present case. The said sub-section would apply to a case where the validity of an election is brought in question only on the ground of any error by the officer charged with carrying out the rules or of an irregularity or informality.
In this case, the election was not brought in question on any of such grounds. The election was brought in question on the ground of corrupt practice, partiality and inclusion of invalid votes. In the next place, when a Judge acts under Clause (b) of Sub-section (3) of Section 22 of the Bombay District Municipal Act, 1901, he does not set aside the election; but what he does is to ascertain the total number of valid votes cast in favour of the parties to the election and determine which party has been duly elected. That would not be a case of setting aside the election but a case for determining the person who has been validly elected. That is also the view taken by Chief Justice Chagla in Samsherkhan v. Jafarali Ahmedalli, : AIR1954Bom133 (C). His Lordship held that Sub-section (5) only applies to those cases where the Judge would have the power and the jurisdiction to set aside the election and the power and jurisdiction of a Judge to set aside an election only arises under Clause (a) of Sub-section (3) and the Judge cannot under Clause (b) of that sub-section set aside the election and therefore the direction in Sub-section (5) can have no application when the Judge is dealing with a case which falls under Clause (b) of Section 22(3). This contention of the learned Advocate for the petitioner must also fail.
17. There is one more matter to which I need refer before I conclude my judgment. It appears that the petitioner before us had challenged the validity of a vote which was cast in favour of the respondent No. 1 on the ground that the person who cast the said vote was a minor at the date in question. The learned Judge has considered this matter and after taking into consideration all the materials before him, has come to the conclusion that he was not a minor. This is a question of fact which, in my opinion cannot be challenged in a writ petition. Therefore, this contention of the learned Advocate also must fail.
18. In the result, all the grounds urged on behalf of the petitioner fail and the petition is dismissed with costs. (Advocate's Fee, Rs. 150/-).
A.R. Somnath Iyer, J.
19. I agree.
20. Petition dismissed.