Daruwala M. Umar A. Rehman Vs. Namdeo Kondiba Chavan and anr. - Court Judgment

Excerpt:
maharashtra municipalities act (mah. xl of 1965), sections 21, 18, 15, 16, 9, 2(12) - co-option of person by elected councillors whether can be challenged in election petition under section 21, by a voter of municipal council--word 'election' in section 21 whether to receive restricted meaning--qualifications under section 9 whether to be tested in objective manner--words and phrases.;under provisions of the maharashtra municipalities act, 1965, a municipal council can have councillors who are elected, those that are co-opted and some who are nominated. even though section 21 of the act does not, in so many words, provide for the three separate contingencies of elections, co-options or nominations, and uses the omnibus word 'election', this word 'election' will take the colour from the context in which it is used and the nature of the petition which challenges a particular election. the word 'election' has an accordian like quality which enables it to expand or contract depending upon for configuration in which it is used. for an election to a ward or general of municipal council, the challenge can come from any one whose name appear in letter but in the case of an election of a co-opted councillor the word election was have to be given a constricted meaning to cover elections of a co-opted member by the elected councillors. a voter of the municipal council cannot challenge the co-option of a person by the elected councillors and he has no locus standi to file an election petition under section 21 of the maharashtra municipalities act, 1965, as he is not an elected councillor who could have exercised his franchise at the time of co-opting a member.;the qualifications for being co-opted to the municipal council under section 9 of the maharashtra municipalities act, 1965 cannot be tested in an objective manner, but would depend upon the subjective satisfaction of the members of the electoral college. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 111 of 1985, the co-option of rehman by a special meeting, of the newly elected councillors, held on 15th may, 1985. rehman as well as the councillors opposed the petition on the ground that namdeo kondiba chavan had no locus standi to file the petition as he was not an elected. 5. it is unfortunate that a section like section 21 which deals with an important subject such as a challenge to an election by an election petition a challenge which appears every now and then-has not been drafted with the meticulousness of an election law. the word 'election' has an according like quality which enables it to expand or contract depending upon the configuration in which it is used.v.v. vaze, j.1. the maharashtra municipalities act, 1965 (hereinafter referred to as 'the act') in its chapter ii deals with the classification of municipal areas and municipal councils. the first group in the council consists of councillors elected at ward elections. the second group consists of councillors co-opted by the elected councillors. an unusual contingency is envisaged by section 18 of the act whereunder if at the general elections no councillor is elected from any ward the vacancy is to be filled in by nomination of a duly qualified person by the state government. such a nominee of the state government would be deemed to be elected at an election under the act. thus the municipal council can have councillors who are elected, those that are co-opted and some who are nominated.2. section 15 prescribes the qualification for becoming councillor and disqualifications appear in section 16.3. as is usual with as act prescribing elections to a body, a machinery has been provided under section 21 to resolve the disputes regarding elections, co-options or nominations of the councillors. one namdeo kondibe chavan, a voter of the kurduwadi municipal council challenged by election petition no. 111 of 1985, the co-option of rehman by a special meeting, of the newly elected councillors, held on 15th may, 1985. rehman as well as the councillors opposed the petition on the ground that namdeo kondiba chavan had no locus standi to file the petition as he was not an elected. councillor who could have exercised his franchise at the time of co-opting a member. the learned district judge held the petitioner is qualified to challenge the co-option and that rehman did not satisfy the conditions of section 9 for being co-opted to the council. hence this writ petition.4. the learned district judge has made the expression 'by any person entitled to vote at the election' appearing in section 21 of the act as the bedrock of his judgment, to find locus in favour of the petitioner. the learned district judge drew sustenance from the definition of the word 'election' in clause 12 of section 2 of the act which is an inclusive definition to include election to a council and by election.5. it is unfortunate that a section like section 21 which deals with an important subject such as a challenge to an election by an election petition a challenge which appears every now and then-has not been drafted with the meticulousness of an election law. co-opting and nominating members is not a new exercise in setting up a democratic body. article 171 of the constitution provides for nomination of members having special knowledge or practical experience in certain fields such as literature, science, art, co-operative movement and social. section 81 of the representation of the people act, 1951, enables an elector to file an election petition calling in question any election and the section itself by its explanation defines 'elector' to mean a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.6. for every election the voters are drawn from an electoral college. under article 54, the electoral college which elects the president consists of elected members of both the houses of parliament and elected members of the legislative assemblies of the states. section 2(d) of the presidential and vice-presidential elections act, 1952, defines an 'elector' in relation to a presidential election to be a member of the electoral college referred to in article 54.7. thus in respect of challenge to elections of a president the 1952 act makes it clear that he must be an elected member either of the state assembly or upper house or the council of state.8. even though section 21 of the act does not, in so many words, provide for the three separate contingencies of elections, co-options or nominations, but uses the minibus word 'election', this word 'election' will take the colour from the context in which it is used and the nature of the petition which challenges a particular election. a cursory reading of section 21 may lead one to the conclusion that any one who is entitled to vote in the ward elections or by-election would have the locus standi to challenge the ward elections, co-options or nominations. but for interpreting this word 'election' regard will have to be had to the acts on the same subject in allied fields. as contemplated above, the challenge to a presidential election under the constitution can come only from an elector who belongs to the electoral college which elects the president. any citizen of india who has the qualifications prescribed under article 84 of the constitution cannot challenge the election of the president; only an elected representative or a member of parliament or a member of the state legislature can alone do so. this philosophy which permeates through the constitution, the representation of the people act, 1951 and the presidential and vice-presidential elections act, 1952 will operate as a touch stone upon which the word 'election' will have to be interpreted. the word 'election' has an according like quality which enables it to expand or contract depending upon the configuration in which it is used. for an election to a ward or general election to the municipal council, the challenge can come from any one whose name appears as a voter. but to the analogy of challenge to the election of a president of india, the word 'eletion' in the present case will have to be given a constricted meaning to cover election of a co-opted member by the elected councillors. on this point alone the reasoning of the learned judge cannot be sustained and i find that the petitioner had no locus standi to challenge the petition.9. as regards the factual question as to whether rehman satisfies the qualifications of being a person having special knowledge or practical experience in the field of public health, local self-government, education to welfare of labour, i find that these qualifications cannot be tested in an objective manner, but would depend upon the subjective satisfaction of the members of the electoral college rehman is a graduate in economics and politics. he has been a special executive magistrate for 11 years and has associated himself with educational institutions of that area. this array of qualifications is enough to entitle him to claim that he has special knowledge and practical experience in the field of public health, local self-governement, education and social service.10. rules do not prescribe that the candidates should marshal all his qualifications in the form prescribed under the act because ultimately it is not the qualifications mentioned in the form that would weigh with the members of the electoral college but their evaluation that the candidate does possess those qualifications.11. petition succeeds. rule made absolute in terms of prayer clause (b). no order as to costs.