JUDGMENT
Rai, J.
1. The facts giving rise to this civil revision application may shortly be stated as follows. Lalganj Municipality within the subdivision of Hajipur, district Muzaffarpur, is composed of fifteen municipal commissioners; twelve of whom are elected and three are appointed by the State Government. The election of the Municipal commissioners was held on 28-6-1951. The result of this election was published on 3-10-1951, in the Bihar Gazette of the same date. On 3-7-1952, the State Government appointed three municipal commissioners, namely, (1) the medical officer of Lalganj dispensary, (2) Babu Panchi Lall Yadav and (3) Shri Ramphal Ram. This appointment was duly communicated to the Municipality which reached there on 7-7-1952. On 16-7-1952, a meeting of the Commissioners was held to elect the Chairman at which Basdeo Prasad Panjiar, the present petitioner, was elected as the Chairman.
On 23-7-1952, the names of the appointed commissioners were published in the Bihar Gazette of the same date. On 26-7-1952, the proceedings of the meeting held on 16-7-1952, were confirmed. By his order dated 18-9-1952, the District Magistrate of Muzaffarpur passed orders under Section 383 of the Municipal Act, 1922, suspending the operation of the resolution passed by the municipal commissioners of Lalganj Municipality in their meeting held on 16-7-1952. On 28-7-1952, Babu Brahma Nand Prasad Gupta, one of the commissioners of the Municipality, filed an application before the Election Commissioner, Muzaffarpur, for a declaration that the election of Babu Basdeo Prasad Panjiar was null and void. The applicant had in his petition alleged a number of irregularities on the ground of which he claimed the election of Babu Basdeo Prasad Panjiar as the chairman of the Municipality wholly void.
The application was opposed by the elected chairman who denied all the allegations made in the application for setting aside his election. It was also asserted on his behalf that the holding of the election on 16-7-1952, was confirmed on 26-7-1952, after the publication of the names of the appointed members in the Bihar Gazette dated 23-7-1952. According to him, the applicant was entitled to no relief.
2. The Election Commissioner allowed the application and declared that the election of Babu Basdeo Prasad Panjiar as the Chairman of the Municipality on 16-7-1952, was void as the meeting was not properly constituted on that date. Basdeo Prasad Panjiar, thereafter, moved this Court in revision.
3. Learned Counsel for the petitioner submitted before us that the Election Commissioner has erred materially in the exercise of his jurisdiction in declaring the election of the petitioner as the Chairman of the Municipality void. He also submitted that Section 20, Sub-section (2) of the Bihar and Orissa Municipal Act, 1922, did not stand in the way of the municipal commissioners holding the election of the Chairman prior to the actual publication of the names of the appointed members in the Bihar Gazette. Section 20 of the Act runs as follows:
“20. (1) Save as is otherwise provided in this Act, the Commissioners at a meeting shall elect by name one of their number or some person qualified to be of their number to be Chairman: provided that no salaried servant of Government shall vote in the election or be eligible for election.
(2) Such election shall take place within twenty one days from the dates of the publication of the names of the Commissioners in the official Gazette under Section 14(2), or in the case of a vacancy due to any other cause than the expiry of the term of office of the Chairman, within twenty-one days from the date of occurrence of the vacancy.”
He also referred to Rule 16(1) of the Bihar Municipal Election Petitions Rules, 1941, as amended by notification No. M/R2-503/51-912 published in the Bihar Gazette dated 13-2-1952. Rule 16(1) runs thus,
“16(1) Subject to the provisions of this rule, if, in the opinion of the Election Commissioner:
(a) the election of a returned candidate has been procured or induced, or the result of the election has been materially affected, by any corrupt practice; or
(b) any corrupt practice specified in part I of the Schedule to these rules has been committed in the interest of a returned candidate; or
(c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote or by the reception of any vote which is invalid, or by any non-compliance with the provisions of the Act or of the rules framed under the Act in respect of the election, or by any mistake in the use of any prescribed form; or
(d) the election has not been a free election by reason of the large number of cases in which bribery or undue influence has been committed, the election of the returned candidate shall be void.”
Mr. U. N. Sinha submitted that the irregularity, if any, committed by the election of his client as the chairman of the Municipality on 16-7-1952, will be deemed to have been remedied when the — proceedings of that date were confirmed in a subsequent meeting of the commissioners held on 20-7-1952, after the publication of the names of the appointed commissioners in the Bihar Gazette dated 23-7-1952. He also urged that the election of his client should not have been declared void until it was also held by the Election Commissioner that the alleged non-compliance with the provisions of the Act had materially affected the result of the election as contemplated by Rule 16(1)(c) quoted above. In this connection, learned Counsel relied on the decision of their Lordships of the Supreme Court in the case of — ‘Vashisht Narain Sharma v. Dev Chandra’ , AIR 1954 SC 513 (A).
4. Learned Counsel for the applicant-opposite party in this Court submitted that Section 20, Sub-section (2) of the Act did contemplate holding of a meeting for election of the chairman after the date of the publication of the names of municipal commissioners which did include the publication of the names of the appointed commissioners as well. According to him, the meeting of the commissioners held on 16th July 1952, for election of the chairman was ill-constituted and, as such, any election held in that meeting was inoperative and void. According to him, the election was void “ab initio’ and, as such, it was not necessary to consider whether the non-compliance with the provision of the Act had materially affected the result of the election or not. He also submitted that it is not a fit case in which this Court should exercise its revisional jurisdiction under Section 115, Civil P. C. In support of his contention, he relied on the decisions in the case of — ‘Birendra Lal Chaudhury v. Nagendra Nath Mukherjee’, 163 Ind Cas 573 (Cal) (B) and the case of — ‘Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras’, AIR 1949 PC 156 (C).
5. I agree with Mr. Lal Narain Sinha that the period of twenty-one days within the meaning of Section 20(2) of the Act was to commence from the 23rd of July when the names of the three appointed Commissioners were published in the Bihar Gazette, but that alone cannot–render the election of the chairman on 16-7-1952, wholly illegal or void. As the previous chairman himself was one of the candidates proposed for the chairmanship and as he himself took active part in the election he will be deemed to have relinquished his office on that date after which the election of the new chairman was held on that date as provided by the latter part of Section 20(2) of the Act. Every municipal commissioner present in the meeting including the present opposite party Brahma Nand Prasad Gupta had proceeded to hold the election of the new chairman on 16-7-1952, on the assumption that the old chairman had vacated his office.
In this view of the matter, there was really no non-compliance with the provisions of the Act which had materially affected the result of the election as contemplated by Rule 16(1)(c) of the Election Petitions Rules, 1941. I am also of the view that the Election Commissioner is a ‘court’ within the meaning of Article 227 of the Constitution of India as was held in the case of — ‘Dr. Shayamakant Verma v. Dr. Harishanker Prasad’, AIR 1954 Pat 65 (D), and that it is a fit case in which this Court should interfere under Article 227, of the Constitution as was done by the learned Judges of the Calcutta High Court in the case of — ‘Hrisikesh Bhattacharjee v. Brojendra Mohan’, AIR 1953 Cal 731 (E).
6. The result is that the order of the Election Commissioner is set aside, this application succeeds and is allowed with costs hearing fee Rs. 32/-only.
Ahmad, J.
7. I entirely agree with my learned brother that this application should be allowed with costs and the order of the Election Commissioner should be set aside. In my opinion, it is clear from the facts of the case that, in any view of the matter, the contravention, even if any of Section 20(2) of the Act has not in any way affected the result of the election and much less materially affected its result. The learned Election Commissioner has also not given any finding that the contravention of Section 20(2) of the Act did in fact affect or materially affect the result of the election. That being so, the learned Election Commissioner had no jurisdiction to hold that the election was void and illegal under the provisions of Rule 16(1)(c) because of the contravention of Section 20(2) of the Act.
