JUDGMENT
Chainani, C.J.
(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 voter’s 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 section provides for an inquiry being held by a district Judge. This section, therefore empowers a district Judge to investigate the question whether a councillor has been duly elected. One of the grounds on which the election of a councillor may be challenged is that he was not qualified to stand for election. Consequently in the absence of any other provision, which debars him from doing so, the District Judge would be competent to inquire into this question also under S. 22 of the Act. It has, however, been urged by Mr. Jahagirdar on behalf of the opponents that the District Judge cannot decide this question, by reason of the provisions of sub-section (3) of S. 15, under which according to him the only competent authority to decide the quetion is the Collector. Sub-section (1) of this section begins with the words “No person may be a councillor”. Thereafter, follow clauses (a) to (g), specifying the disqualifications, a person subject to any of which may not be a councillor. The words No person may be councillor” mean that no person may become a councillor, or, in other words, that he cannot even stand for election, if he is subject to any of the disqualifications mentioned in sub-section (1). These words, therefore, refer to the period before the person has become a councillor. Mr. Jahagirdar has laid stress on the word “councillor” and has urged that this sub-section applies after a person has become a councillor. This argument ignores the words “may be” in the sub-section (1). The obly meaning, which can reasonably be given to the words “no person may be councillor,” is that no person may become or can become a councillor. This sub-section, therefore spefifies the disqualification, which debars a person from even standing for election as a councillor. That this sub-section applies, before a person has been elected or appointed as a councillor, is made clear by sub-s. (2) of s. 15. This sub-section is in the following terms:
“If any councillor during the term for which he, has been elected or appointed-
(a) becomes disqualified under sub-section (1), or
(b)……… to (e)……….
He shall, subject to the provisions of sub-section (3), be disabled from continuing to be a councillor and his office shall become vacant”.
This sub-section, therefore, comes into play only after a person has become a councillor. If, therefore, a person becomes disqualified under sub-section (1) after he has been elected, then under this sub-section he is disabled from continuing to be a councillor and his office becomes vacant. the words “countinuing to be councillor” also emphasise that this sub-section deals with disqualifications incurred after a person has been elected or appointed as a councillor. If, therefore, a person becomes subject to a disqualification specified in sub-section (1) before the election is held or before the appointment is made, he will not be eligible to stand for election or for being appointed as a councillor. On the other hand, if he incurs the disqualification after he has been elected or appointed, then under sub-section (2) he will cease to be a councillor. Then comes sub-sectopm (3), the relevant part of which is in the following terms:
“In every case, the authority competent to decide whether a vacancy has occurred under this section shall be the Collector …. Until the Collector decides that the vacancy has arisen, the councillor shall not be disabled under sub-section (2) from continuing to be a councillor”.
Sub-section (2) alone provides for an office becoming vacant when a councillor, during the term for which he has been elected or appointed, becomes disqualified. there is no similar provision in sub-section (1) that a vacancy shall arise, if aperson incurs a disqualification referred to in this sub-section. This sub-section deals with disqualifications arising before a person has become a councillor. Consequently, sub-section (3) becomes applicable only when a vacancy has occurred under sub-section (2), that is, when a councillor becomes subject to a disqualification after he has been elected. This inference is also suggested by the provision in sub-section (3) that until the Collector decides that the vacancy has arisen, the councillofr shall not be disabled under sub-section (2) from continuing to be a councillor. a person can continue to be a councillor only after he has become a councillor. It follows that sub-section (3) applies only when a councillor incurs a disqualification during the term of his office. In such cases, the only authority competent to decide whether a vacancy has occurred is the Collector. Where, however, a candidate was not qualified to stand for election, the question of a vacancy occurrring in the office of the councillor, by reason of his disqualification, does not arise. The Collector is not empowered to decide, after the election is over, whether a candidate was or was not qualified to stand for election. this question can, therefore, be raised and decided in an election petition filed under S. 22.
(3) In our opinion, therefore, the petitioner can challenge the validity of the nomination of opponents Nos. 3 and 4 in the election petition filed by him. It will be open to him to contend that these opponents were disqualified from standing for election under sub-section (1) of S. 15.
(4) Mr. Jahagirdar has placed strong reliance on the decision of this Court in Narayan maruti v. District Judge Kolaba . In that case it was held that S. 15 of the Bombay District Municipal Act deals with the disqualification which attaches to a councillor on his being elected and that no jurisdiction is conferred upon the District Judge to decide whether any disqualification attaches to the councillor under S. 15 of the Act. The provision of S. 15 were different at that time when this case was decided from what they are today. at that time the section contained two other sub-sections, (1A) and (1B). sub-section (1A) was in the following terms:
“If any person is elected or nominated as a councillor in contravention of the provisions of sub-section (1) his seat shall, subject to the provisions of sub-section (1B), be deemed to be vacant.”
The material part of sub-section (1B) was as follows:
“In every case, the authority competent to decide whether a vacancy has occurred under sub-section (1A) shall be the Collector ………. Until the collector decides that the vacancy has arisen, the seat of the person elected or nominated shall not under sub-section (1A), be deemed to have become vacant”.
These provisions, therefore, specifically empowered the Collector to decide whether a person had been elected or nominated as a councillor, in contravention of the provisions of sub-section (1). It was therefore held in Narayan Maruti’s case that the only authority, which could decide whether a person was disqualified from standing for election, was the Collector. Since this decision was given, the law has been changed. Sub-sections (1A) and (1B) have been omitted from S. 15. Under sub-section (3) as it now stands, the Collector is only empowered to decide whether a vacancy has arisen under sub-section (2), that is, whether a councillor has, after his election and during the term of his office, incurred any disqualification.
(5) Narayan Maruti’s case, has been distinguished in V. A. Ransing v. Shankar Vithal, 57 Bom LR 254. In that case the question was whether in an election petition filed under S. 6 of the Bombay Primary Education Act, sub-sections (1) and (2) of which contained provisions similar to those contained in sub-sections (1) and (2) of section 22 the District Municipal Act, the District Judge had jurisdiction to decide the case of a person being elected without the necessary qualification or without being eligible to be elected, and it was held that he possessed this jurisdiction. The view taken in this case was therefore the same as we are taking in the present case.
(6) We accordingly hold that the answers given by the learned Assistant Judge to issue I(a) and the first part of issue II, were erroneous. Both these issues should be ansered in the affirmative.
(7) The second point, which Mr. Sukthankar has urged, is that the electoral roll on the basis of which the election was held, is invalid, because it shows some persons as voters who are under 21 years of age or who do not reside in Ward III, in which the election was held. Sub-section (1) of S. 12 of the Act provides:
“The electoral roll of the Bombay Legislative Assemble for the time being in force, on such day as the State Government may by general or special order notify in this behalf, for such part of the Constituency of the Assembly as is included in a ward of a Municipal district shall, for the purpose of this Act, be deemed to be the list of voters for such ward.”
Under this provision therefore, the relevant portion of the electoral roll of the Bombay Legislative Assembly is deemed to be a list of the voters of the particular ward. Sub-section (1) of S. 13 states:
“Every person whose name is in the list of voters referred to S. 12 shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to vote, and every person whose name is not in such list shall not be qualified to vote, at the election of a member for the ward to which such list pertains”.
Every person, whose name is shown in the relevant portion of the electoral roll of the Bombay Legislative Assembly, is therefore entiled to vote at the election of a member for the ward to which such list pertains unless he is disqualified under the Act or under any other law for the time being in force to vote. The only other provisions in the Act, which disqualify a person from voting, are those ontained in Ss. 21 and 21A, which are in the following tersm.
“21. No person shall vote at any municipal election under this Act. if he-
(a) is of unsound mind and stands so declared by a competent court, or
(b) has voluntarily acquired the citizenship of a foreign State or is under any acknowledgement of allegiance or adherence to a foreign State.
21A. (1) No person shall vote at a general election in more than one ward and if a person votes in more than one ward, his vote in all such wards shall be void.
(2) No person shall at any election vote in the same ward more than once, notwithstanding that his name may have been entered in the list of voters for that ward more than once, and if he does so vote, all his votes in that ward shall be void”.
If, therefore, a person, whose name is shown in the list of voters referred to in S. 12, is not subject to the disqualification mentioned in S. 21, he is qualified to vote, subject of course to the provisions contained in S. 21A that he cannot vote in more than one ward and that he cannot vote more than once. The Act contains no provision that a person shall not be entitled to vote, if he is under 21 years of age or if he does not reside in the ward in which the election is to be held. consequently, it is not open to the petitioner to object to the electoral roll on the ground that it contained the names of some voters, who are under 21 years of age or who do not reside in ward III. The proper time for the petitioner to raise these objections was when the electoral roll of the Legislative assembly was being prepared. But he cannot raise them in the election petition filed by him.
(8) Mr. Sukthankar has relied on the decision of the supreme Court in Chief Commissioner, Ajmer v. Radhay Shyam Dani . Sub-section (2) of S. 30 of the Ajmer-Merwara Municipalities Regulation, 1925, as amended provided that “every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co-extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality, shall be entitled to be enrolled as an elector of the Municipality,” and S. 43 enabled the Chief Commissioner to make rules consistent with the Regulation for preparation and revision of electoral rolls and the adjudication of claims to be enrolled and objections to enrolment. In exercise of this power the appellant framed rules, which, inter alia, provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He notified an election programme and also authenticated and published an electoral roll on8-8-1955. The respondent, whose father’s name was recited wrongly in electoral roll applied for the rectification of the mistake in the Parliamentary Electoral Roll on 10-8-1955, but it was rejected on the ground that the roll of the Municipal elections had been finally published on 8-8-1955, and therefore no correction could be made. The respondent challenged the validity of the notification and the electoral roll. It was held that under S. 30(2) of the Ajmer-Merwara Municipalities Regulation, 1925, the electoral roll for the Parliamentary Constituency was only treated as the basis for the electoral roll of the Municipality and that the rules in so far as they made no provision for the revision of the electoral roll, for the adjudication of claims to be included therein or for entertaining objections to such inclusion, were defective and, therefore the electoral roll of the Ajmer Municipality which was authenticated and published by the appellant on 8-8-1955, was not in conformity with the provisions of S. 30(2) and the relevant provisions of the Regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee. It will be noticed that in that case S. 43 empowered the Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rools and the adjudication of claims to be enrolled and objections to enrolment. This case is therefore clearly distinguishable. Section 12 of the Bombay District Municipal Act provides that the electoral roll of the Bombay Legislative Assembly for the time being in force, for such part of the Constituency of the Assembly as is included in a ward of a Municipal District shall, for the purpose of this Act, be deemed to be the list of voters for such ward. The Act, therefore, makes the relevant part of the electoral roll of the Bombay Legislative Assembly, the electoral roll of the wards of the Municipal District. It does not contain any provisions, such as were contained in S. 43 of the Ajmer-Merwara Municipalities Regulation, 1925, for making rules for the preparation and revision of electoral rolls. Consequently, the petitioner is not entitled to object to this electoral roll, on the ground that it was not revised before the elections to the Municipality were hld.
(9) The answers given by the learned Assistant Judge to issues IV, V and VI were therefore correct.
(10) The learned Assistant Judge should now proceed with the petition in the light of what we have stated in this judgment. There will be no order as to costs of this petition.
(11) Order accordingly.