JUDGMENT
R.A. Jahagirdar, J.
1. This is a petition under Article 227 of the Constitution challenging the order dated 8th of November, 1985 passed by the learned Additional District Judge of Nanded in Election Petition No. 11 of 1985. The facts leading to the election petition must, therefore, be necessarily stated before appreciating the point that has been raised on behalf of the petitioner in this petition.
2. Elections to the Municipality of Biloli in Nanded district were held and certain number of Municipal Councillors, amongst whom respondent No. 1 is one, took their seats. The Maharashtra Municipalities Act, 1965, which governs the Constitution of the Municipal Councils, provides in section 9 that every Council shall consists of Councillors elected at ward elections; and shall also include Councillors co-opted by the elected Councillors in the prescribed manner from amongst persons who are entitled to vote at the municipal election. In other words, after the Councillors are elected, they are authorised to elect some persons as co-opted members and after such co-option such members become Councillors. As far as this Municipal Council is concerned, it has been mentioned, two persons are to be elected as the co-opted Councillors. Election of the co-opted members has to take place as stated in section 9 of the Act in the prescribed manner, i.e. in the manner prescribed by the rules.
3. Such rules have been made and they are called, the Maharashtra Municipal Council (Co-option of Councillors) Rules, 1967. Rules 3 to 5 are relevant for the purposes of the disposal of this petition and the provisions of the same may be briefly noted straightway at this stage. Rule 3 provides that not later than twelve noon on the working day immediately preceding the day fixed for the meeting of the Council at which co-option of Councillors is to be made, “any elected Councillor may nominate any person as a candidate, who is eligible for being co-opted, by delivering to the Chief Officer a nomination paper, in the Form appointed to these rules, duly filled in and signed by himself as proposer.” Sub-rule (2) of Rule 3 requires the Chief Officer to still in the endorsement in the Form as soon as he receives the nomination paper. The Form under Rule 3 requires several details to be filled in by the proposer himself. Such details include the name, address, age and sex of the candidate. Since the candidate to be elected as co-opted member has to be necessarily a person who had the qualification to vote at the election, his electoral roll number has also to be mentioned in the Form prescribed under Rule 3. The customary declaration that has to be made by the candidate also forms part of the Form. The Form also requires the following endorsement to be made by the Chief Officer to whom the delivery of the nomination paper is to be made under Rule 3.
“This nomination paper was delivered to me by……………………….(name of proposer) at my office at…………(hour) on…………….(date).”
4. Rule 4 provides for the scrutiny of nominations and withdrawal of candidature. The presiding authority has been enjoined not to reject any nomination paper on the ground of any defect, which is not of a substantial character. A candidate may withdraw his candidature by notice in writing subscribed by him and delivered to the presiding authority within fifteen minutes from the time of reading out the names of validity nominated candidates. It is further provided; “Such notice may be delivered either by the candidate in person or by his proposer duly authorised by the candidate in this behalf.” The notice given once cannot be cancelled.
5. Rule 5 states that if the number of validity nominated candidates who have not withdrawn their candidature is equal to or less than the number of persons to be co-opted, the presiding authority shall forthwith declare all such candidates to be duly co-opted. If any seat is yet to be filled in, the same can be done under the rule at a subsequent meeting. If, however, the number of validity nominated candidates who have not withdrawn their candidature is more than the number of persons to be co-opted, the elected Councillors are required to proceed to co-opt the persons in the manner specified. Sub-rule (3) of Rule 5 provides that the co-option of persons shall be made in accordance with the system of proportional representation by means of the single transferable vote.
6. These are the relevant rules which are to be noticed for the purposes of disposal of this petition.
7. The last date for the nomination of candidates for the purpose of electing co-opted members was 14th of May, 1985. The petitioner and respondents Nos. 2 to 7 in this petition were the candidates proposed. Respondents No. 1 had proposed the candidature of respondent No. 6. On scrutiny of the nomination papers, the forms of respondents Nos. 2 to 7 were held to be invalid on the ground that they had been delivered to the Chief Officer by the candidates themselves and not by the proposers as mentioned in Rule 3 and in the Form. The petitioner’s nomination paper alone was held to be valid and he was therefore, declared as elected, because Rule 5(1), as already noticed above, provides for declaration of a person as elected if the number of validity nominated candidates is less than the number of persons to be co-opted. In terms of the same rule, a fresh meeting had to be called for the election of the second co-opted member and this done on 22nd May, 1986.
8. Respondents Nos. 5 to 9 filed their nominations duly proposed by the Councillors and an election was held. In this election, respondent No. 5 was declared as elected. Respondent No. 1 thereafter filed an election petition under section 21 of the Maharashtra Municipalities Act, which was numbered as Election Petition No. 11 of 1985 and was heard and allowed by the learned Additional District Judge of Nanded by his judgment and order dated 8th of November, 1985.
9. At this stage, it may also be noted that respondent No. 1 who had nominated respondent No. 6 on the previous occasion, had again nominated respondent No. 6 for the second election and the second nomination was held to be valid, though ultimately respondent No. 6 was not successful in the election. Respondent No. 1 challenged the election of respondent No. 5 by contending, among other things, that the second election itself was wholly unnecessary, in fact invalid, inasmuch as if the nomination of respondent No. 6 for the election held on 15th of May, 1985 was held to be valid, then two members would be necessarily declared as having been elected. Therefore the second election which was held on 22nd of May, 1985 would be rendered entirely superfluous. It was in the second election that respondent No. 5 was elected. Therefore, it should be held that her election was invalid.
10. The first respondent necessarily urged, therefore, before the learned Additional District Judge that the nomination paper of respondent No. 6 was wrongly rejected on the ground that it had not been presented by the proposer as required by Rule 3. Indeed, the contention of the first respondent was before the learned Additional District Judge, and is before me, that the nomination paper of the sixth respondent was presented by him though a wrong endorsement has been made by the Chief Officer.
11. The learned Additional District Judge unfortunately did not decide the question as to whether the nomination paper of respondent No. 6 was, in fact, presented by respondent No. 1 or not. Without deciding this question, deeming it to be unnecessary, the learned Additional District Judge proceeded to decide the question of law. The question to which he addressed himself was whether the delivery of nomination papers by the candidates and not by the proposers was a defect of a substantial nature on which ground alone the presiding authority could have rejected the nomination paper. Then, the learned Additional District Judge thought that it was not a defect of substantial nature. The foundation of his reasoning is to be found in the following observations in paragraph 13 of his judgment :
“In Rule No. 3 the verb used is ‘may’ and not ‘shall’. That’s why it is not essential or incumbent on the Councillors who nominate the candidates for co-option to deliver themselves the nomination papers.”
So holding the learned Additional District Judge allowed the election petition. Since he thought that all the candidates should get opportunity to contest the election, he declared the election of respondent No. 5 also as void. Respondent No. 5 has not challenged the order of the learned Additional District Judge. The effect of the order of the learned Additional District Judge is to place all the parties the position of ante-15th of May, 1985 on the basis that the nomination papers which had been rejected on the ground that they had not been presented by the proposers should be deemed to be valid and the holding of fresh election.
12. The petitioner, who was respondent No. 1 before the learned Additional District Judge, has challenged the view taken in the election petition by the learned Additional District Judge.
13. Mr. Bora, the learned Advocate appearing in support of the petition, has taken me through the judgment of the learned Additional District Judge as well as through the relevant provisions of the Act and the rules to which I have already made a reference. He has urged that the view of the learned Additional District Judge that the nomination paper, without inviting the possibility of being declared invalid, could be presented either by the proposer or by the candidate is erroneous. If one looks to the entire scheme of the Act and the rules and the language used both by the Legislature and the rule-making authority it is clear, says Mr. Bora, that what was contemplated both by the Legislature and the rule-making authority was the presentation of the nomination paper by the proposer himself and no one else. The use of a particular language in the Act as well as in the rules leaves, according to him, no scope for alternative interpretation. After going through the provisions of the Act and the Rules, I am inclined to uphold this contention of Mr. Bora. As already mentioned above, section 9 lays down that certain persons could be co-opted by election as members of the Municipal Council, but this co-option by election has to be done in the prescribed manner. The section itself does not make any provision for the manner of the election which is left entirely to the rules. Rule 3 provides for the nomination, which is to be done by any elected Councillor. The nomination has to be made in the Form appended to the rules. Rule 3 also provides that the nomination of any person may be made “by delivering to the Chief Officer a nomination paper.” Sub-rule (2) of Rule 3 enjoins upon the Chief Officer, on receipt of a nomination paper, to fill in the endorsement on the Form. The endorsement mentioned in the Form specifically states, “This nomination paper was delivered to me by……………(name of proposer)…”. The language Form would be rendered meaningless if Rule 3(1) is interpreted in any other manner than the one canvassed by Mr. Bora. The fact that Rule 3(1) stipulates that the nomination has to be done in the Form to be delivered to the Chief Officer will be again rendered meaningless if it is held that the Form can be delivered or caused to be delivered. The language used in the Form, which itself must be taken to be the part of the rule, also compels me to hold that the nomination paper must be delivered by the proposer himself. If it were to be otherwise, the Form would have provided for an alternative mode of endorsement saying, for example, that “the nomination paper has been delivered by the proposer or by the candidate himself”. The rule-making authority necessarily thought it fit to maintain a consistency between the language of Rule 3(1) and the Form which itself is a part of Rule 3(1).
14. The intention of the rule-making authority must have been to secure satisfaction on the part of the Chief Officer that the nomination paper which is signed by a member of the Council is genuine one. It is the Chief Officer who receives the nomination paper and it is implicit that he must be knowing the Councillors who would be delivering the nomination papers. It is, under these circumstances, he is in a position to make endorsement that the nomination paper was delivered by a proposer who is necessarily a Councillor.
15. Some other evidence is available in the rules which supports the interpretation. I am inclined to make of the present rules. In Rule 4 which deals with the scrutiny of nominations and withdrawal of candidature, there is a provision, as already noted in the earlier part of this judgment, for a candidate to withdraw his candidature. This he can do by notice in writing subscribed by him and delivered to the presiding authority. It is then provided that such notice may be delivered either by the candidate himself or by his proposer, duly authorised by the candidate in this behalf. The rule-making authority thought it fit to make an alternative mode of delivery in the case of withdrawal of candidature, but also thought it fit to insist upon a single mode of delivery as far as the nomination of a candidate is concerned. If rules are to be interpreted rationally, then one must hold that there is an obligation of delivering the nomination paper in a particular manner, while there are two courses open for the delivery of the papers relating to withdrawal of candidature. The mode of delivery mentioned in Rule 4(3) cannot, by implication also, be imported in Rule 3(1). If the interpretation that any mode of delivery could be restored to under Rule 3(1) is accepted then there will be no reason as to why the nomination paper can not be presented even by the candidates. Any person can deliver the same to the Chief Officer on behalf of the proposer. But, this could never be the intention of the rule-making authority, for the simple reason that the endorsement of the Chief Officer, which forms part of the Form and also part of Rule 3, provides for the endorsement in a particular language only and that language requires that the nomination paper be delivered by the proposer himself.
16. It will not be in appropriate to notice at this stage analogous provisions in some other statutes and rules. The Representation of the People Act, 1951, naturally deals with the nomination of candidates for election. Section 33 of that Act is entitled “Presentation of nomination paper and requirements for a valid nomination”. It then provides that each candidate shall, “either in persons or by his proposer” deliver to the returning officer a nomination paper completed in the prescribed form, Rule 12 of the Maharashtra Municipalities Election Rules, 1966, lays down that the nomination paper duly completed and signed by the candidate and by a voter of the ward as proposer shall be delivered to the returning officer by each candidate, “either in person or by his proposer”. The Maharashtra Municipalities Election Rules can be safely regarded as belonging to the family of the rules framed under the Maharashtra Municipalities Act, to which the Maharashtra Municipal Council (Co-option of Councillors) Rules can also be said to belong. Since the rule-making authority under the Maharashtra Municipalities Act is the same, the fact that different language was used for presentation of nomination papers in two different situations necessarily must mean that different procedures were to be followed.
17. The Bombay Village Panchayats Election Rules, 1959, framed under the Bombay Village Panchayat Act, 1958, may also be noticed in passing. Rule 8 of the said rules provides that each candidate shall make an application in writing in Form ‘A’ signed by him and present it “either in person or through a representative authorised in writing in this behalf by such candidate”.
18. It is, therefore, clear to as that wherever the election law permitted presentation of a nomination paper either by the candidate or by some other person on his behalf, it has been so provided. The fact that a contrary provision, namely, that the delivery of the nomination paper shall be made by the proposer, in the present rules must necessarily mean that it has got to be done in that particular manner only. This is also supported by the language used by the rule-making authority for the endorsement on the nomination paper.
19. Mr. Chapalgaonkar, the learned Advocate appearing for respondent No. 1 who espousing the cause of respondent No. 6, supported the reasoning adopted by the learned Additional District Judge by analysing the Form which is to be submitted under Rule 3(1). He canvassed a view, the view which cannot be said to be wholly wrong, that the language of the endorsement of the Chief Officer cannot be said to be wholly wrong, that the language of the endorsement of the Chief Officer cannot be said to be of such a nature as to be complied with strictly. After all, what is important in the election is the qualification of the candidate, which qualification depends upon several factors, mention for which has been provided for in the nomination paper. For example, the name of the candidate, residential address of the candidate, age of the candidate, sex of the candidate, etc., are to be given in the nomination paper. Similarly, the details of the special knowledge or practical experience of the candidate, which are a part of the qualification for a person to be co-opted as a member of the Council, are also to be mentioned in the nomination paper. Mr. Chapalgaonkar suggests that if any of these particulars were missing, then, conceivably, one could hold that the nomination paper was incomplete which would result in a defect of substantial nature. In this case alone, the nomination paper could be legitimately rejected. I have no doubt, these submissions are valid insofar as they relate to the particulars of the candidate. But for this reason alone, I am reluctant to accept the further submission of Mr. Chapalgaonkar that the form of endorsement at the foot of the nomination paper is immaterial and the delivery of the nomination paper even if made by a person other than the proposer could not be said to be invalid. I have already given my reasons above and for the same I am reluctant to accept the argument of Mr. Chapalgaonkar.
20. Looking to the language of Rule 3(1) while analysing the purpose for which the provision has been made and its nature, the difference in the language used by the rule-making authority in Rules 3 and 4 and looking also to the provisions in other cognate election law. I am of the opinion that Rule 3(1) requires that the nomination paper must be delivered by the proposer and it is not enough if it is caused to be delivered by the proposer. The view of the learned Additional District Judge, in my opinion, therefore, is incorrect.
21. The result of allowing this petition would be to direct the learned District Judge to decide on the disputed question of fact before him, namely, as to whether the nomination papers of respondents Nos. 2 to 7 were presented to the Chief Officer by the proposers or not. If he comes to the conclusion that the nomination papers of respondents Nos. 2 to 7 were not delivered by the proposers to the Chief Officer, then the election petition filed by respondent No. 1 before the District Court will have to be dismissed and the election of the petitioner and respondent No. 5 will have to be upheld. If, however, he comes to the conclusion that the nomination papers of one or more of respondents Nos. 2 to 7 were delivered by the proposers themselves, then he will have to work out the consequences of the same in accordance with law.
22. The petition is thus partly allowed. No order as to costs.