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PETITIONER: GULAM YASIN KHAN

       Vs.

RESPONDENT: SHRI SAHEBRAO YESHWANTRAO WALASKAR & ORS.

DATE OF JUDGMENT: 17/01/1966

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. SIKRI, S.M. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1339            1966 SCR  (3) 339

ACT: Central  Provinces  & Berar Municipalities Act,  1922  (C.P. Berar Act 2 of 1922), s. 15(1)--candidate’s son employed  by Municipality-Whether disqualification.

HEADNOTE: The  appellant  and  respondent No. 1  were  candidates  for election  as members to the Municipal  Committee,  Malkapur. Respondent  No. 1 objected, at the time of scrutiny, to  the candidature  of  the  appellant  on  the  ground  that   the appellant had an interest in the Municipal Committee because his  son was employed by the Committee and so, he  was  dis- qualified  from standing for election under s. 15(1) of  the Central  Provinces  & Berar Municipalities Act,  1922.   The appellant  disputed the validity of the objection by  saying that his son was not staying with him and had no  connection with him whatsoever.  The appellant and his sons were living in  the  same  house,  but each one  lived  in  the  portion allotted to him, and messed separately.  Though the  ration- card  was in the name of the appellant for the whole  family and the income shown therein as the income of the family was only  that of the appellant, the earnings of the  sons  were not  utilized for purposes of the family.   The  Supervising Officer overruled the objection.  Thereupon, respondent  No. 1  filed  a writ petition in the High Court,  in  which  the objection was upheld.  In appeal to this Court, HELD : The mere relationship of a person with an employee of the Municipal Committee does not justify the inference  that such  a  person  has  interest direct  or  indirect  in  his employment  under the Municipal Committee.  The interest  to which   s.  15(1)  of  the  Act  refers  cannot  mean   mere sentimental  or  friendly interest; it  must  mean  interest which  is  pecuniary, or material, or of a  similar  nature. Hence  the  enquiry should be not whether the  appellant  is interested   in  his  son  but  whether  the  appellant   is interested in the employment of his son. In  the circumstances of this case, all that was proved  was the mere relationship between the appellant and his son  who was the employee of the Municipal Committee.  Therefore, the

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conclusion  of the High Court, based on  that  relationship, was erroneous. [341 H; 342 E-F; 343 F]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 936 of 1965. Appeal  by special leave from the judgment and  order  dated April  17, 1964 of the Bombay High Court (Nagpur  Bench)  at Nagpur in Special Civil Application No. 173 of 1964. M.   C. Setalvad and A. G. Ratnaparkhi, for the appellant. K.   L.  Gauba, D. D. Verma, S. S. Khanduja and Ganpat  Rai, for the respondents. The Judgment of the Court was delivered by Gajendragadkar,  C. J. The appellant, Gulam Yasin Khan,  and respondent No. 1, Sahebrao Yeshwantrao Walaskar, were candi 340 dates  for election as members to the  Municipal  Committee, Malkapur,  District  Buldana, from Ward No.  17.   The  date fixed for filing the nomination papers was 16th March, 1964, and  the date for scrutiny was 18th March, 1964.   Both  the appellant  and respondent No. 1 had filed  their  nomination papers as required by the relevant Rules.  When the stage of scrutiny arrived, respondent No. 1 objected to the  validity of  the candidature of the appellant.  He alleged  that  the appellant’s son Khalildad Khan was a Moharir on Octroi  Naka employed  by  the  Municipal Committee; as such,  he  was  a servant  of the Committee.  According to respondent  No.  1, the  employment  of  the appellant’s son  by  the  Municipal Committee  showed that the appellant had an interest in  the Municipal  Committee;  and  so,  he  was  disqualified  from standing  for  election under section 15(1) of  the  Central Provinces  and  Berar Municipalities Act, 1922 (No.   11  of 1922)   (hereinafter  called  ’the  Act’).   The   appellant disputed  the validity of this objection.  He  alleged  that his son was not staying with him and had no connection  with him whatsoever. On the 18th March, 1964, the Supervising Officer  over-ruled the  objection raised by respondent No. 1. He held  that  on the  facts  brought to his notice, s. 15(1) of the  Act  was inapplicable.  Aggrieved  by this order, respondent No. 1 filed a  Special Civil Application No. 173 of 1964 under Articles 226 and 227 of  the  Constitution before the Bombay High  Court  (Nagpur Bench) on the 3rd April, 1964.  By his petition,  respondent No.  1  urged that the decision of the  Supervising  Officer over-ruling   his  objection  to  the  candidature  of   the appellant was patently invalid in law; and so, he asked  for a writ, order or direction of an appropriate nature  setting aside  the  impugned order of the  Supervising  Officer  and prohibiting  him from holding the election from Ward No.  17 as scheduled on the 19th April, 1964. This writ petition was resisted by the appellant on the same grounds  which he had urged before the Supervising  Officer. The  High  Court, however, upheld the  objection  raised  by respondent  No.  1,  set  aside  the  order  passed  by  the Supervising  Officer,  and  held  that  the  appellant   was disqualified from standing for election under s.15(1) of the Act.  In consequence, it directed that the nomination  paper filed by the appellant should be rejected.  It appears  that from Ward No. 17, only two nomination papers had been filed- one  of the appellant and the other of respondent No. 1.  In view of the fact that after the rejection of the  nomination paper  of  the  appellant, respondent No.  1  was  the  only candidate who had offered for election on behalf of Ward No.

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17,  the High Court declared that respondent No. 1 had  been duly  elected  from  the  said Ward.   It  is  against  this decision  that  the  appellant has come  to  this  Court  by special leave; and the short question which has 341 been  argued  before  us by Mr. Setalvad on  bahalf  of  the appellant  is  that the High Court erred in law  in  holding that  on  the facts proved in this case, the  appellant  was disqualified for being nominated as member of the  Municipal Committee under s. 15(1) of the Act. Before  dealing with this point, it is relevant to refer  to the  facts which have either been found or admitted  in  the present  proceedings.   It appears that  the  appellant  has three  adult  sons, including Khalildad Khan  who  has  been employed by the Municipal Committee.  The three sons and the father  live in the same house, but mess  separately.   They have  no share in each other’s income.  The earnings of  the sons  and the father are not put into the common  hotch-pot. There  are  separate living arrangements in the  house,  and each  one lives in a portion of the house allotted  to  him. It  is  true  that the ration card is in  the  name  of  the appellant for the whole family, but it is admitted that  the income of Rs. 2,000 which is shown in the ration card as the income of the family is the income of the appellant himself; it does not include the income earned by his sons, and it is plain  that the salary earned by Khalildad Khan is  used  by himself for the maintenance of his own family.  There is  no doubt  that  the appellant and his sons  being  Mohammedans, cannot  be said to be members of an undivided family in  the sense in which that expression is used in regard to  Hindus. It is in the light of these facts that we have to decide the question  as to whether the High Court was right in  holding that  the appellant was disqualified under s. 15(1)  of  the Act. The Act was passed in 1923 to make better provision for  the Organisation and administration of. municipalities in Madhya Pradesh.   It  contains  provisions which are  true  to  the pattern  of municipal legislation of this type.   Naturally, one   of   its   sections  deals  with   the   question   of disqualification of candidates as in all municipal Acts;  it is  section 15.  Section 15 by clause (1) provides  that  no person shall be eligible for election, selection or  nomina- tion as a member of a Committee, if such person had directly or indirectly any share or interest in any contract with, by or  on behalf of the Committee, while owning such  share  or interest. The question which we have to consider is whether by  virtue of  his relationship with Khalildad Khan, the appellant  can be  said  to  have any indirect share  or  interest  in  the employment  of Khalildad Khan with the Municipal  Committee. We  are assuming for the purpose of dealing with this  point that  the  contract  to which clause  (1)  refers,  includes employment,  though unlike other similar statutes, the  word "employment"  is  not  specifically mentioned  in  the  said clause.  In order to incur disqualification, what the clause requires  is  "interest or share in any  contract";  it  may either be a share or an interest; and if it is an  interest, the interest may be direct or 342 indirect.   But it is plain that the interest to  which  the clause  refers,  cannot mean mere  sentimental  or  friendly interests;  it  must mean interest which  is  pecuniary,  or material or of a similar nature.  If the interest is of this latter category, it would suffice to incur  disqualification even  if  it  is indirect.  But it is  noticeable  that  the

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clause   also   requires   that  the   person   who   incurs disqualification  by such interest must "own such  share  or interest".   It  is not easy to determine the scope  of  the limitation  introduced by this last sub-clause.   Mr.  Gauba for  respondent  No. 1 urged that the  clause  "owning  such share  or interest" is tautologous when it refers to  direct interest  or  share, and is meaningless when  it  refers  to indirect  share  or interest.  Prima facie,  there  is  some force  in  this contention; but whatever may  be  the  exact denotation  of  this clause, it does serve  the  purpose  of limiting the character of the share or interest which incurs disqualification prescribed by the clause, and it would  not be  easy to ignore the existence of the last portion of  the caluse altogether. It  is  quite  true  that the  purpose  and  the  object  of prescribing  the  several  disqualifications  enumerated  in clauses  (a)  to (1) of s. 15 of the Act is  to  ensure  the purity of the administration of municipal Committees, and in that sense, it may be permissible to hold that the different clauses  enumerated  in  section 15 should  not  receive  an unduly  narrow or restricted construction.  But even  if  we were to adopt a liberal construction of s. 15(1), we  cannot escape  the conclusion that the interest or share has to  be in  the contract itself When we are enquiring as to  whether the  appellant is interested directly or indirectly  in  the employment  of his son we cannot overlook the fact that  the enquiry is not as to whether the appellant is interested  in the.  son,  but  the enquiry is  whether  the  appellant  is interested  in the employment of the son.   The  distinction between  the  two enquiries may appear to  be  subtle,  but, nevertheless,  for the purpose of construing the clause,  it is  very relevant.  Considered from this point of  view,  on the facts proved in this case, we find it difficult to  hold that by mere relationship with his son, the appellant can be said  to be either directly or indirectly interested in  his employment. Incidentally,  we  may point out that clause (k)  of  s.  15 refers to the disqualification resulting from the fact  that the  person concerned holds any office of profit  under  the Committee.   In other words, it deals with a case where  the person  offering  for election himself holds any  office  of profit under the Committee; and naturally, that  constitutes a disqualification.  Having referred to the case of a person holding an office of profit under the Committee, clause  (1) does  not refer to employment in terms, though, as  we  will presently  point out, similar provisions in other  municipal Acts  refer to employment in this context.  But quite  apart from  this  consideration, it is not easy to hold  that  the appellant owns any 343 kind  of  interest  in the employment of  his  son  or  even otherwise  is directly or indirectly interested in the  said employment. This question has, in a sense, become academic, because  the Act  has  been  repealed  by Maharashtra  Act  40  of  1965. Section  16(1)  (i)  of this repealing Act  deals  with  the question covered by s. 15(1) of the Act.  Section 16(1)  (i) provides  that  no  person shall be qualified  to  become  a Councillor  wheather  by election, cooption  or  nomination, who,   save  as  hereinafter  provided,  has   directly   or indirectly, by himself or his partner, any share or interest in  any work done by order of a Council or in  any  contract with  or under or by or on behalf of a Council.   There  are several   other  clauses  of  section  16(1),  but   it   is unnecessary to refer to them.

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As we have already indicated, corresponding provisions deal- ing  with disqualifications contained in  similar  municipal Acts   refer   to  ’employment’  in  terms.    By   way   of illustration,  we  may  refer to section 12(2)  (b)  of  the Bombay  Municipal  Boroughs Act, 1925 (No. 18 of  1925);  it provides  that no person who, save as hereinafter  provided, has  directly or indirectly, by himself or his partner,  any share   or  interest  in  any  work  done  by  order  of   a Municipality or in any contract or employment with or  under or by or on behalf of a Municipality, may be a Councillor of such   Municipality.   Similarly,  the   Bombay   Provincial Municipal  Corporations Act, 1949 (No. 59 of 1949)  provides by section 10(1) (f) that a person shall be disqualified for being elected and for being a Councillor if such person  has directly or indirectly, by himself or his partner, any share or  interest  in any contract or employment with, by  or  on behalf of the Corporation. It  would,  we  think, be unreasonable  to  hold  that  mere relationship  of a person with an employee of the  Municipal Committee  justifies  the inference that such a  person  has interest,  direct or indirect, in the employment  under  the Municipal Commitee.  In the circumstances of this case, what is proved is the mere relationship between the appellant and his son who is the employee of the Municipal Committee;  and on that relationship the High Court has based its conclusion that  the  appellant is disqualified under s. 15(1)  of  the Act.  We are satisfied that this conclusion is erroneous  in law. The  result is, the appeal is allowed, the order  passed  by the High Court is set aside, and the declaration granted  by the  High Court that respondent No. 1 is duly  elected  from Ward  No. 17 is reversed.  Respondent No. 1 should  pay  the costs of the appellant throughout. Appeal allowed. M10Sup.CI/66-9 344