Mangoo Singh vs The Election Tribunal, Bareilly and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 8 of 1957

Decision Date: 17 September 1957

Coram: S.K. Das, Natwarlal H. Bhagwati, P.B. Gajendragadkar

Mangoo Singh filed a petition against the Election Tribunal of Bareilly and other respondents, and the matter was decided by the Supreme Court of India on 17 September 1957. The judgment was written by Justice S.K. Das, and the bench comprised Justices S.K. Das, Natwarlal H. Bhagwati and P.B. Gajendragadkar. The case was cited as 1957 AIR 871 and 1958 SCR 418 and concerned the application of the Uttar Pradesh Municipalities Act, 1916 (U.P. 11 of 1916) to a municipal election dispute involving the disqualification of a candidate who was in arrears of municipal tax. The specific provisions examined were section 13‑D, clause (g), sections 166 and 168 of the Act, together with paragraph 22(2) of the Uttar Pradesh Municipalities (Conduct of Election of Members) Order, 1953. The appellant, Mangoo Singh, had been elected to the municipal board under the Act, but at the time of filing his nomination he owed municipal tax in excess of one year’s demand, a condition that invoked section 166. He subsequently paid the arrears before the date of the poll. Section 13‑D, clause (g) provides that a person is disqualified both from being chosen as and from being a member of a board if he is in arrears of municipal tax or other dues exceeding one year’s demand to which section 166 applies, but it adds that the disqualification ceases as soon as the arrears are paid. The Election Tribunal, acting on an election petition filed by a defeated candidate, set aside the election on the ground that the appellant did not benefit from the proviso to section 13‑D, clause (g). The appellant argued that the relevant date for disqualification should be the poll date and that he did not fall within the mischief of the disqualification clause because no tax demand bill had been presented to him and no notice of demand had been served under section 168. The Court held that if a person is disqualified on the date of nomination, he cannot be chosen as a candidate under section 13‑D because the disqualification attaches at that moment and the election process comprises a series of steps beginning with nomination and ending with the declaration of results. The Court further explained that the removal of the disqualification does not have retrospective effect, and a disqualification existing on the nomination date cannot be cured by a later payment of tax arrears. The Court relied on the decisions in Chatturbhuj Withaldas Jasani v. Moreshway Parashram and Others (1954) SCR 817, N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency and Others (1952) SCR 218, Harford v. Linskey (1899) 1 QB 852, and affirmed the earlier judgment of Ahmed Hossain v. Aswini Kumar, AIR 1953 Cal 542.

In this case the Court held that the phrase “to which section 166 applies” appearing in clause (g) of section 13‑D of the Uttar Pradesh Municipalities Act is only a description of the nature or type of dues referred to in that provision. The effect of that description, the Court said, is that the demand mentioned in clause (g) must be of the same nature or type as the dues to which section 166 is applicable. The Court also explained that the word “demand” in the same clause should be understood in its ordinary meaning as “claim” or “due”. Accordingly, the term refers solely to the amount of arrears or dues on which the disqualification depends and does not bring within its operation the provisions of section 168 of the Act.

The matter before the Supreme Court was an appeal under civil appellate jurisdiction, designated Civil Appeal No. 8 of 1957. The appeal challenged the judgment and order dated 30 August 1955 of the Allahabad High Court in Special Appeal No. 8 of 1955, which itself arose from the judgment and order dated 10 December 1954 of a single judge of the Allahabad High Court in Civil Miscellaneous Writ No. 1245 of 1954. Counsel for the appellant and counsel for the respondent were instructed. The appeal was filed on 17 September 1957, and the judgment was delivered by Justice S. K. Das. The Supreme Court entertained the appeal on the basis of a certificate issued by the High Court of Allahabad on 3 February 1956, which held that the case was fit for hearing under article 133(1)(c) of the Constitution. The central question for determination was the true scope, meaning and effect of clause (g) of section 13‑D of the Uttar Pradesh Municipalities Act, 1916 (U.P. II of 1916). The factual background, which was not in dispute, related to a general election to the Municipal Board of Bareilly held in October 1953. The appellant, Mangoo Singh, and respondent No. 3, Imdad Husain, together with several other candidates, contested the election from Ward No. 15. The deadline for filing nominations was 5 October 1953 and the scrutiny of nominations took place on 7 October 1953. Both the appellant and respondent No. 3 filed their nominations within the prescribed time limit. During the scrutiny stage, Imdad Husain raised an objection to the appellant’s nomination on the ground that the appellant was disqualified under clause (g) of section 13‑D because he was in arrears in the payment of municipal tax exceeding one year’s demand. The objection was dismissed, and the Assistant Returning Officer accepted the appellant’s nomination. The poll was conducted on 26 October 1953 and the counting of votes was completed on 29 October 1953. Four persons were to be elected from the ward; the appellant secured the third highest number of votes, while Imdad Husain placed fifth. Consequently, the appellant was declared one of the returned candidates.

In the present case Imdad Husain filed an election petition seeking to set aside the election of the appellant on several grounds, but only the ground concerning disqualification under clause (g) of section 13‑D of the Act is presently before the Court. The petition was heard by the Election Tribunal, which on 20 October 1954 held that the appellant was in arrears of municipal tax in excess of one year’s demand, a condition to which section 166 of the Act applied, and therefore fell within the disqualification prescribed by clause (g) of section 13‑D. The Tribunal further observed that the appellant’s payment of a sum of Rs 115‑3‑0 on 10 October 1953, made five days after the deadline for filing nominations, did not remove the disqualification, and that the appellant could not claim the benefit of the second proviso to section 13‑D. Moreover, the Tribunal found that no tax bill had been served on the appellant as required by section 166, nor had any demand notice been issued to him as mandated by section 168 of the Act. On these findings the Tribunal allowed the election petition, declared the appellant’s election void, and created a casual vacancy under clause (a) of sub‑section (2) of section 25 of the Act; that vacancy was subsequently filled by the election of the third respondent on 5 April 1955. The next municipal general election was scheduled for October 1957. Dissatisfied with the Tribunal’s decision, the appellant approached the High Court of Allahabad for a writ under article 226 of the Constitution, contending that the Tribunal erred in its interpretation of clause (g) of section 13‑D. Justice Cha Turvedi, who adjudicated the petition, accepted the Tribunal’s view of the law and dismissed the application. The appellant then appealed to a Division Bench of the same High Court, but Justices Agarwala and Sahai also dismissed the appeal by their judgment dated 30 August 1955. Subsequently the appellant obtained a certificate of fitness under article 133(1)(c) of the Constitution from the High Court. Counsel for the appellant has not disputed any factual findings of the Tribunal and has limited his submissions to the proper construction of clause (g) of section 13‑D, which reads: “Disqualifications for membership—A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as, and for being, a member of …”

Section 13‑D of the Act provides that a person shall be disqualified both for being chosen as a member of a board and for being a member of a board if, among other grounds, the person is in arrears of municipal tax or other dues for more than one year, a condition to which section 166 relates. The provision further states that, in the case of arrears, the disqualification will cease as soon as the arrears are paid. The counsel for the appellant focused his argument on the expression “for being chosen as” that appears in the provision. He contended that a candidate becomes “chosen as a member of a board” at the moment the poll is held, when a majority of voters select him. Accordingly, he argued that the relevant date for the operation of the disqualification is the date of the poll. He pointed out that on 10 October 1953, a few days before the poll, the appellant had paid the municipal tax arrears that exceeded one year’s demand, and therefore, he was no longer in arrears on the polling date. The appellant submitted that, because the arrears were cleared before the poll, the disqualification could not attach to him on the poll date.

The Court was unable to accept this submission. It observed that the same phrase “shall be disqualified for being chosen as” is found in Article 102 of the Constitution and in section 7 of the Representation of the People Act, 1951. The Court referred to its earlier decision in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and Others, where the issue was the point at which the disqualification in clause (d) of section 7 of the Representation of the People Act, 1951, arose. In that case the Court held that the date of filing nominations is a crucial stage, stating that the “choice” is made through a series of steps that begin with nomination and end with the announcement of the election, and that a disqualification attaching at any of those stages prevents the person from being chosen. The Court also cited N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency and Others, emphasizing that an election is a continuous process comprising several stages, with nomination forming the foundation of a candidate’s right to contest. Consequently, if a person is disqualified at the nomination stage, he cannot be chosen as a candidate. The Court further noted that paragraph 22(2) of the Uttar Pradesh Municipalities (Conduct of Election of Members) Order, 1953, expressly empowers the Returning Officer to refuse a nomination on grounds that the candidate is disqualified for being chosen to fill the seat, confirming that the disqualification attaches at the nomination stage rather than only on the day of the poll.

Sub‑paragraph 22(2) of the Uttar Pradesh Municipalities (Conduct of Election of Members) Order, 1953, required the Returning Officer to examine each nomination paper, to decide any objections raised to a nomination, and, either on the basis of such objection or on his own motion and after any summary inquiry he deemed necessary, to refuse any nomination on one of several specified grounds. The grounds listed were: (a) that the candidate was not qualified to be chosen to fill the seat under the Act; (b) that the candidate was disqualified for being chosen to fill the seat under the Act; (c) that there had been any failure to comply with any of the provisions of paragraphs 16 and 17; or (d) that the signature of the candidate or any proposer or seconder was not genuine or had been obtained by fraud. The Court observed that if the disqualification created by clause (g) of section 13‑D of the Act were intended to take effect only on the day of the poll, then it would be unnecessary for the Returning Officer to consider that disqualification at the stage of scrutiny, and it would be improper for him to refuse a nomination on that ground. The same expression “disqualified for being chosen” appeared in clause (b) of paragraph 22(2), which the Court interpreted as indicating that the act of choosing began not on the day of the poll alone but from the date on which nominations were filed. In this sense, the process of choosing a candidate commenced with the filing of nominations, as supported by the citation of (1) [1952] S.C.R. 218.

The Court then turned to the second proviso to section 13‑D. Counsel for the appellant contended that the proviso rendered the disqualification transient, so that once the municipal tax arrears were paid on 10 October 1953 the appellant was no longer disqualified and therefore could be chosen on the poll day of 26 October 1953. The argument advanced was that, for a transient disqualification, the second proviso should be read to mean that a disqualification existing on the day of nomination could be entirely removed by the subsequent payment of tax arrears; otherwise a person whose disqualification existed at nomination would be barred from standing even though the disqualification ceased before the poll day. The Court rejected this line of reasoning, noting that it was essentially the first argument in a different form. The Court held that the removal of disqualification under the second proviso did not operate retrospectively, and that a disqualification present on the date of filing nominations did not cease to exist on that same day merely because the arrears were later paid. In reaching this conclusion, the Court adopted the view expressed in Ahmed Hossain v. Aswini Kumar, (1) A.I.R. 1953 Cal. 542, where a similar question under the Bengal Municipal Act (Bengal XV of 1932) was considered and it was observed that a person disqualified on the date of nomination could not shed that pre‑existing disqualification by acquiring a new right between the nomination date and the date of scrutiny.

In the earlier case, the Court examined whether a person who was disqualified on the date of filing nominations could remove that disqualification by acquiring a new right before the date of scrutiny. The facts were that, on the material date – the last day for submitting nominations – the candidate was in arrears of municipal tax for more than three months and therefore fell within the mischief of el. (g) of amended a. 22(1) of the Bengal Municipal Act. The applicant argued that the municipal records listed the press, of which he was proprietor, as the tax assessee, and that his own name appeared on the electoral roll only because of his educational qualifications. The Court rejected this argument and, citing A.l.R. 1953 Cal. 542, observed that a person who is disqualified at the time of nomination cannot shake off the pre‑existing disqualification by acquiring a new right between nomination and scrutiny. The judgment also noted that other judicial authorities support the same principle.

Subsequently, the Court referred to the decision in Harford v. Linskey (1), where a similar issue arose under the Municipal Corporations Act, 1882, s. 12, which provides that “a person shall be disqualified for being elected and for being a councillor” while he is interested in contracts with the corporation. The petitioner in that case admitted that at the time of his nomination he had an interest in such contracts, but contended that he would have removed the disqualification before the polling day and therefore should not be considered disqualified for nomination. The Court, through Wright J., held that, in the absence of any guide, the safest approach was to treat a person who is disqualified at the nomination stage as also disqualified for nomination. Wright J. explained that nomination is an essential part of the election and, if there are no other competitors, it constitutes the election by virtue of the express words of s. 56.

Wright J. warned that any other construction would create considerable confusion because, on nomination day, it is impossible to know whether the nominated individuals will eventually become effective candidates at the poll. He acknowledged that a disqualification might be removed before the election is completed, but questioned what should happen if the disqualification persisted until the poll began, continued through the middle of polling, or lasted until the close of the poll. He asked whether votes cast before the removal of the disqualification would be valid, and if not, how the number of such votes could be ascertained. The Court concluded that it would be unreasonable to hold that the disqualification could be ignored in such circumstances.

In this case, the Court observed that to leave the issue unresolved would create uncertainty, and for that reason, citing (1999) 1 Q.B. 852, 858, it concluded that the petitioner was disqualified from nomination or election. The Court further warned that the same uncertainty and confusion noted earlier would arise if it accepted the construction advocated by counsel for the appellant. The appellant argued that the phrase “to which section 166 applies” in clause (g) of section 13‑D requires that a bill for the amount due be presented to the liable person, as mandated by section 166, before the person can fall within the mischief of the clause. The appellant also contended that the use of the word “demand” makes it necessary that a demand notice be served in accordance with section 168 of the Act. Relying on the finding of the Election Tribunal that no bill had been presented to him and no demand notice had been served, the appellant submitted that he could not be caught by the mischief of the clause. The Court then reproduced the language of sections 166 and 168. Section 166 provides that as soon as a person becomes liable for the payment of (a) any sum on account of a tax, other than an octroi, toll or any similar tax payable upon immediate demand, or (b) any sum payable under clause (c) of section 196 or section 229 or section 230 in respect of the supply of water, or payable in respect of any other municipal service or undertaking, or (c) any other sum declared by the Act or by rule or bye‑law to be recoverable in the manner prescribed by the chapter, the board shall, with all convenient speed, cause a bill to be presented to the persons so liable. Section 166(2) adds that unless a rule provides otherwise, a person is deemed to become liable for the payment of every tax and licence fee at the commencement of the period for which such tax or fee is payable. Section 168 states that if the sum for which a bill has been presented is not paid in the municipal office or to a person empowered by regulation within fifteen days of presentation, the board may cause a notice of demand, in the form set out in Schedule IV or of a similar effect, to be served on the liable person. After considering these provisions, the Court expressed the view that the expression “to which section 166 applies” cannot be given the meaning proposed by the appellant. The Court held that the phrase simply describes the nature of the demand referred to in clause (g). The Court noted that section 166 identifies three categories of dues, and that sub‑section (1)(a) refers to

The Court explained that clause (a) of the provision covers any amount payable as a tax that is not an octroi, toll or any similar tax that must be paid immediately on demand; clause (b) covers amounts that are payable under sub‑clause (c) of section 196 or under sections 229 or 230 in relation to the supply of water and similar services; and clause (c) covers any other sum that the Act, a rule or a bye‑law declares to be recoverable in the manner prescribed by Chapter VI. Accordingly, a demand that falls within the scope of section 166 must be of the nature or type described in one of those three clauses. The demand referred to in sub‑clause (g) of section 13‑D must therefore also be of that same nature or type. The Court held that this is the proper meaning and effect of the expression “to which section 166 applies.” The Court further observed that the word “demand” does not trigger the operation of section 168. While it is generally accepted that “demand” means something more than a mere due – it implies that a claim has been called for or asked for – the meaning of a word must be read in the context in which it appears. In sub‑clause (g) the context makes clear that the term “demand” refers to the amount of arrears or dues on which the disqualification hinges, specifically “arrears in the payment of municipal tax or other dues in excess of one year’s demand.” In that context, “demand” can only mean “in excess of one year’s municipal tax or other dues.” The Court noted that dictionaries and law lexicons record several meanings of “demand,” but when the context dictates a clear meaning, it is unnecessary to search among the various definitions. Standard references even recognize that “demand” may simply denote a “claim” or a “due” without implying any further requirement that the person liable be called upon to pay. For these reasons, the Court held that none of the arguments advanced on behalf of the appellant could be accepted. The election petition was correctly decided, as the appellant was disqualified from being chosen as a member of the Municipal Board on the date he filed his nomination, pursuant to sub‑clause (g) of section 13‑D of the Act. Consequently, the appeal was dismissed with costs awarded to the respondent, who alone contested the appeal, and the appeal was dismissed.