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1977 DIGILAW 116 (GUJ)

NARMADASHANKER MAKANJI RAVAL v. NIRANJAN AMBALAL THAKORE

1977-12-02

B.J.DIVAN, N.H.BHATT

body1977
B. J. DIVAN, N. H. BHATT, J. ( 1 ) THESE three Letters Patent Appeals arise respectively out of the judgment of the learned Single Judge in Special Civil Applications Nos. 2166 of 1976 9 of 1977 and 134 of 1977 all of which were dismissed by the learned Single Judge confirming the order of the Election Tribunal i. e. the Civil Judge Senior Division Baroda that was pleased to set aside election of the appellants herein. The dispute concerns the municipal elections for electing the councillors for Baroda Municipal Corporation for Wards Nos. III and V. The nomination papers of one of the respondents in each of the two election petitions in these Wards had come to be rejected by the Returning Officer on the ground that they had indirect interest in the contract of employment or employment with the Corporation in so far as those candidates had executed surety bonds in respect of the contract of service by some employees of the Corporation. It is no longer in dispute before us that those prospective candidates whose nomination papers had come to be rejected by the Returning Officer had stood sureties for one or the other of the Municipal employees and the said surety bonds were in operation and in vogue at the time the nomination papers had come to be filed by those respective candidates. After the nomination papers were thrown out the election had taken place and the appellants in these Letters Patent Appeals along with some others had come to be declared duly elected. Two Election Petitions had come to be filed. The Election Petition No. 480 of 1975 had come to be filed in respect of election in Ward No. III and Petition No. 481 of 1975 had come to be filed in respect of the election of Ward No. V. Both had come to be filed by the candidates whose nomination papers had come to be rejected by the Returning Officer. After the rejection of the nomination papers of those respondents the election had taken place on 23rd November 1975 and results those come to be announced on 25th November 1975. The present appellants had come to be declared duly elected Thereafter the candidates whose nomination papers had come to be rejected by the Returning Officer had filed two petitions Nos. After the rejection of the nomination papers of those respondents the election had taken place on 23rd November 1975 and results those come to be announced on 25th November 1975. The present appellants had come to be declared duly elected Thereafter the candidates whose nomination papers had come to be rejected by the Returning Officer had filed two petitions Nos. 480 of 1975 and 481 of 1975 challenging the decisions of the Returning Officer. Their contentions were upheld by the Tribunal and the elections were set aside and fresh elections were therefore imminent. The successful candidates had therefore preferred Special Civil Applications Nos. 2166 of 1976 9 of 1977 and 134 of 1977. The learned Single Judge concurred with the conclusions reached by the Election Tribunal and dismissed those Special Civil Applications. Hence the Letters Patent Appeals. ( 2 ) IN both these cases in respect of the election to Wards Nos. III and V the bonds executed by the respective candidates are almost identical and we propose to reproduce the same with as faithful a translation as possible as follows :i. . . . . . . by this document become the surety for the above mentioned employee to the effect that he would discharge all the duties and assignments with efficiency as undertaken by him and if he commits default therein I bind myself to pay to the Corporation the sum of Rs. 100. 00 or to make good any amount of loss or damage that may be occasioned to the Corporation out of the default of the said municipal employee. I bind myself to pay the said amount personally. In Letters Patent Appeal No. 37 of 1977 instead of the sum of Rs. 100/ the sum of Rs. 300. 00 has been mentioned otherwise the language of the respondents bonds is identical. The Returning Officer held that the said respondents had incurred disqualification mentioned in sec. 10 (1) (f) of the Bombay Provincial Municipal Corporation Act 1949 which is reproduced below; 10 (1) Subject to the provisions of sec. 13 17 and 404 a person shill be disqualified for being elected and for being a councillor if such person (A) xx xx (b) xx xx (c) xx xx (d) xx xx (e) xx xx (F) subject to the provisions of sub- sec. 13 17 and 404 a person shill be disqualified for being elected and for being a councillor if such person (A) xx xx (b) xx xx (c) xx xx (d) xx xx (e) xx xx (F) subject to the provisions of sub- sec. (2) 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;onbehalf of the contending respondents it was not seriously challenged that this sort of bond furnished by them to the Municipal Corporation amounted to any interest in a contract with the Corporation. However it was urged on their behalf that clause (f) was subject to the provisions of sub-sec. (2 ). In other words it was urged that exception was applicable to the facts of the present case. Item (ii) of clause (b) of sub-sec. (2) of sec. 10 was pressed into service on behalf of the respondents For our purpose the said sub-sec. (2) would read as under : (2) A person shall not be deemed to have incurred disqualification under clause (f) of sub-sec. (1) by reason only of his (A) xxx (b) having any share or interest in (i) xx (ii) any agreement for the loan of money or any security for the payment of money only. THE concerned respondents had urged that even though the said agreement was for security and they could be said to have any interest or share in the said agreement it being an agreement or security for the payment of money only exception was well attracted and disqualification mentioned in clause (f) of sub-sec. (1) of sec. 10 of the Act was inoperative. This submission made on behalf of the concerned respondents found favour with the Election Tribunal and also with the learned Single Judge of this Court both of whom relying upon the case of the supreme Court in Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar and Another A. I. R. 1966 S. C. 1339 held that the nomination papers of those respondents were wrongly rejected by the Returning Officer and inevitable result thereof was setting aside election of the present appellants and ordering fresh election for those two Wards Nos. III and V of Baroda. It is this finding that has been seriously challenged on behalf of the appellants. III and V of Baroda. It is this finding that has been seriously challenged on behalf of the appellants. ( 3 ) AS said above application of clause (f) to the bond executed by the concerned respondents was not seriously challenged and for good reasons. If any person enters into a contract directly with the Municipal Corporation agreement quoted above is certainly an agreement there is no difficulty in holding that the concerned respondents had directly an interest in the said contract with the Corporation. The controversy however that was raised before us was regarding application of the exception contained in sub- sec. (2 ). Mr. J. G. Shah the learned Counsel appearing for those respondents has urged that by any stretch of imagination consequence of the above mentioned contract with the Corporation would be payment of money and none other. On behalf of the appellants at one stage it was contended that the term any security for the payment of money only applied only to ascertained or liquidated sum and not to unliquidated or unascertained sum. But we find no reason to limit the operation of the term money to the term liquidated sum of money for want of any valid reasons. It is one of the cardinal principles of inter- pretation that the words should be given their natural meaning and unless the context so requires no word or extra words should be supplied. The moot question therefore is whether the above mentioned agreement which concerns the respondents and which was entered with the Corporation can be said to be an agreement for security of payment of money only or it is something more. Three possible situations can be envisaged in such circumstances; an agreement may be for payment of money only an agreement may be for discharging some other duties and an agreement may be both for payment of money and for discharging some other obligations along with it. As per the terms of clause (ii) in sub-sec. (2) what is sought to be excepted is only one of the three categories and not the other two. Much therefore would depend on the interpretation of the agreement in question. As per the terms of clause (ii) in sub-sec. (2) what is sought to be excepted is only one of the three categories and not the other two. Much therefore would depend on the interpretation of the agreement in question. ( 4 ) AS found by us while translating the material part of the contract emphasis is on the assurance given by the concerned respondent to the Corporation to the effect that the concerned employee would faithfully discharge his duties which were to be discharged by him as employee of the Corporation. The concerned respondent stood surety for seeing that the concerned employee discharged his duties as a municipal employee faithfully and diligently and without committing any default or mistake. This is the first part of the agreement. In other words the agreement is for the due performance of the contract of employment by the concerned employee. The contract then proceeds further to provide for the eventuality that may arise on the non-fulfiment of the said promise expressly given by the employee and secured by the concerned respondent. First phase of the latter part of the agreement says that if the concerned employee does not discharge his duties as assured the concerned respondent would automatically be liable to pay a sum of Rs. 300 (in other case Rs. 100) to the Corporation without any ascertainment of extent of damage or loss occasioned thereafter. The second phase of this hinder part of the agreement then proceeds to say that if the concerned employee committed default in discharge of his duties and thereby caused any damage or loss to the Corporation that could be estimated in terms of money the concerned respondent undertook to make good such loss. When examined the said agreement therefore deals with three distinct though allied obligations undertaken by the concerned respondent. Firstly he undertook to see that the employee whose surety he stood would discharge his duties efficiently; the second obligation undertaken by him was to pay Rs. 300 or Rs. When examined the said agreement therefore deals with three distinct though allied obligations undertaken by the concerned respondent. Firstly he undertook to see that the employee whose surety he stood would discharge his duties efficiently; the second obligation undertaken by him was to pay Rs. 300 or Rs. 100 as the case may be on being called upon by the Municipal Commissioner in the case of the default by the concerned employee and on demand by the Commissioner without any proof of any actual loss or damage; the third part of the obligation is that the concerned respondent agreed to make good loss as estimated by the Municipal Commissioner without any limit as to the monetary extent. If we examine the abovementioned agreement in this way it is crystal clear that we cannot say that the agreement in question is an agreement for securing payment of money only and nothing further. This is essentially an agreement for giving assurance or security to the Corporation in respect of due discharge of the duties by the concerned employee. ( 5 ) MR. Shah however in this contention invited our attention to the scheme of the Bombay Provincial Municipal Corporations Act 1949 and particularly he invited our attention to sec. 4 thereof where different kinds of authorities to deal with various functions under the Act are envisaged. He said that the Municipal Commissioner was not under the sway of the Members of the Corporation as he is as per the scheme of the Act a nominee of the State Government and therefore is an independent person capable of carrying out the executive functions of the Corporation as per the guidelines and general policy laid down by the Corporation at its general meeting. Mr. Shah therefore urged that in the peculiar circumstances available in the places where the Bombay Provincial Municipal Corporations Act 1949 applies. normal protection provided by the legislature to avoid conflict of personal interest and public duties of councillor was no longer available. To some extent Mr. Shah is right. Mr. Shah therefore urged that in the peculiar circumstances available in the places where the Bombay Provincial Municipal Corporations Act 1949 applies. normal protection provided by the legislature to avoid conflict of personal interest and public duties of councillor was no longer available. To some extent Mr. Shah is right. But at the same time it is to be recalled that a councillor who is elected can as well be elected to the standing committee also and as per the scheme of the Act the standing committee is thickly associated with the day to day administrative functions of the Corporation though its policy decisions are to be implemented by the Municipal Commissioner as the executive head of the Corporation. It therefore cannot be said as a matter of general proposition that a councillor elected to a municipal Corporation would never be in a position to have his sway in the municipal matters and particularly in matters connected with the contracts entered into and particularly the contracts of employment with the Corporation. The legislature no doubt looking to the applicability of the Act to big cities has made provision for exceptions in sub-sec. (2) of sec. 10 of the Act. We find in Gujarat Municipalities Act and its precursor legislations like the District Municipalities Act and Bombay Municipal Boroughs Act no such exception were provided for. However when the general policy of the legislature is evidenced in sub-sec. (1) exceptions laid down in sub-sec. (2) are to be examined in the light of the language employed therein and the scope of the patent meaning of that context cannot be unduly enlarged or expanded on hypothetical reasons like the general right of every voter to be elected as a councillor. The first principle of interpretation is that the text as it is should be given its natural meaning. When the legislature in sub-clause (ii) of clause (b) of sub-sec. (2) of sec. 10 has provided by way of exception an agreement for any security for the payment of money only the term only has to be given its natural normal meaning. When the legislature in sub-clause (ii) of clause (b) of sub-sec. (2) of sec. 10 has provided by way of exception an agreement for any security for the payment of money only the term only has to be given its natural normal meaning. As said above there are three possible agreements including the agreement for security and the agreement of security for the payment of money only For the reasons best known to the legislature no other form of agreement for security was sought to be excepted and we have to take the text as it is. We have therefore no manner of doubt that the present agreement is one that cannot be said to be an agreement of security for the payment of money alone. Mr. Shah no doubt in this connection vehemently urged that the agreement in question should be interpreted to mean in the final analysis the agreement to indemnify. The agreement is certainly an agreement of indemnification and the agreement of indemnity necessarily involves payment of money in the final analysis. However from thisit cannot necessarily be inferred that the agreement is only for the payment of money and not for any other purpose. As interpreted by us above the agreement in question is essentially for furnishing security by the concerned respondent to the Corporation to the effect that the concerned employee would discharge his duties faithfully and efficiently and payment of money that has been provided for is a consequential provision. It is not the paramount and only idea behind the agreement. ( 6 ) IN our opinion the interpretation that we have placed on the agreement and clause (ii) of clause (b) of sub-sec. (2) of sec. 10 of the Act is crystal clear. We would like to advert to the authority of the Supreme Court which has been relied upon by both the learned Single Judge and the Election Tribunal. In the case of Gulam Yasin Khan (supra) provision of C. P. and Berar Municipalities Act (2 of 1922) had come to be examined. 10 of the Act is crystal clear. We would like to advert to the authority of the Supreme Court which has been relied upon by both the learned Single Judge and the Election Tribunal. In the case of Gulam Yasin Khan (supra) provision of C. P. and Berar Municipalities Act (2 of 1922) had come to be examined. Disqualification was sought to be attracted on the ground of interest or share in any contract The man who was alleged to be disqualified was the father of an employee in the employment of the Municipality and he was sought to be disqualified on the ground that he had indirect interest in the contract of employment by his son with the Municipality. The Supreme Court there held that where what was proved was the mere relationship between the candidate and his son who was an employee of the municipal committee it would be unreasonable to infer from such relationship alone that the person has direct or indirect interest in the employment in the municipality and was therefore disqualified to be a candidate for election under sec. 15 clause (1) of the Act. The case on hand presents altogether a different set of facts. There is no question of any indirect interest. As a party to the contract of guarantee and indemnity the concerned respondent was directly associated with the contract with the Corporation he had direct interest in the contract of security and the security as we have interpreted above was not only for payment of money but was for the security for the due performance of his duties by the concerned employee and payment of the sum of Rs. 300 or Rs. 100/- as the case may be or payment of unlimited compensation as may be estimated by the Municipal Commissioner in contingencies was ancillary or incidental. The judgment of the Supreme Court therefore in our opinion does not lend any light in the case as it deals with a different situation altogether. ( 7 ) IN above view of the matter all the Letters Patent Appeals are allowed and the order passed by the learned Single in the Special Civil Application Nos. 2166 of 1976 9 of 1977 and 134 of 1977 confirming the findings of the Baroda Election Tribunal in Election Petitions Nos. ( 7 ) IN above view of the matter all the Letters Patent Appeals are allowed and the order passed by the learned Single in the Special Civil Application Nos. 2166 of 1976 9 of 1977 and 134 of 1977 confirming the findings of the Baroda Election Tribunal in Election Petitions Nos. 480 and 481 of 1975 are set aside and the view of the Returning Officer is upheld. In the circumstances of the case we order that there shall be no order as to costs in all the three appeals. ( 8 ) MR. Shah the learned Advocate appearing for the concerned respondents at this stage made an oral request for leave to appeal to the Supreme Court of India under Article 133 of the Constitution of India. We do not find that these appeals involve substantial question of law of general importance that in our opinion would require to be decided by the Supreme Court. Leave therefore is refused. .