JUDGMENT - B.N. DESHMUKH, J.:---The petitioner is a citizen of Bhor which is the Taluka place in Poona District. In the 1974 elections held for electing Councillors and the President of the Bhor Municipal Council, the petitioner was a candidate alongwith respondents Nos. 2 to 5. All the nomination papers appear to have been accepted and the candidates went for election. The last date for nomination was 21st October, 1974 and 22nd October, 1974 was the date of scrutiny. Voting took place on 17th November, 1974 and the votes were counted on 18th November, 1974. The petitioner polled a highest number of votes being 2167 and was declared elected on the same day, viz. 18th November, 1974 as the President of the Bhor Municipal Council. 2. The present respondent No. 1 challenged the election of the petitioner by filing an Election Petition in the District Court, Pune. The respondent No. 1 was a voter from ward No. 10. His main ground was that on the date of nomination as also on the date of the election, the petitioner was disqualified from being elected as a member to the Municipal Council. The election of respondent No. 1 on facts is not being disputed. It is alleged that the petitioner who was a merchant and a grocer committed an offence under section 16 of the Prevention of Food Adulteration Act on 17th December, 1972. He purchased certain amount of Dalchini from a merchant in Pune and sold it in Bhor. The sample taken from his was found adulterated and he was convicted by the Court of Judicial Magistrate, First Class, Bhor on 26th December, 1973. The sentence imposed upon the petitioner was imprisonment till the rising of the Court and to pay a fine of Rs. 200/- or in default of payment of fine to suffer rigorous imprisonment for one month. 3. On the basis of the admitted allegations, the respondent No. 1 pleaded that under section 16(1)(a) of the Maharashtra Municipalities Act, 1965, the petitioner was not eligible, at all, for being either nominated or elected as a President of the Municipal Council. The qualification for being elected as a President by the direct votes of the entire town is the same as is applicable to the Councillor. That qualification has been laid down by section 16 of the Act. The qualification for being elected as a President by the direct votes of the entire town is the same as is applicable to the Councillor. That qualification has been laid down by section 16 of the Act. Under that section, a person can be chosen as a candidate or elected as a Councillor, if he fulfils two conditions. The first condition is that his name must appear in the roll of voters and the second is that he shall not be disqualified for any of the reasons mentioned in section 16 of the Act. If these two conditions are satisfied, a person has a right to be nominated as a candidate and subsequently elected as a Councillor. Under Clause (a) of sub-section (1) of section 16 of the Act, no person shall be qualified to become a Councillor whether by election, co-option or nomination, who has been convicted by a Court in India of any offence the maximum punishment for which (with or without any other punishment) is imprisonment for a term of two years or more and sentenced to imprisonment for any term unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release. The respondent No. 1, therefore, pleaded before the District Judge that the petitioner was convicted on 26th December, 1973 in respect of an offence which was punishable with imprisonment for two years or more and was disqualified for being nominated and elected as a member of the Council until 5 years had elaspsed from his date of release which was also the date of judgment viz. 26th December, 1975. Since the disqualification continued upto 25th December, 1978, the petitioners nomination ought not to have been accepted at all. This plea succeeded before the learned Joint Judge, inspite of the fact that under the powers vested in the Government under Clause (a) of sub-section (1) of section 16 of the Act, a notification was issued on 20th November, 1975. It was pointed out to the learned Joint Judge who heard the petition that the State Government had the power to lay down a different period of disqualification under that provision in any particular case. It was pointed out to the learned Joint Judge who heard the petition that the State Government had the power to lay down a different period of disqualification under that provision in any particular case. By exercising those powers, the Government issued a notification on 20th November, 1975 by declaring that the disqualification incurred by the present petitioner Amritlal Chunilal Rawal, resident of Bhor, Tahsil Bhor, District Pune, should remain in force for a period of six months only from his release on 20th December, 1973. Being aggrieved by that Order setting aside the election of the petitioner, he has filed this writ petition. 4. Mr. Kotwal, the learned Counsel for the petitioner, raised four points for our consideration. According to him, there is a distinct difference between the language of section 16 of the Maharashtra Municipalities Act and the provisions of the U.P. Municipalities Act as well as the Representation of the People Act which have been construed by the Supreme Court. The observations in those judgments may be relevant to construe the present provisions of the Maharashtra Municipalities Act. The second point which he raises is that the Governments Order dated 20th November, 1975 is made specifically retrospective and must be given its proper effect. In other words, since the disqualification is now restricted to a period of six months from 26th December, 1973 to 26th of June, 1974, the petitioner must be deemed to be eligible to contest any election under the Maharashtra Municipalities Act. The third point which he raises is that the learned Joint Judge as Election Tribunal had to take into account the factual as well as the legal position as on the day when he pronounced the judgment, viz. 29th April, 1976. On that day, the disqualification, so-called, was already removed or washed out by the Governments Order dated 20th November, 1975 and the Joint Judge failed to take into account properly this subsequent event. The last point that he raises is that the sentence of imprisonment till the rising of the Court is, in fact, in law no sentence of imprisonment at all and there was no disqualification in respect of that judgment of conviction and sentence. 5. Taking the last point first, we cannot see any substance in it. The sentences contemplated by the Indian Penal Code are of two types, viz. a sentence of jail or a sentence of fine. 5. Taking the last point first, we cannot see any substance in it. The sentences contemplated by the Indian Penal Code are of two types, viz. a sentence of jail or a sentence of fine. In the case of certain offences either or both sentences are awardable. In the present case, admittedly the sentence was to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 200/- or in default of payment of fine to suffer rigorous imprisonment for one month. It may be that the petitioner has paid the fine and therefore, the question of undergoing the sentence in default of payment of fine never arose. However, he was required to undergo sentence of imprisonment till the rising of the Court. It is not the question of length of period. It is also not necessary that the accused must be sent to a jail and put behind the bars if he is directed to suffer imprisonment. When he is taken in custody, the imprisonment starts. Since the period here is very short, viz. till the rising of the Court, this, in the eyes of law, is an imprisonment and nothing else. The petitioner has, thus, been convicted to suffer imprisonment in respect of the crime which is punishable with more than two years imprisonment. Undoubtedly, therefore, the petitioner was under the disability as contemplated by section 16(1)(a) of the Maharashtra Municipalities Act, 1965. 6. Mr. Kotwal says that it may be that the petitioner was convicted on 26th December, 1973 and the 5 years period regarding his disability was not over either on the date of the nomination or on the date of election. However, his nomination paper was accepted rightly or wrongly and he won the election in due course. At a time when the election was being questioned before the District Court, Pune, that disability ceased with retrospective effect by reason of the Governments Order issued under the last sentence of Clause (a) of sub-section (1) of section 16 of the Act. However, his nomination paper was accepted rightly or wrongly and he won the election in due course. At a time when the election was being questioned before the District Court, Pune, that disability ceased with retrospective effect by reason of the Governments Order issued under the last sentence of Clause (a) of sub-section (1) of section 16 of the Act. By the Government Order dated 20th November, 1975, the following notification was issued : "In exercise of the powers conferred by Clause (a) of sub-section (1) of section 16 of the Maharashtra Municipalities Act, 1965, the Government is pleased to order that the disqualification incurred by Shri Amritlal Chunilal Rawal, resident of Bhor, Tahsil Bhor, District Poona should remain in force for a period of six months only from his release, on 26th December, 1973." According to Mr. Kotwal, the effect of this notification is to curtail the period of disability to six months only from 26th December, 1973. The disability, therefore, must be deemed to be over on or after 25th June, 1974. Taking advantage of this factual development, Mr. Kotwal raised two arguments for our consideration. 7. The first argument is that there is a distinct difference between the language of section 16(1)(a) of the Maharashtra Municipalities Act as compared with the language of the U.P. Municipalities Act and the Representation of the People Act dealing with similar disabilities. In section 13-D(g) of the U.P. Municipalities Act, the words used are "shall be disqualified for being chosen". In the Representation of the People Act also the language used in section 100(1)(a) is that the returned candidate was not qualified on the date of his election or was disqualified to be chosen to fill the seat under the Constitution or this Act. This language, according to us, is quite different than the language used in section 16(1)(a) of the Maharashtra Municipalities Act. Undoubtedly, the words used are different but we do not see how they make any difference and even if they make any difference, we wonder what effect they can have upon the present litigation. Forgetting the Government notification referred to above for the time being, there is no doubt that either on the date of nomination or the date of scrutiny or the date of election or the date of declaration of the final result, the petitioner continued to be all along under a disability. Forgetting the Government notification referred to above for the time being, there is no doubt that either on the date of nomination or the date of scrutiny or the date of election or the date of declaration of the final result, the petitioner continued to be all along under a disability. In other words, he was disqualified throughout the relevant period which covered the entire election process beginning with the preparation of the roll and ending with the final declaration of the results. The conviction together with its disability period was not a disqualification for being enrolled as a voter. The petitioners name rightly appeared in the list of voters. He did fulfil one requirement for contesting the election, viz. his name appeared in the voters list. That, however, is not enough under section 15 of the Maharashtra Municipalities Act. He must not be disqualified on the relevant dates. 8. So far as the second requirement is concerned, the position of facts was wholly against the petitioner under the original provisions of section 16(1)(a) of the Maharashtra Municipalities Act. Whether the language of the various statutes is, therefore, different identical or conveys the same meaning inspite of the difference in language are the questions that do not arise in this petition. Looking to the language of section 16(1)(a) read with section 15 of the Act, we are satisfied that the most relevant date is the date of nomination. Only those persons who are qualified to be elected can alone file nomination papers. The scrutiny of the nomination papers may take place either on the same day after the closing time is over, or any other date fixed in the election programme. The scrutiny, whenever it take place, must relate to the point of time when the nomination paper was filed. The question to be asked by the Officer concerned is, that nomination valid, in the sence, when it was filed ? The qualification of the candidate on the date of the nomination, therefore, must be seen. The Returning Officer cannot imagine that something may happen in the future and it may be safe policy to follow not to reject any nomination paper but to admit all nomination papers. Besides being wrong, this will do injustice to the other candidates. They will be forced to contest the elections alongwith persons who are not qualified to stand as candidates in that election. Besides being wrong, this will do injustice to the other candidates. They will be forced to contest the elections alongwith persons who are not qualified to stand as candidates in that election. It will be unfair to bring about the competition between the qualified and the unqualified candidates in the same election. 9. Thus, so far as the present case is concerned, we are satisfied that the petitioner was not qualified to be nominated at all and the Returning Officer committed an error in fact and law in accepting the nomination paper of the petitioner. It may be that the blame of the Officer would be merely technical, in the sense, no body raised an objection and the Officer could not imagine any such objection. However, when the facts are brought in light in an election petition, it becomes amply clear that as the legal position stood then, the petitioner was not entitled to contest the election, at all. Ordinarily, therefore, if these facts were brought to the notice of the Returning Officer, he would have rejected the nomination paper on the 22nd October, 1974 itself. 10. Mr. Kotwal, however, argues that whatever be the position on facts at that time when the Election Petition was heard by the learned Joint Judge, he was appraised of the Government Notification quoted above. He should have given proper effect to this notification. Though the notification is issued on 20th November, 1975, its operation is retrospective. The disability of the petitioner which was extended over a period of 5 years from 26th December, 1973 as per the provisions of section 16(1)(a) of the Act was reduced to a period of six months only from 26th December, 1973. The petitioner, therefore, cease to be under disability from 25th June, 1974. That being so, he was fully qualified to be a candidate for the election in October of 1974. In order to fortify himself in this approach, he relied on the judgment of the Supreme Court in the case of (Manni Lal v. Parmai Lal and others)1, A.I.R. 1971 S.C. 330. We are unable to understand how that case or its principle can ever be applied to the facts and circumstances of the present case. In that case, respondent No. 1 filed the nomination papers on the final day viz. on 9th January, 1969. We are unable to understand how that case or its principle can ever be applied to the facts and circumstances of the present case. In that case, respondent No. 1 filed the nomination papers on the final day viz. on 9th January, 1969. On that day, he was fully qualified to be nominated as a candidate under the Representation of the People Act. Two days later, on the 11th January, 1969 he was convicted under section 304 of the Indian Penal Code and sentenced to suffer 10 years rigorous imprisonment. As is well known, once the election process starts under the Representation of the People Act, it cannot wait, The respondent No. 1, therefore, continued as a candidate and at the poll he was elected with a large majority. An election dispute was raised by filing an Election Petition. By the time, the Election Petition came to be heard by the High Court, an appeal filed by respondent No. 1 in the High Court against his conviction and sentence was allowed and he was acquitted and fully exonerated from the criminal charge. The High Court, therefore, dismissed the Election Petition on the ground that he was fully qualified person since the only disability alleged against him was the subsequent conviction. When this judgment of the High Court was challenged in appeal before the Supreme Court. Their Lordships observed in the context of these facts that the High Court was right in taking into account the situation as on the date of the judgment delivered by them. From this judgment of the Supreme Court. Mr. Kotwal wants to generalise and say that wherever any Election Tribunal is hearing the Election Petition, it must consider the situation of the facts as on the day the judgment will be delivered and no earlier date is relevant. We are afraid that such a generalisation is not possible at all and the proposition which he seeks to develop cannot be accepted as a proposition of law. The reasons are obvious. As we have already observed earlier, the last crucial date is the date of nomination. If on the date of nomination, the candidate is qualified, the Returning Officer is right in accepting the nomination papers. In that case, a criminal conviction came about on a subsequent date. A criminal conviction may undoubtedly be a disqualification. The reasons are obvious. As we have already observed earlier, the last crucial date is the date of nomination. If on the date of nomination, the candidate is qualified, the Returning Officer is right in accepting the nomination papers. In that case, a criminal conviction came about on a subsequent date. A criminal conviction may undoubtedly be a disqualification. However, it is a disqualification which is capable of being wiped out altogether. When the trial Courts order of conviction is set aside by the Appellate Court exonerating the petitioner fully from the crime, the effect is that the particular accused has not committed the crime and he was not guilty of any criminal Act and there was never a disqualification against him. 11. If this is the correct approach in respect of a disqualification which is removable altogether, a generalisation of the sort which Mr. Kotwal wants to make before us is not permissible. Let us take another instance and there is ample case law on it. If a person has not paid municipal dues and is in arrears, he is disqualified for standing as a candidate of the Municipal Election. If this disqualification exists on the date of the nomination and his nomination paper is rejected, can he pay the amount next day and appeal to the superior authorities and compel his nomination to be accepted? The payment on a subsequent day might bring about a situation where there are no arrears but that cannot be wiped off retrospectively. If after the date of that payment he wants to contest another election, then undoubtedly it may be said that he is not under disability. 12. Let us consider the situation in the present case. If the fact of conviction and the period of 5 years had no elapsed, what could the Returning Officer have done ? He would have just rejected the nomination of the petitioner. The election would have taken place without the petitioner being in the field as a candidate. If some one else were elected, could the present petitioner file an Election Petition to set aside the election on the ground that his nomination should have been accepted ? The answer, obviously, seems to be in the negative. The election would have taken place without the petitioner being in the field as a candidate. If some one else were elected, could the present petitioner file an Election Petition to set aside the election on the ground that his nomination should have been accepted ? The answer, obviously, seems to be in the negative. The Court would have been called upon at that point of time to consider whether the nomination was rightly rejected and the issue would always be decided against such a petitioner. Can it make any difference in law or in principles because the nomination paper of the present petitioner was wrongly accepted and by the time the Joint Judge hears the Election Petition, the Government has come forward with a notification quoted above. We think that the learned Joint Judge was more than right in taking the view he did. 13. According to us, the operation of the notification will be purely prospective in the sense that the petitioner will be entitled to contest any election after 20th November, 1975, if the disqualification now confined to a period of six months does not come in the way. However, a period which has already run out and during which period the petitioner was disqualified cannot be regained by such a notification. If the relevant point of time is the date of nomination, and the petitioner was under a disability, his nomination paper should have been rejected. The fact that the objection was not raised by anyone and the Officer merely accepted the nomination paper, does not change the legal position at all. Throughout the election process, the petitioner was under a disability and he had no right to be elected at all. If the petitioner now wants to contest the election, he can certainly rely upon the notification and point out that today he is not under disability. Ordinarily, under the provisions of section 16(1) of the Act, the disqualification continued till 25th December, 1978. Even then the petitioner can to day point out that his disability has ceased in view of the Government Notification dated 20th November, 1975. He cannot, however, argue that the disability which was valid and which prevented him from contesting the election, would cease to be operative simply because the Government has issued the notification dated 20th November, 1975, restricting the period to six months from the date of the conviction. He cannot, however, argue that the disability which was valid and which prevented him from contesting the election, would cease to be operative simply because the Government has issued the notification dated 20th November, 1975, restricting the period to six months from the date of the conviction. The reference to the date of the conviction has also no particular relevance because under the provisions of section 16(1) of the Maharashtra Municipalities Act, 1965, the period of disability is to run from the date of release. Since the petitioner had a short sentence till the rising of the Court, the period of sentence ended on 26th December, 1973, itself and he will be deemed to be released on that day. 14. The notification, according to us, must be read in this manner. Till the notification was issued viz., 20th November, 1975, the provisions of section 16(1)(a) of the Act operated and any nomination paper of the petitioner during that period was liable to be rejected. However, if the petitioner wants to becomes a candidate after 20th November, 1975, and the disability is to be considered, the period must be judged in the light of the notification. In that manner only it would be retrospective but the substantive operation will be always prospective, viz. to Judge the qualification of the petitioner after 20th November, 1975. This being our view, we think that the order passed by the learned Joint Judge granting the Election Petition seems to be correct and must be uphold. 15. Mr. Kotwal relied upon two judgments of the Supreme Court; first in the case of (Smt. Kanta Kathuria v. Manak Chand Surana)2, A.I.R. 1970 S.C. 694, and the other in the case of (Smt. Indira Nehru Gandhi v. Shri Raj Narain)3, A.I.R. 1975 S.C. 2299. It is true that in these cases, retrospective effect was given to the amendments made in the election laws. The provisions of section 16(1)(a) merely give the state the power to curtail the period of disqualification but it does not vest the State with the authority to retrospectively curtail the period. There can be no comparison between these two judgments which interpreted the statutory and the constitutional provisions and a case where a mere executive Act of the Government is to be considered. The Government has no right under that section to retrospectively change the disqualification which is laid down by the statute. There can be no comparison between these two judgments which interpreted the statutory and the constitutional provisions and a case where a mere executive Act of the Government is to be considered. The Government has no right under that section to retrospectively change the disqualification which is laid down by the statute. Whatever language the Government uses, the operation of that order will always be prospective. If the period of disqualification is reduced it may create the impression that it will retrospectively reduce the period. The operation will be as indicated by us above. In other words, the period of six months disqualification of the petitioner may end on 25th June, 1974, but this kind of disqualification for a limited period will be taken into account only after 20th November, 1975, and not earlier. Since the entire election process is gone through much earlier than 20th November, 1975, the petitioner cannot take advantage of the present notification. 16. We thus, confirm the order of the learned Joint Judge, dismiss this petition and discharge the Rule. The petitioner will pay the costs of respondent No. 5 alone. We may note that this Election Petition was filed by respondent No. 1 in the District Court and he won the same there. However, pending this petition, the respondent No. 1 initially engaged Advocate Mr. Abhyankar but subsequently of Mr. Abhyankar and also stating that he does not want to contest this petition. However, respondent No. 5, another candidate, who was a party to the original petition, contested this application. We have heard the petition on merits and we have dismissed it for reasons stated above. Rule discharged. Mr. Kotwal applies for leave to appeal to Supreme Court which is refused and we also refuse any interim relief to the petitioner. -----