JUDGMENT - KHATRI S.N., J.: - The present respondent No. 6 challenged the election of the Petitioner as President of the Hingoli Municipal Council by moving the State Government under section 51(5) of the Maharashtra Municipalities Act, 1965, (for short, the Act). By an order dated, 10th October, 1985, the Minister of State for Urban Development, Maharashtra, (respondent No. herein) set aside the election on the ground that the result of election stood materially affected, inasmuch as respondent No. 6 was not permitted by the Returning Officer (respondent No. 4 herein) to participate in the election. This order is the subject-matter of challenge in this writ petition. 2. The material facts lie within a narrow compass and are not in dispute. General election for municipal councillors, Hingoli, was held on 25th April, 1985. There are in all 33 wards, out of which elections were held on that day for all wards except wards Nos. 31 and 33. The elections for these two wards were postponed because some matter was pending in the District Court. The elections for these two wards were subsequently held on 10th May, 1985. Thirtyone candidates including the Petitioner were declared elected as councillors in the election held on 25th April. The names of these thirty-one persons were published in the Maharashtra Gazette on 3rd May, 1985, as required by section 19 of the Act. The result of the election for wards Nos. 31 and 33 were declared on 11th May, 1985. Respondent No. 6 was elected from Ward No. 33. The result of this mini-election was published in the Maharashtra Gazette on 27th May, 1985. 3. Section 19(1) of the Act provides that if the general election is completed in one lot, the Collector shall publish the result in the Official Gazette as soon as convenient. The second paragraph of this sub-section further provides that if the poll could not be taken in any ward or wards on the date originally fixed for the general election, but if the poll was taken on the prescribed date in more than two-third of the wards, the Collector shall publish the available results in the Official Gazette, as soon as possible after the counting of votes in the said wards is over and as regards the remaining ward or wards he shall subsequently publish the results as and when the poll is taken and counting of votes is over. Section 51 deals with the election of the President. Sub-section (2) prescribes that the Collector shall convene a special meeting of the councillors for election of a President within 25 days from the date on which the names of councillors are first published under section 19(1). As already stated above, the results of thirty-one wards were first published in the present case on 3rd May. The Director of Municipal Administration had issued instructions to all the Collectors to fix up these special meetings on 15th of May, 1985. Accordingly, the Collector of Parbhani (respondent No. 2 herein) issued a notice under section 51 on 8th May, convening a special meeting of the councillors on 15th. It is not in dispute that notice for this meeting was not issued either to respondent No. 6 or to the other member who was elected as councillor from ward No. 31 in the election held on 10th. 4. After being declared elected as councillor on 11th May, respondent No. 6 preferred Writ Petition No. 343 of 1985 to this Court on 13th May for stay of operation of the meeting dated 15th May, 1985. That writ petition came before Deshpande, J., during the summer vacation for grant of interim relief on the morning of 15th. The learned Judge made the following order on that day: “The Petitioner is permitted to participate in the election to be held on 15-5-1985.” 5. This order was conveyed to respondent No. 4 who had been designated by respondent No. 2 collector to preside over this special meeting dated 15th May, 1985, on telephone by the additional Registrar of this Court, before the proceedings of election were actually started at 11 a.m. It appears that the Presiding Officer did not allow respondent No. 6 to take part in the election process. At the election, the present petitioner was elected as President by 19th votes as again 12 secured by his adversary. 6. Respondent No. 1 while deciding the challenge to the election of the Petitioner under section 51(5), held that “the result of the election was materially affected, inasmuch as the candidate (respondent No. 6 herein) who was permitted by the order of the High Court to participate in the election was not allowed to participate”. 6. Respondent No. 1 while deciding the challenge to the election of the Petitioner under section 51(5), held that “the result of the election was materially affected, inasmuch as the candidate (respondent No. 6 herein) who was permitted by the order of the High Court to participate in the election was not allowed to participate”. Accordingly, he set aside the petitioner's election and directed him to hand over charge of his office to the Collector or his nominee under section 57(2) of the Act. It is this order which is now under challenge before us. Here it may be stated that the writ petition of respondent No. 6 came to be rejected on 15th July, 1985, as infructuous. 7. The fate of this case turns mainly on the question of non-compliance of the order of Deshpande, J., by respondent No. 4. Shri Solshe for the Petitioner submits that under this order what respondent No. 6 was entitled to at the most was to vote at the election, but not himself contest the election as such. While developing this argument, he submitted that Rule 3(1) of the Maharashtra Municipalities (President Election) Rules, 1981, prescribes that a councillor can file his nomination paper for the post of President latest by the noon on the date preceding the date fixed for election. If respondent No. 6 intended to contest the election, the learned Counsel points out, it was incumbent upon him to file his nomination paper by the noon of 14th May. This admittedly he has not done. Thus, according to the learned Counsel, respondent No. 6 could not have contested the election as a candidate in the meeting of 15th May even under the cover of interim relief granted by Deshpande, J. At the most he could have voted at that election. Assuming that this respondent had voted against the Petitioner, the latter's adversary would have got 13 votes instead of 12 which he actually polled. Thus, the final tally of the result would have been 19 votes for the Petitioner and 13 for his adversary. Shri Solshe concludes his submission by saying that the result could not in the premises be said to have been materially affected, as held by respondent No. 1. 8. Thus, the final tally of the result would have been 19 votes for the Petitioner and 13 for his adversary. Shri Solshe concludes his submission by saying that the result could not in the premises be said to have been materially affected, as held by respondent No. 1. 8. As against this, Shri Chapalgaonkar for respondent No. 6, submits that the order of Deshpande, J., enabled respondent No. 6 not only to vote at the election but also to contest as a candidate. He pointed out that the definition of the term 'Councillor' as given in section 2(7) of the Act does not require, expressly or by implication, that an elected candidate becomes a councillor only after his name is actually published in the Gazette. According to him, although the name of respondent No. 6 was not published in the Gazette till 27th May, his election as councillor from Ward No. 33 had already been declared by the Returning Officer on 11th May, 1985, itself. This declaration was made under Rule 59 of the Maharashtra Municipalities Election Rules. Thus, it was the duty of the Returning Officer to allow him not only to vote but also to contest the election of President in the meeting dated 15th May, 1985. As respondent No. 4 did not permit him to do so and also committed breach of the order of Deshpande, J., Shri Chapalgaonkar adds, the order of respondent No. 1 cannot be interfered with by this Court. 9. Shri Chapalgaonkar has vehemently canvassed before us the proposition that a councillor whose name has not yet been formally published in the Gazette is also entitled to contest the election of the President, provided his election as a Councillor is duly declared by the Returning Officer concerned under Rule 59 ibid. There may be merit in this contention. However, in our view, it is not necessary for us to decide this question in the present case. Because respondent No. 6 had voluntarily disabled himself from contesting the President's election by omitting to file his nomination by the noon of 14th, he had no right to contest the election on the next day. The reasons are obvious. However, in our view, it is not necessary for us to decide this question in the present case. Because respondent No. 6 had voluntarily disabled himself from contesting the President's election by omitting to file his nomination by the noon of 14th, he had no right to contest the election on the next day. The reasons are obvious. Even on the assumption that there was no legal hurdle in the way of respondent No. 6 to contest the election of President because he had been declared elected as a councillor on 11th (4 days before the date for which President's election was fixed), the fact cannot be ignored that he had not filed his nomination papers by the noon of 14th May, as required by Rule 3(1) of the Maharashtra Municipalities (President Election) Rules, 1981. Whatever be the view of the Presiding Officer on the question of respondent No. 6's eligibility to contest the President's election, it was certainly open to the latter to file his nomination paper within the prescribed time. At the worst, the Presiding Office would have rejected it. But his holding an erroneous view on law would not absolve respondent No. 6 of his obligation under Rule 3(1) ibid to get himself duly nominated by the noon of 14th. It follows that de hors Deshpande, J.'s order respondent No. 6 had no right to contest the President's election fixed for 15th. 10. The next question is whether the amplitude of Deshpande, J.'s order is wide enough to clothe respondent No. 6 with that liberty. Reverting back to the text of the order, it will be seen that the language used, “permitted to participate in the election”, is not free from ambiguity. If the learned Judge had really intended to allow respondent No. 6 to contest the election also , we have no doubt, he would have stated so in express terms. We may note that in the situation obtaining, respondent No. 6 had not even filed his nomination papers within time, although there was virtually no external constraint operating on his option to do so. The learned Judge, we presume, must have been conscious of this correct legal and factual position at the time of passing the interim order. We may note that in the situation obtaining, respondent No. 6 had not even filed his nomination papers within time, although there was virtually no external constraint operating on his option to do so. The learned Judge, we presume, must have been conscious of this correct legal and factual position at the time of passing the interim order. In spite of the ineligibility of respondent No. 6 to contest the Presidential election, if the learned Judge had really thought it fit to permit him to contest for the election, the aforesaid constraint on respondent No. 6 would have normally impelled the learned Judge to make his order explicitly clear on the point. We find it difficult to persuade ourselves to agree with Shri Chapalgaonkar that the order of Deshpande, J., entitled respondent No. 6 even to contest for the election. Given its natural meaning the order would enable him only to vote at the election. As we have already shown, even if respondent No. 6 had been permitted by respondent No. 4 to vote at the election, his adverse vote would not have materially affected the result of the election. 11. Shri Chapalgaonkar next argued that respondent No. 4 should have adjourned the meeting of 15th to enable respondent No. 6 to file his nomination. We quite appreciate that respondent No. 4 had under law power to adjourn the meeting . However, we do not see any reason to hold that he was bound to do so, or that he has used his discretion capriciously in omitting to make the adjournment. The Director, Municipal Administration, we repeat, had issued instruction to all Collectors in the State to ensure that Presidents of all Municipal councils were duly elected and in saddle on 15th May, 1985. The exercise of the discretion by respondent No. 4 to decline adjournment on 15th cannot be said to be capricious or arbitrary or vitiated by mala fides in any way. We leave the point here. 12. Here it may be noted that respondent No. 4 was not sure about the authentic identity of the person who had conveyed to him on telephone the order of Deshpande, J. Often such calls prove to be a mere hoax. We are not ready to hold - as did respondent No. 1 - that respondent No. 4 went wrong in not acting upon the telephonic instructions. We are not ready to hold - as did respondent No. 1 - that respondent No. 4 went wrong in not acting upon the telephonic instructions. The view taken by respondent No. 1 cannot be sustained for a moment that simply because the order of the High Court was not complied with by the Presiding Officer, it automatically operated to materially affect the result of the election. No other factor has found favour with the Minister for setting aside the election. Here we wish to point out that it is not the case of respondent No. 6 before us - nor was it so before the Minister - that the omission on the part of the Collector to give notice to respondent No. 6 by itself vitiated the entire further process. We would not, therefore, enter into this particular aspect. The result is that the order of respondent No. 1 will have to be set aside. 13. Shri Chapalgaonkar last submitted that as the impugned order does not suffer from any want of jurisdiction or is not palpably erroneous, the Court will not be justified in interfering with it. We do not agree. The solitary reason given by respondent No. 1 for setting aside the election cannot stand scrutiny in the eye of law. It will be the duty of this Court to set aside such an order which is obviously against the provisions of law. 14. In the result, this petition is allowed. The order of respondent No. 1 setting aside the election of the petitioner as President of the Municipal Council, Hingoli, is hereby quashed and set aside. The direction of respondent No. 1 to the Petitioner to hand over charge under section 57(2) of the Act is also set aside. Rule is made absolute. No order as to costs. 15. At this stage, leave is sought on behalf of respondent No. 6 to appeal, Refused. Petition allowed. -----