JUDGMENT - DHABE H.W., J.:—An interesting question about interpretation of the phrase “candidate at the election” used in section 21 of the Maharashtra Municipalities Act, 1965 (for short, “the Act”), arises, inter alia, for consideration in the instant writ petition. The facts are that after the elections to the Municipal Council, Achalpur (hereinafter referred to as “the Municipal Council”), there were four members to be co-opted in the Municipal Council. The Collector, by the notice dated 8-5-1985 convened the meeting of the elected members of the said Council on 15-5-1985 for co-option of four members to the said Council. It may be seen that there are Rules framed under the Act known as the Maharashtra Municipal Councils (Co-option of Councillors) Rules, 1967 (for short “the Co-option Rules”) regulating the manner of co-option of the Councillors to the Municipal Council. As per the said Rules, a programme for filing nominations, scrutiny of nominations and withdrawal of nominations was given by the Collector. The persons who filed their nomination papers for co-option to the said Municipal Council included, inter alia, the petitioners and the respondents 1 and 5 to 19. Out of these respondents, the respondents 5 to 11 withdrew their nomination papers. The respondent No. 1 also withdrew his nomination paper. From amongst the remaining candidates in the meeting of the Municipal Council held on 15-5-1985, the petitioners were declared as elected and were thus co-opted as Members of the Municipal Council. 2. The respondent No. 1 filed an election petition as provided under section 21 of the Act, claiming the relief that the co-option of the petitioners should be set aside and a fresh election for the co-option should be directed in accordance with the Rules. In resisting the election petition the petitioners raised several grounds, one of the grounds being that the instant election petition filed by the respondent No. 1 was not maintainable. After recording the evidence, the learned District Judge, Amravati, by his order dated 13-9-1988 held that the election petition filed by the respondent No. 1 was maintainable under section 21 of the Act. After recording the evidence, the learned District Judge, Amravati, by his order dated 13-9-1988 held that the election petition filed by the respondent No. 1 was maintainable under section 21 of the Act. He further held that since the petitioner No. 4 had not filled in the material information regarding his special knowledge or practical experience in the field of public health, Local Self -Government, education or welfare of labour which was a qualification for a co-opted councillor under section 9 of the Act, his nomination paper was liable to be rejected. According to him, there was thus a material irregularity committed by the returning officer in accepting the nomination paper of the petitioner No. 4. Since the voting at the election of the co-opted members was by proportionate votes by a single transferable vote, the learned District Judge held that the whole election, i.e. the election of all the petitioners was void and was liable to be set aside. He, therefore, set aside the election of the petitioners as co-opted Councillors and directed that a fresh election for co-option of four members in the Municipal Council should be held as per Rules. Feeling aggrieved, the petitioners, whose election as co-opted councillors is set aside, have preferred the instant writ petition in this Court. 3. The learned Counsel for the petitioners has raised three contentions before me. (a) That the election petition at the instance of the respondent No. 1 was not maintainable under section 21 of the Act. (b) That, in view of section 21(11-A) of the Act since there was no material irregularity because the councillors who elect the co-opted councillors had without any objection considered the claim of the petitioner No. 4, the election of the petitioners as co-opted councillors could not have been set aside even though certain particulars regarding special knowledge required for being elected as co-opted councillor were not filled in by the petitioner No. 4, in his nomination form, and (c) At any rate, the election of the petitioner No. 4 could alone have been set aside and not of all the petitioners. The learned Counsel for the respondent No. 1 has controverted the above contentions raised on behalf of the petitioners. 4. The learned Counsel for the respondent No. 1 has controverted the above contentions raised on behalf of the petitioners. 4. In appreciating the first contention raised on behalf of the petitioners about the maintainability of the election petition preferred by the respondent No. 1, the principal question for consideration is whether a candidate who has withdrawn his nomination paper on or before the due date/time for withdrawal is a candidate covered by the phrase “a candidate at the election” used in section 21 of the Act, and can, therefore, prefer an election petition. The learned Counsel for the petitioners has brought to my notice the scheme of section 21 of the Act which deals with the disputes in respect of the election, co-option or nomination of Councillors. He has also referred to me the scheme of the Co-option Rules framed under the Act. The expression “candidate” is not defined in the Act. Sub-sections (1), (2) and (3) of section 21, which are relevant for the purpose of this petition are reproduced below:— “21.(1) No election, co-option or nomination of a Councillor may be called in question, except by a petition presented to the District Court by a candidate at the election or by any person entitled to vote at the election, within ten days from the date of publication of the names of the Councillors in the Official Gazette, under section 19 or 20, as the case may be. (2) Any such petition— (a) shall contain a concise statement of the material facts on which the petitioner relies, (b) shall, with sufficient particulars, set forth the ground or grounds on which the election, co-option or nomination is called in question, and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. (3) A petitioner may claim all or anyone of the following declarations :— (a) that the election of all or any of the returned candidates is void; or (b) that the election of all or any of the returned candidates is void and that he himself or any other candidate has been duly elected; or (c) that the co-option or nomination of all or any of the co-opted or nominated Councillors is void.” 5. As per section 21(1) of the Act, any candidate at the election or any person to vote at the election is entitled to prefer an election petition in the District Court to challenge the election, co-option or nomination in question of a Councillor of a Municipal Council. The question whether the co-option of a co-opted Councillor is covered by the expression “election” used in the latter part of section 21(1) of the Act is a question which is no more res integra in view of the decision of this Court in the case of (Daruwala M. Umar A. Rehman v. Namdeo Kondiba Chavan)1, 1987(3) Bom.C.R. 365 . The question raised in that case is whether any voter in the Municipal Council can challenge the co-option of a Councillor to a Municipal Council. It is held in the said case that the co-option of a Councillor can be challenged by the elected Councillor only because he is alone entitled to vote at the election for co-option to the Municipal Council under the Act. In the context of the provisions of the Act it is held that the word “election” used in the latter part of section 21(1) of the Act will have to be given a constricted meaning to cover election of a co-opted member by elected Councillors. It is thus clear that a general voter in the elections of the Municipal Council cannot challenge the co-option to the Municipal Council. The question which has, therefore, to be considered is whether the respondent No. 1 can challenge the election of the co-opted Councillors upon the footing that he is a candidate at the election although he has withdrawn his nomination paper on or before the due date/time. 6. In interpreting the expression “candidate at the election” it is necessary to see that such an expression has been used in sections 81 and 82 of the Representation of the People Act, 1951. The meaning of such an expression used in the Representation of the People Act has been considered by this Court as also the other High Courts. When section 21 of the Act was enacted, the contemporaneous knowledge of the meaning of the said expression which is used in the Representation of the People Act was before the legislature. The meaning of such an expression used in the Representation of the People Act has been considered by this Court as also the other High Courts. When section 21 of the Act was enacted, the contemporaneous knowledge of the meaning of the said expression which is used in the Representation of the People Act was before the legislature. We can, therefore, usefully refer to the decisions under the Representation of the People Act, where the said phraseology is used and is interpreted, particularly by this Court. 7. To appreciate the decisions under the Representation of the People Act, it is necessary to peruse first the scheme of the relevant sections of the said Act. Section 81 of the said Act provides for an election petition for calling in question the validity of elections to the Legislative Assembly or the Parliament. As per the said provision the election petition can be filed by any candidate at such an election or any elector. Section 82 provides that an election petitioner should join as respondent to his petition, where he, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than himself, and where no such further declaration is claimed, all the other candidates. It is also necessary for him to join any other candidate against whom allegations of any corrupt practice are made in the petition. Section 90(3) empowers the Election Tribunal to dismiss an election petition which does not comply with the provisions of sections 81, 82 and 117 of the said Act. For disputes regarding elections certain special definitions are provided in section 79 of the Representation of the People Act and in Clause (b) thereof the expression “candidate” is defined to mean “a person who has been or claims to have been duly nominated as a candidate at any election.” Prior to the amendment made by Act No. 40 of 1975, the definition of the expression “candidate” included any such person as described above, who, from the time when the election process began held himself out as a prospective candidate. It is in the light of the above provisions of the Representation of the People Act that the expression “candidate at the election” came to be interpreted in the decisions to which we shall hereinafter refer. 8. Section 32 of the Representation of the People Act provides for nomination of a candidate for the election and the question considered in the decision referred to hereafter is about the difference in the meaning of the phraseology “candidate at the election” and “candidate for the election”. Referring now to the decision of the Division Bench of this Court in (Sitaram v. Yograjsingh)2, A.I.R. 1953 Bom. 293, this Court has in the context of the question whether a candidate who has withdrawn his nomination is a necessary party to the election petition or not, held in para 8 of its decision that there is a vital distinction between “candidate at the election” and “candidate for the election”. It is observed: “You are a candidate for the election long before the election takes place. You may cease to be a candidate for that election and you may not be a candidate at that election. The expression 'at the election' emphasises the point of time when the election takes place. It emphasises the fact that you are a contestant at the election and that the voters have a right to vote for that candidate. It also emphasises the fact the candidate has not withdrawn and has no right to withdraw and in law he must be considered to be a person who is contesting the election along with other candidates.” 9. The above view of this Court is followed by the Division Bench of the Allahabad High Court in the case of (Sheo Kumar v. V.G. Oak)3, A.I.R. 1953 All. 633. However, a different view is taken by the Patna High Court, in the case of (Mohammad Umair v. Ram Charan Singh)4, A.I.R. 1954 Pat. 225. The above difference of opinion is brought to the notice of the Supreme Court in the case of (Bhikaji Keshao v. Brijlal Nandlal)5, A.I.R. 1955 S.C. 610. However, the said difference is not resolved in the said judgment because the Supreme Court has relied upon its earlier judgment in the case of (Jagan Nath v. Jaswant Singh)6, A.I.R. 1954 S.C. 210 for the view which it has taken in the aforesaid case. 10. However, the said difference is not resolved in the said judgment because the Supreme Court has relied upon its earlier judgment in the case of (Jagan Nath v. Jaswant Singh)6, A.I.R. 1954 S.C. 210 for the view which it has taken in the aforesaid case. 10. Be that as it may, the fact remains that this Court had taken a view that the expression “candidate at the election” does not include a candidate who although was duly nominated has withdrawn his candidature. It is true that the said expression is interpreted in the context of the provisions of the Representation of the People Act, where the definition of the expression “candidate” is also given for the purpose of the election disputes under section 79(b) of the said Act. The question, however, is whether any different meaning can be given to the said expression in the context of the provisions of the enactment in question in the instant petition. 11. As regards the absence of the definition of the expression “candidate” in the Act, it will have to be seen that in that case the said expression will have to be interpreted in its ordinary meaning. Perusal of the definition of the expression “candidate” given in section 79(b) barring its inclusive clause which existed prior to its amendment in 1975 shows the normal meaning of the expression “candidate” i.e. a candidate who has been or who claims to be duly nominated as a candidate at any election. For arriving at the true meaning of the expression “candidate” used in section 21 of the Act, it must be borne in mind that the object of the election petition is to maintain purity of election and that a remedy by way of election is a creation of statute in the sense that it has to be provided by a statute as it is not remedy under the common law. The said remedy has thus to be construed in a manner as provided under the statute. A right to file an election petition is thus a creation of a statute and it should normally be available to a person who is aggrieved by the declaration of the results of an election. The said remedy has thus to be construed in a manner as provided under the statute. A right to file an election petition is thus a creation of a statute and it should normally be available to a person who is aggrieved by the declaration of the results of an election. However, in the interest of the purity of election with which the whole constituency for which the election is held is concerned, the said right to file an election petition is in appropriate cases enlarged. The above purpose of the election petition needs to be kept in mind while interpreting section 21 of the Act. 12. I now turn to the decision of the Allahabad High Court in the case of (Vishwa Mittra v. District Judge)7, A.I.R. 1956 All. 89 which has a direct bearing upon the above question of interpretation in the instant case. The question which arose in the Allahabad case was whether a person whose nomination paper was rejected had a right to file an election petition as provided in Rule 43 of the Rules framed under the Cantonment Act. The decision of this Court in Sitaram's case (supra) and the decision of the Allahabad High Court in Shiv Kumar's case, cited supra, were relied upon to show that the expression “candidate at the election” used in rule 43 of the Rules framed under the Cantonment Act would include a candidate who contested the election and not a candidate whose nomination paper was rejected. The Allahabad High Court held in the said case that the above phraseology “candidate at the election” occurring in the relevant provision of the Cantonment Act has to be interpreted in the light of its own context and no assistance can be taken from the other Acts containing similar provisions. 13. As already pointed out, section 21 of the Act which provides for calling in question the election, co-option and nomination of a Councillor confers the right to file an election petition upon the two categories of persons (1) candidate at the election and (2) by any person who, is entitled to vote at the election. 13. As already pointed out, section 21 of the Act which provides for calling in question the election, co-option and nomination of a Councillor confers the right to file an election petition upon the two categories of persons (1) candidate at the election and (2) by any person who, is entitled to vote at the election. The proposition that the word “election” used in conferring the right to file an election petition upon the above two categories of persons covers Co-option and nomination of a Councillor is no more in doubt in view of the decision of this Court in the case of Daruwala v. Namdeo, 1987 Mh.L.J. 607 (supra). Even the ordinary Dictionary meaning of the word “Co-option” shows that it means “to elect into a body by the votes of the existing members” (see Webster's Dictionary). Further, perusal of the Co-option Rules also supports the above construction as they clearly indicate that the procedure for co-option therein is similar to the procedure normally adopted for election. It may be seen that there is a procedure under the Co-option Rules for filing nomination papers, scrutiny of nomination papers, withdrawal of nomination, voting by the elected councillors in accordance with the rule of proportionate representation by means of single transferable vote, and after counting of votes in the manner provided in the said Rules for declaration of the results of the election which is a phraseology used in Rule 18 of the said Rules. Co-option is thus “election” within the meaning of the said expression used in describing the above two categories of persons upon whom the right to file the election petition is conferred. 14. Similarly, as regards the nomination of a Councillor, section 18(2) of the Act itself provides that any person nominated by the State Government under sub-section (1) shall be deemed to be elected under the said section. It may be seen that if there is a failure to elect a Councillor even after a fresh election from any ward, a power is conferred under section 18(1) of the Act upon the State Government to nominate a duly qualified person as a Councillor for such a ward. Such a candidate nominated by the State Government is deemed to be an elected Councillor at an election under the Act by virtue of sub-section (2) of section 18 of the Act. Such a candidate nominated by the State Government is deemed to be an elected Councillor at an election under the Act by virtue of sub-section (2) of section 18 of the Act. It is thus clear that the expression “election.” used in describing the above two categories of persons upon whom the right to file an election petition is conferred covers co-option and nomination of a Councillor also. 15. As regards the second category of persons who can challenge the election, the respondent No. 1 cannot maintain the petition in his capacity as an elector in the Municipal elections, because, the right under the said category is conferred upon the Councillor of the Municipal Council who has a right to vote at the election by Co-option of a Municipal Councillor as held by this Court in Daruwala's case cited supra. The question which, therefore, needs consideration is, whether the respondent No. 1 who has withdrawn his nomination paper voluntarily can fall in the first category of persons who can challenge the election by Co-option, viz. “candidate at the election”. From the decision cited supra, it is clear that the said expression means a candidate who has contested the election. It is, therefore, clear that a person who has withdrawn his candidature voluntarily cannot be said to be a person who has contested the election. However, it is made clear that in a case where the nomination paper of a candidate is wrongly rejected, such a candidate must be held to be “candidate at the election”, because he is wrongfully deprived of his right to contest the election by rejection of his nomination paper which means in other words that, but for a wrongful rejection of his nomination paper he would have been able to contest the election. Be that as it may, the respondent No. 1, is a person who has voluntarily withdrawn his candidature from the election in question by co-option and he cannot, therefore, be said to be a “candidate at the election” within the meaning of the first category of persons upon whom the right to file an election petition is conferred. The instant election petition under section 21 of the Act at his instance is, therefore, not maintainable and is liable to be dismissed on this short ground. The instant election petition under section 21 of the Act at his instance is, therefore, not maintainable and is liable to be dismissed on this short ground. In this view of the matter it is not necessary to go into other contentions raised on behalf of the petitioners in the instant writ petition. 16. In the result, the instant writ petition is allowed. The impugned order of the learned District Judge is set aside and the election petition filed by the respondent No. 1 is dismissed. Rule made absolute in the above terms. No costs. Writ Petition allowed. -----