Arunachalam and Others vs Marappa Goundar and Others

Srinivasan, J.—The facts leading to these two petitions are similar and those in the first of them will be set out in detail. The Mettupudur Village Panchayat was constituted in 1960. It consists of two wards, Mettupuiur ward with three members and the Kinipalayam ward with four members. Kinipalayam is a hamlet of Mettupudur village.

The Divisional Panchayat Officer issued a notice, dated 12th August 1960 calling for the election of members to the Panchayat. It was stated in the notice that the nomination papers would be received by the Election Officer) at the District Board Single Teacher School, Mettupudur, between 9 a.m. and 11 a.m. on 5th September 1960 and that in the event of there being a contest, the polling would take place on 6th September 1960 in the same premises. This was announced by beat of tom-tom and by other means of publication prescribed. On 1st September 1960, however, the Divisional Panchayat Officer issued an erratum to the earlier notification, which was to the effect that the premises where nominations would be received and the election would take place was the Elementary School, Kinipalayam. This notice is stated to have been given wide publication. On 5th September 1960, a number of nominations were filed and on 6th September 1960 a poll was taken. The Petitioner in Writ Petition No. 1047 of 1961 and Respondents 2 and 3 were elected as member from Ward 1. Likewise, the Petitioner and some of the Respondents in Writ Petition No. 1048 of 1941 were elected for the other ward. These elections were challenged by Election Petition Nos. 77 and 78 of 1960 before the Election Commissioner, the District Munsif of Erode. The Election Commissioner set aside the elections principally on the ground that between the 1st of September 1960, the date on which the erratum to the original notification was issued, and 6th September 1960, the date of the election, there was not the interval of time required by the rules. He referred to certain decisions of this Court which lay down that a mere non-compliance with the rules was not sufficient to invalidate an election, unless there was evidence to establish that the result of the election had been thereby materially affected. But he thought that in the instant case, that principle could not be applied. He relied upon a decision of the Rajasthan High Court in holding that the non-observance of the mandatory rule with regard to the interval invalidated the entire election proceeding.

The Petitioners are those who had been elected and who had been unseated by reason of the decision of the Election Commissioner. They have filed these petitions under Article 226 praying that the order of the Election Commissioner may be quashed by reasons of the errors of law therein, and also the further reason that the Election Commissioner had failed to consider whether the result of the election was materially affected by the non-observance of the rule, if any.

I may refer briefly to some salient points before examining the position in law. It is not now in dispute that there is only one school located in Kinipalayam hamlet and that there is no other school of any description in Mettupudur village including the hamlet. Mr. Srisailam, for the Respondents, attempted to show that there was some kind of pial school in Mettupudur village, but after reading the evidence in this regard in the entirety before me was not able to substantiate that the village of Metupudur, including its hamlet, had any recognised school of any description other than the Kinipalayam elementary school. It should follow from this feature that the notice initially issued by the Divisional Panchayat Officer, though it indicated the school at the District Board Single Teacher School, could have misled no one at all. There is also the further evidence that the revised notification giving the correct name of school was published in the manner required by the rules. It was vaguely suggested, however, that since one of the successful candidates at the election was related to the village munsif, the village munsif was responsible for creating a certain amount of confusion in this regard. But the evidence, however discloses that this erratum notification, as it was called, was duly published. Another feature is that though the Respondents who impugned the election before the Election Commissioner on the ground that the change of venue had prevented them from filing their nomination papers and figuring as candidates actually participated in the election that took place on the 6th September, no objection of this nature was preferred before the Election Officer on 6th September 1960. That is the admitted position. The absence of any such protests would naturally indicate that these persons were certainly not misled into thinking that the receipt of the nomination or the election was to take place at a place different from the Kinipalayam elementary school.

It may also be worth noting that more than eighty per cent of the voters exercised their franchise. Though this may not be conclusive upon the question, it has still some bearing upon whether there was due publication of the relevant notices or not.

The contention of the Respondents was that they were waiting at the Vinayakar temple expecting that the Election Officer would come there to receive the nomination papers. It was not explained at any stage how the Vinayakar temple came into the picture at all. There was no evidence to suggest that Vinayakar temple was notified as the place where the nomination papers would be received. When the Respondents did not deny that the District Board Single Teacher School, Mettupudur, was the place which was announced as the one where nominations would be received and the election would take place, they did not explain how they chose to wait at the Vinayakar temple.

Whatever that may be, the Election Commissioner found that there had been due publication of the notices. In his view, it was the notice notifying Kinipalayam school which was published on 1st September 1960 that should be regarded as the relevant notice. He thereafter proceeded to hold that since the election was held on the 6th of September, the rule with regard to the interval between the two dates had been infringed. The short question that I have to consider is whether the infringement of this rule simpliciter is sufficient to justify the setting aside of the election.

I may mention here that there has been some confusion as to the rules that are applicable. The matters seems to have been proceeded before the Election Commissioner as if the Panchayat in question was a Class I Panchayat and those rules relevant thereto have been cited in the order. It is however brought to my notice that this is a Class II Panchayat. The only point of difference between the two is that while in the case of a class I Panchayat the requisite interval is seven days between the date of the publication of the notice calling for the election and the date of the election itself, in the case of Class II Panchayats, the interval required is ten days. In principle however that makes no difference to the question calling for determination.

In Palaniappa Pillai Vs. Sellappa Gounder and Others, the question arose whether mere non-compliance with the rules for, the conduct of elections would justify the Election Commissioner in setting aside the election. The particular rule that was said to have been infringed in that case was the failure to provide ballot boxes for two of the candidates whose withdrawal from the contest was treated by the Election Officer as valid. The opposing party who filed the election petition contended that the withdrawals were invalid and that ballot boxes should have been provided for those two candidates as well, and that on account of this irregularity, the result of the election had been materially affected. The Election Commissioner accepted this contention and set aside the election. This view was affirmed in Writ Petition 23 of 1954, where in Rajagopala Ayyangar, J., agreed with the finding of the Election Commissioner that the irregularity had materially affected the election. When the matter came up in appeal, the appellate Court referred to the decision of the Supreme Court in Vashit Narain Sharma Vs. Dev Chandra and Others, applying the principle of that decision to the case before them pointed out that whether the result of an election was vitiated or not would be a finding of fact and cannot be based on speculative reasoning. The mere statement of interested parties such as an unsuccessful candidate that the result of the election might have been otherwise if certain other persons had stood as candidates was not sufficient to establish that the result of the election was materially affected. The conclusion was that the view taken by the Election Commissioner, in the absence of facts upon which any decision as to the result of the election could be founded amounted to a wrong construction and application of the relevant rule and was an error apparent on the fact of the record. This decision emphasises that an election cannot be set aside, by reason of a mere irregularity unless it can be positively established that the result of the election has been materially affected. The above decision as well as the Supreme Court decision referred to have also been considered in Vadivelu Padayachi Vs. Sanjeevi Padayachi and Another, There also it was held that there should be proof that the election result had been materially affected before the election could be set aside.

Even apart from the absence of a finding by the Election Commissioner to that effect, such a contention does not appear to have been put forward. The entire discussion of the Election Commissioner has really proceeded upon the basis that the election itself is illegal by reason of the non-compliance with the rule. These decisions establish that such an approach cannot justify the setting aside of the election.

Mr. Srisailam, learned Counsel for the Respondents, argues that there was a change of the venue in the present case. I can understand the contention if by that is meant that the Election Officer having announced that the election would take place at a particular place had without giving any further notice conducted the election at a different place altogether, that would be a matter of substance which would establish that the election was not held in accordance with the notice and therefore became a void or invalid election. In the present case, however, as I have pointed out, the venue could not have been mistaken despite the wrong name assigned to it. Even apart from that, there had been a second notice duly published by reason of which the venue was more precisely described. Mr. Srisailam practically confined his arguments to supporting the order of the Election Commissioner on the question of the interval of time. In this regard he has relied upon Subrahmanya Raju v. Peddaswami (2) (1963) 2 and. W.R. 27. In that case, the election of the President was scheduled to take place on a particular day. Six members were present on the date of the election and the President was elected unanimously. This election was challenged by another member of the Panchayat, contending that no notice of the meeting was served on some of the members of the Panchayat, the factum of service was disputed, the successful party contending that notices were in fact issued by certificates of posting and they had knowledge of the meeting. It was as a matter of fact found by the Election Commissioner that no notice was issued to three of the members of the Panchayat. The learned Judge made certain observations pointing out that there could be cases where the irregularity was of such a nature that it was unnecessary to record a finding whether the result of the election was. materially affected. The conclusions that the learned Judge reached in that case was that where the rule requires that all the members of the Panchayat should be given notice of the election, and such notice was given, it should follow that the meeting itself was illegally convened and the election must be deemed to be, equally invalid. In that view, it is obvious that no further question of the result of the election having been materially affected could possibly arise.

In another decision of this Court in K. Kalianna Goundan Vs. Marappan and Others, there had been an improper reception of a number of votes. In fact, there had been an issue of more ballot papers than necessary and recording of more votes than there were voters. Ramachandra Ayyar, J., as he than was, held that an irregularity of that description virtually amounted to a participation by the Election Officer in a fraud in the conduct of the election and that an election so conducted would be a farce and not a valid one. These are clearly cases where the election itself became invalid by reason of one circumstances or another. In those cases it was held that the further requirement that the result of the election was materially affected did not require to be proved. These cases are not applicable to my mind to the present case.

It is true that the Rajasthan High Court has held that the failure to give the requisite interval vitiates the election itself. But in so far as the decisions of this Court go, a different view has been expressed.

Applying these decisions to the facts of the present case, it is clear that the election cannot be held to be invalidated by reason of such fundamental defects as those referred to in the cases cited. Mere failure, even assuming that the notice that was issued on 1st September 1960 was the notice which should be had regard to in the computation of the interval of time, to observe the rule in that regard is not sufficient according to the decided cases to invalidate the election. The Election Commissioner had to further find that the result of the election had been materially affected. In the absence of such a finding, the Election Commissioner had no jurisdiction to set aside the election.

The order of the Election Commissioner is accordingly quashed. The rules are made absolute. There will be no order as to costs.