B. Srikantalah vs The Election Officer Hindupur Municipality and Others

Bhimasabkaram, J.—This is a petition under Article 226 of the Constitution of India seeking the issue of a writ of certiorari quashing the order of the Election Officer, Hindupur Municipality, confirmed on appeal by the District Collector, Anantapur and passed in the following circumstances:

The Petitioner stood as a candidate for a councillorship of the Hindupur Municipality from Ward No. 14. He duly filed his nomination paper on 25th May, 1956. But, it was rejected on 26th May, 1956, by the Election Officer, the 1st Respondent herein, on the ground that the Petitioner was in arrears of land-tax due to the Municipality relating to the years 1954-55 and 1955-56. This rejection wds made under Rule 7 (2) of the "Rules Conduct of Elections of Municipal Court framed by the State Government in exert the powers '' conferred upon them under of the Madras District Municipalities Act, in after called the Act.. Rule 7-A thereof pro-for an appeal to "the Collector against an order of the Election Officer rejecting the nomination of a candidate. The Petitioner filed an appeal but was unsuccessful.

The Petitioner contends before us that Rule 7 is ultra vires of the rule-making power or the disqualification alleged against the Petitioner falls u/s 49, Sub-section (2) Clause (g) of the Act. Section 51 of the Act enacts that the question as to whether a councilor is disqualified on the grounds referred to in Sub-section (1) of Section 48 and Sections 49, 50 and 60, is to be investigated by the District Judge of the district in which the Municipality is situated. That is a tribunal specially provided by the Act itself and therefore any rules made by the State Government enabling the Election Officer for the Election Commissioner, when an election petition is filed) to deal with such a disqualification is contrary to the terms of the Act. The Petitioner''s disqualification, if any, must only be investigated by the District Judge on a proper application made u/s 51 of the Act by the persons named therein and cannot be a ground for rejection, pf his nomination paper by the Election Officer.

To appreciate the argument, it is neces the bear in mind the language of the relevant bra Chins of the sections which are given below the shall first quote portions of Sections 48 and 49 and than the whole of Sections 60 and 51, because it will the more convenient to consider them in that Order 48(1) NO person shall be qualified for elector as ''a councilor tuneless the name of such person" appears on the electoral roll of the municipality.

(1) A person who has been sentenced by a criminal Court to transportation or to imprisonment for a period of more than six months for any offence other than an offence of a political character or a n offence not involving moral delinquency such sentence not having been reversed or the offence pardoned, shall be disqualified for election as a councilor while undergoing the sentence for five years from " date of the expiration of the sentence.

(2) A person shall be disqualified for election councilor if such person is at the date of nomination or election: (a) of unsound mind, a deaf-mute or leper (b) an applicant to be adjudicated a bankrupt or insolvent or an uncertificated bankrupt or undercharged insolvent;

(c) interested in a subsisting contract made wetware any work being done for the municipal council except as a share-holder (other than a director) in (a company).

(g) in arrears of any kind due by him (otherwise than in a fiduciary capacity) to the municipality up to and inclusive of the previous year, in respect of which a bill or notice has been duly served upon him and the time if any specified -therein for payment has expired.

51, a 50 (1) Subject to the provisions of Section councilor shall cease to hold his office if he (a) far sentenced by a Criminal Court to such punishment, and for such offence as is described Section 49;

(b) becomes of unsound mind, a deaf-mute, or a leper;

(c) applies to be adjudicated or is adjudicated a bankrupt or insolvent, etc.

Every person convicted of an offence punishable u/s 56 (which provides for the punishment of the infringement of secrecy of Selection) or under Chapter IX-A of the Indian ''Penal Code shall be disqualified from voting or from being elected in any election to which this Act applies or from holding the office of municipal councillor for a period of five years from the date of his conviction or for shorter period as the Court may by order, determine.

(1) Whenever it is alleged that any person who has been elected as a councillor is disqualified under Sub-section (1) of Section 48, Section 49, Section 50 or Section 60, and such person does not admit the allegation, or whenever any councillor is himself in doubt whether or not he has become disqualified '' -for office u/s 50 or Section 60, such councilor or "any other councilor may, and the executive authority at the request of the council, shall apply to the District Judge of the district in which the municipality is situated.

The said Judge after making such inquryas4i he-deems1 necessary Bhall determine whether or not such person is disqualified under Sub-section (1) of Section 48, Section 49, Section 50 or Section 60 and his decision shall be final (3) Fendingi such decision, the councilor shall be entitled to act as if he were not disqualified.

The relevant Portion of Section 303 and Rule 7 of the "Rule''s Jot the Conduct "of Elections of Municipal councillors on which the Jearneddounsel for the petiti6n''erJlrelies may limbered:

(1) The State Government may make rules to carry put all ..or any, of the, purposes'' of this Act not Consistent, therewith. (2) particular and without, prejudice to the generality of the foregoing power they may make rules.

(a) with reference to all matters expressly required or- allowed by this Act to be -prescribed: (b) with reference to all matters not expressly provided1 for I this Act, relating to the. elections of chairman vice chairman or councillors including, deposits to be made by candidates standing for election as councillors and the conditions under which such deposits may be forfeited:

Rule 7. the date appointed for the scrutiny of nominations the candidates, one propose and one seconded of each .candidate and one other person, the of authorised in writing by each candidate and except for the purpose of assisting the Election Officer, no other person may attend at'' such time and place as may be specified under Rule 6 and the'' Election Officer shall give such persons alb reasonable facilities to examine the nomination papers'' of all candidates .which have been received as aforesaid..

(2) The Election Officer shall then examine the nomination papers and shall decide all objections which may, be made'' at the time to any nomination and may either on such objection or on his motion after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:

(i) that the candidate is ineligible for election u/s 48 or Section 49 of the Act;

(3) The Election Officer shall endorse on each nomination paper his decision accepting or rejecting, the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection, Section 7A.(2). Againstnariy order rejecting the nomination of a candidate; an appeal shall lie to the District Collector.

The learned Counsel for the Petitioner submits that Rule 7 which empowers the Election Officer to reject a nomination paper on the ground that the candidate is ineligible for election u/s 48 or 49 of the Act is Inconsistent with the scheme of the Act, because the Act contemplates adjudication of such questions" only by a special tribunal viz., the District Judge. If he is right the ineligibility of a candidate for election on the grounds mentioned u/s 48 (1) or Section 49 cannot be considered before an election.

We cannot agree with this contention. It seems to us that Section 48(1): and 49 specify the grounds of disqualification for election as a councilor, that is to say, a person who suffers from any of the disabilities''" mentioned therein is not qualified even to stand for election. It is right therefore that that should be an authority to disallow the candidature of a person subject to any seniority But the Legislature at the same time, contemplated that it may happen that the disqualification is not noticed at the time of the election; and where such is the case, an elector or a rival candidate may in an election petition impeach the validity of the election on the ground that the returned candidate was not qualified for election.

Further if no such petition is filed and a person becomes a councilor even then his disqualification at the time when he stood as a candidate may still be brought up at the instance of the persons named in Section 51 for consideration by the District Judge.

Now the State Government has power u/s 303(2)(b) to make rules with reference, to all matters not expressly provided in this Act relating to the elections councils fors". There is no express provision in the Act as to how the disqualifications under Sections 48 and 49 are to be enforced. Therefore, when the Act declares disqualifications for election an a councillor the machinery for enforcing them may well. be provided by rules framed by the State Government.

Construing similar provisions of the Madras Village Panchayats Act, couched almost in the same language, we expressed an identical view in W, P. Nos. 763 and 733 of 1953. Section 19 of that Act corresponds to Section 51 of this Act and Section 12 to 16 of that Act are on the same lines as Section 48, 49, 50 and 60 of the present Act. We made these observations in that case The word ''election'' is comprehensive enough to take in the entire process starting from the nomination and ending with the declaration of the results. See N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, ; and Selva-ranga Raju v. Doraiswamy Mudaliar, ILR 52 Mad 732 : AIR 1929 Mad 727. If a nomination paper is improperly received or refused for the reason that the candidate is not qualified or has become disqualified within the meaning of Section 13 to 16, it is a defect during the process of election and, therefore, that question falls to be considered only in Election petition, whereas section 19 provides for the decision of the question of the disqualification of a person, who has been elected member for, under that section, when it is alleged that any person who has been elected as a member of a panchayat is not qualified or has become disqualified, the persons mentioned therein can apply to the prescribed judicial authority for; a decision on the question of the qualification or disqualification.

The operation of that section therefore is confined only to a stage after the election. It deals with a member after he has been elected. There is, therefore, no essential conflict, between the provisions of Section 19 and the rules for the decision of election disputes It was decided by a Full Bench of the Madras ''High Court in ILR 52 Mad 732 : AIR 1929 Mad 727that a disqualification u/s 49 of the Act can be made a ground for a petition impugning the election under Rules 1 and 2 (c) of the "Rules for the decision of disputes as to the validity of an Election held under the Act, and that '' there is nothing in. Section 51 of the Act to preclude such a course being taken. Dealing with the question of a possibility of conflict between a decision !in an election petition and a decision u/s 51; Wallace J., remarked thus;-

The main argument on the other side Is that which has been emphasized in the order of | reference, namely, that to allow this matter to be '' agitated before an Election Petition Court, which may be-the Court of a Subordinate Judge, may lead to a conflict of decisions; for instance, the Subordinate Judge may hold on an election petition that the candidate was. Dies qualified while the District Judge on a petitions u/s 51 may hold that he was not, or vice versa. But, I do not think any real conflict will occur if Section 51 is used as it evidently was intended to be used.

I think it applies to cases where the election has gone through without challenge and something has occurred thereafter which raises doubt about the qualification of some sitting councilor. The Election Court decides whether or not there has been a proper election of a properly qualified candidate and its decision on that point is final.

Ananthakrishna Ayyar observed in the same case as follows:

In the case of the provisions of Section 49, that a person shall be disqualified for election as a Municipal Councilor if such person is, at the date of the-nomination, laboring under any of the disqualifications mentioned in the section, and in spite of the existence of such disqualification, if a candidate is nominated and subsequently declared elected, then the Judge passing order on the election petition is entitled to declare the election of the candidate to be void, being contrary to the provisions of Section 49 of the Act.

Otherwise, the voters or the rival candidates would be. without any real remedy, and in my view it is not a proper answer to say that it is open (1) to a Councilor to take action u/s @1 of the Act and (2).to the Chairman in charge of the nomination proceedings to solicit orders from the Government. It is clear that a rival candidate who would be entitled to be declared elected if the returned candidate be held to be disqualified u/s 49 of the Act could not have his proper rights secured to him, unless, such a matter could be inquired into by means of an ''election petition.

The learned Judge adds that in this view there would be No. conflict of jurisdictions. With great respect to both the learned Judges we think that the have not come to grips with the question as to a possible conflict of decisions. Suppose an elector or a rival candidate files an election petition alleging a specific disqualification of an elected councilor and the Election Commissioner holds that .the Disqualification alleged does not exist, "In this case, the election has not gone through without challenge up use the words of ''Wallace"

Does that the an that no application u/s 51 is sustainable thereafter on the same ground There is nothing in Section 51 to indicate that. If such an application is maintainable, there is certainly the possibility pf a conflict of decisions on the same point. The decision in an election petition cannot be held to beers judicator even on general principles of that doctrine for, Section 11 CPC would not of course, in terms apply-for the reason that the parties are not same in the two proceedings.

However that may be it does not seem to us permissible on., that account to disregard the express language of Sections 48 and 49 which .specify certain disqualifications for election and which therefore necessarily envisage disabling a would be Candidate from participating in an election. We therefore, hold .that Rule 7 quoted above is intra the In, the, present case, the election Officer had'' jurisdiction, {to reject the nomination paper of the Petitioner on the ground that he was I in default in regard to payment of land tax due to the Municipality.

The result therefore is that this petition fails and is dismissed with costs. Advocate''s fee