Dirisala Tircpati Rayudu and Another vs Yerra Venkatcswarlu and Others

Chandra Reddi, J.—C.M.P. No. 6683 of 1954: This is a petition by one of the voters in Ward No. III of Varapani Panchayat to come on record as a party respondent on the death of the 1st respondent in C.R.P. No. 692 of 1954. The facts leading upto this petition may be briefly stated:

The petitioner in C.R.P. No. 692 of 1954 was elected President of the Varagani Panchayat in the recent election. The 1st respondent filed a petition before the Election Commissioner, Guntur, in O.P. No. 41 of 1953, for setting aside the election of the petitioner as President, ''inter alia'', on the ground that votes of dead persons were polled at the instance of the petitioner and also that minors who were not entitled to vote exercised their franchise in favour of the petitioner. The Election Commissioner found these allegations to be true and declared the election of the petitioner void under Rule 11 of the Rules framed under the Madras Village Panehayats Act. The petitioner has filed a revision petition in this Court under Article 227 of the Constitution, challenging the validity of the order of Election Commissioner and obtained an interim suspension of the operation of the order of the Election Commissioner.

The 1st respondent filed a petition to vacate the interim order but before this could be disposed of, i.e. on 18-6-1954, he died. The present petition is filed by one of the voters of the Panchayat to come on record and contest the petition.

This is opposed by the petitioner in the civil revision petition, that is, the party who was unsuccessful before the Election Commissioner, mainly on the ground that he has no ''locus standi'' to get himself impleaded in the proceedings.

According to Mr. Subrahmanyam, counsel for the respondent in this petition (the petitioner in the civil revision petition) this case falls under Rule 9 of the Rules framed Tinder the Village Panchayats Act, and it is, therefore, not open to the petitioner to come on record. Rule 9 says:

An election petition shall abate on the death of a sole petitioner or the survivor of several petitioners and such abatement shall be communicated to the Executive Authority of the Panchayat concerned and the election authority by the Election Commissioner.

The argument of Mr. Subrahmanyam is this: The election petition before the Election Commissioner shall be deemed to be still pending and that, therefore, the 1st respondent who was the petitioner before the Election Commissioner should still be regarded as a petitioner and when the 1st respondent died the petition which has still to be deemed pending, has abated by virtue of Rule 9 and there is nothing more to be done by one of the electors coming on record. I find it very difficult to accept this argument. I do not see how after the disposal of the election petition declaring the election of Mr. Subramanyam''s client to be void, it should be treated as pending.

In fact a finality has been given to that order u/s 19 and it is only by invoking the prerogative jurisdiction of the Court, that the defeated party is questioning the validity of the order of the Election Commissioner. When once the petition is disposed of and the petitioner before the Election Commissioner has succeeded and is impleaded as a respondent Jo the revision petition in the High Court, it is too much to argue that the petition before the Election Commissioner is still undisposed of and that the successful party before the Election Commissioner who is impleaded as a respondent in the revision petition in the High Court, is a petitioner and that his death has brought about the abatement of the petition before the Election Commissioner.

I do not know by what logic or fiction this result can be achieved. There is absolutely no force or substance in this contention. It is unnecessary for me for the disposal of this case to consider whether there is any conflict between the principles embodied in Rule 7 and that in Rule 9 in the view I have taken, namely, that the death of the respondent in the revision petition has not resulted in the abatement of the election petition.

This leads me to the question whether the petitioner in the present civil miscellaneous petition has a ''locus standi'' to come on record as a party respondent. Here again Mr. Subramanyam urged that the only remedy which was open to the elector concerned, was to have filed a petition under Rule 1 of the Election Dispute Rules or to have got himself impleaded under Rule 5 and having failed to do either of these two things, it is not open to him now to ask to be joined as a party in this revision petition.

The learned Counsel submitted further that the only provision under which parties can be added to pending proceedings is the one laid down in Order 1, Rule 10, Code of Civil Procedure, and that cannot have any application to inquiries before the Election Commissioner, having regard to Rule 6 of the Election Dispute Rules.

It is not necessary for me to consider the second argument, namely, the applicability of Order 1, Rule 10 for the reason that the proceedings, in which the party seeks to come on record, is a revision. The provisions of Order 1, Rule 10 can be called into play in suits or appeals and not in revision petitions. The addition of parties in a civil revision petition can be ordered only in exercise of the inherent powers of a court u/s 151, CPC All the provisions of the CPC do not govern revision petitions.

In -. ''Manickkam v. Ramanathan Chettiar AIR 1949 Mad 435 (A), a Bench of the Madras High Court consisting of Rajamannar, Chief Justice, and Satyanarayana Rao J., held that the provisions of Order 22 that relate to the abatement on the death of one of the parties had no application to civil revision petitions and that the legal representatives of a dead party could be brought on record without any reference to the time in which the application for coming on record was filed.

It is unnecessary to multiply the authority for the position that only such of the procedural laws as is made specifically applicable to civil revision petitions by Rules framed in that behalf governs the civil revision petitions.

A revision petition against an order of the Election Commissioner is anytheless a petition entertained in the revisional jurisdiction notwithstanding it is entertained under Article 227 of the Constitution. So it is not by virtue of Order 1, Rule 10 that an additional party can be impleaded in a revision petition. However, as the question has been argued at some length as to whether Order 1, Rule 10 is applicable to enquiries before the Election Commissioner, I proceed to express my opinion on this also.

According to Mr. Subrahmanyam, counsel for the respondents, only such of the provisions of the CPC that are enumerated in Sub-rule (2) of Rule 6 that are attracted to the proceedings before the Election Commissioner viz., discovery and inspection, enforcing the attendance of witnesses, compelling the production of documents, examining witnesses on oath, reception of evidence taken on affidavit and issuing commission for examination of witnesses, etc. This argument overlooks the rule enacted in Sub-rule (1) which says:

Every election petition shall be enquired into by the Election Commissioner as nearly as may be in accordance with the procedure applicable under the provisions of the Civil Procedure Code, 1908, to the trial of suits....

This sub-rule makes it abundantly clear that the Election Commissioner should adopt the procedure governing the trial of suits as nearly as possible. In my opinion Sub-rule (2) does not restrict the power of an Election Commissioner conferred under Sub-rule (1) to adopt the procedure applicable to suits.

An analogous provision of law contained in Section 90, Representation of the People Act, was interpreted by the Supreme Court ill - Jagan Nath Vs. Jaswant Singh and Others, . Sub-section (2) of Section 90 is in these terms:

Subject to the provisions of the Act and of any rules made thereunder every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits.

The language of this and of Sub-rule (1) of Rule 6 of the Rules referred to above is substantially the same. The Supreme Court decided that having regard to this section, an Election Tribunal was entitled to direct the addition of a respondent, who was omitted originally from the list of respondents under the provisions of Order 1, Rules 9 and 10.

This case was Sought to be distinguished on behalf of the respondents on the ground that the powers of an Election Tribunal are not circumscribed in the matter of adopting the provisions of the CPC as is done in the case of Election Commissioners by Sub-rule (2) of Rule 6. This distinction is devoid of force. There is a provision in Section 90(2) of the Representation of the People Act, similar to the one in Sub-rule (2). In view of the provisions of Sub-rule (1) of Rule 6 and the pronouncement of the Supreme Court cited above, there can be little doubt that the provisions of Order 1, Rule 10 are attracted to enquiry in election disputes, under the Madras Village Panchayats Act.

Now coming to the contention based on Rules 1 and 5 of the Election Dispute Rules, I must remark that this also lacks substance. Rule 1 prescribes the mode in which an election may be called in question and also provides a machinery to try the election disputes. Sub-rule (1) confers a right, on any elector to challenge the validity of an election of a Member, President, or Vice-President. It does not take away the right of a voter to continue the proceedings in certain contingencies.

If the argument presented on behalf of the respondents were to be accepted, every voter should file an election petition to enable Rim to come on record at a later stage for any reason, which seems to be far from the intention of the Legislature. Rule 5 has not much bearing on the point for decision. The latter part of the rule only enables one of the candidates not impleaded as a respondent to come on record as a party respondent on his own application.

Rule 1 of the Rules framed under the Act, which enables any elector to challenge the validity of an election, seems to be based on the principle that it is not only the rival candidate that is interested in the election of a member or a President or Vice-President but the whole constituency is interested in the purity of the elections. This principle has been recognised in a number of rulings of the English, as well as Indian Courts. It is, therefore, clear that a proceeding before an Election Commissioner challenging the election of a member or a President or a Vice-President is a representative one.

It follows that any member of the constituency or any voter is interested in the result of the election petition. In such a situation, it looks to me that an elector has ''locus standi'' to come on record in a pending proceeding in the Court under Article 227.

If the proceeding is of a representative character any member who is interested in it can come on record is a proposition that has been accepted in decided cases.

It is sufficient to refer to a Bench ruling of the Madras High Court in - ''Parameswaram Munpu v. Narayanan Namboodr AIR 1917 Mad 389 (C). There a suit was brought u/s 92, Code of Civil Procedure, by two of the worshippers with the previous sanction of the Advocate-General. On the death of one of the Plaintiffs some of the worshippers wanted to come on record and continue the suit. Objection was taken that the suit abated on the death of one of the two Plaintiffs, and, therefore, it was not open to the other worshippers to continue the proceedings by coming on record.

This was overruled by a Bench of that Court on the ground that the Court had power to add other worshippers, not because they were the legal representatives of the persons who instituted the suit, but having regard to the representative character of the suit they had become parties to it, and therefore should be brought on record on behalf of all the worshippers.

I express my respectful accord with the principle enunciated in that case, and hold that the petitioner is in the same position as the worshippers in a suit u/s 92 and can come on record on the death of the party respondent. There is nothing either in the rules framed under the Act or in the main provisions of the Act which precludes his being impleaded as a party, and u/s 151 the Court has got power to implead him as a party respondent. It follows that this petition should be allowed.

C.M.P. Nos. 4002 of 1954 and 6682 of 1954: The question that arises in both the petitions is whether the interim suspension of the order of the Election Commissioner should be made absolute or should be vacated.

Under Rule 11 of the Rules framed under the Madras Village Panchayats Act, the order of the Election Commissioner is final. No doubt the aggrieved party can in certain circumstances, question the validity of it in this Court in appropriate proceedings. When once the Election Commissioner has found the election to be void by reason of the successful party at the election being guilty of corrupt practices, there is no reason why he should be allowed to continue as President merely because the revision petition against the order of the Election Commissioner is pending.

The prayer, therefore, for the suspension of the operation of the order of the Election Commissioner so as to enable him to continue as the President'' should be disallowed. But there will be no fresh election pending the disposal of the civil revision petition. The civil revision petition is expedited and posted for final disposal as early as possible. There will be no order as to costs in either of the two petitions.