G. Balusamy Naidu vs Election Court and Others

Chandra Reddy, C.J.—The petitioner seeks the issuance of a writ of certiorari to quash the order of the Election Court, Udumalpet, setting

aside the election of the petitioner.

The petitioner and respondents 2 to 4 contested for a seat from Ward No. 3 to Pudupalayam Panchayat in the General Elections held on 2nd

February, 1965. At the time of scrutiny of nominations an abjection was raised by the second respondent that the petitioner was disqualified by

reason of his having a subsisting contract with the Panchayat within the purview of Section 25(2) of the Madras-Panchayats Act, 1958 which will

hereafter be referred to as the Act. This objection, was overruled and, in the subsequent poll, the petitioner was declared elected. Impugning this

election the second respondent filed a petition under Rule 11(c) of the Rules for Decision of Election Disputes Relating to Panchayats. This

objection as to the petitioner''s disqualification prevailed with the Election Court with the result that the petitioner''s election was set aside and a

fresh election ordered. It is this determination of the Election Court that is impeached in this writ petition.

The basis of this petition is that the rules which empowered the Election Court to adjudicate upon disputes relating to these elections are

unconstitutional in that they are repugnant to certain provisions of the Act and consequently the Election Court lacks jurisdiction to decide disputes

relating to these elections. What is urged by Sri Venugopal, learned Counsel for the petitioner, is that there is inconsistency between the rules,

which will be extracted presently, and, Section 28 of the Act, which authorises an authority to be designated by the Inspector to decide questions

relating to the disqualification of members. Section 28 of the Act, according to learned Counsel, contains an exhaustive code to deal with

determination of all questions arising out of disqualification and any rule framed by the Government in regard to the same subject-matter and which

travels beyond the scope of the section is null and void. It is maintained that while Section 28 of the Act confines the right to question the validity of

an election to members or the executive of the panchayat or to the successful candidate himself, the rules extend such a right to all the electors and

to the rival candidates. This is not in consonance with the intendment of Section 28 of the Act, argues learned Counsel. He says that the provisions

of Section 28 and the relevant rules relating to election disputes disclose the repugnancy between them both.

In order to appreciate these contentions we will have to read the material statutory provisions. Section 28 of the Act reads:

Whenever it is alleged that any person who has been elected as member of a panchayat or panchayat union council is not qualified or has become

disqualified under Sections 22, 24, 25 or 26 and such person does not admit the allegation) or whenever any member is himself in doubt whether

or not he is not qualified or has become disqualified u/s 24, 25, or 26, such member or any other member may, and the executive authority or the

commissioner as the case may be shall, on the direction of the panchayat or panchayat union council or of the Inspector, apply to the prescribed

judicial authority whose decision shall be final.

We are unconcerned with Sections 22 and 24 of the Act in this enquiry as it is the disqualification contemplated by Section 25 that is relied on by

the second respondent to nullify the election of the petitioner. Section 25, so far as it is relevant, recites:

(1) ....

(2) A person shall be disqualified for election as a member, if, at the date of nomination or election he is-

(a) ....

(b)....

(c) interested in a subsisting contract made with, or any work being done for, the panchayat or the panchayat union council except as a shareholder

(other than a director) in a company.

No controversy is raised in this writ petition as to whether the contract subsists or not and the argument proceeded on the assumption that the

petitioner has incurred the disqualification within the contemplation of Section 25 of the Act.

It is apparent from Section 28 of the Act that the only persons who could avail themselves of the remedy are those mentioned therein, viz., the

successful candidate or other members or the executive authority or the commissioner. Secondly, the disqualification can be urged only if it subsists

on the date of the petition and it has no relation to a stage prior to the poll. Moreover the only power given to the judicial authority is to declare

that a person is or is not disqualified, and, it is not empowered to set aside the election or direct a fresh election to be held. So, this is a special

remedy accorded to a set of persons indicated in that section. It is also pertinent to note that there is no provision in Section 28 expressly providing

for adjudication of disputes relating to matters preceding the poll. Further Section 28, by itself, cannot enforce the disqualification. Consequently a

machinery for enforcement of the disqualification has to be devised by means or rules to be promulgated under the Act. This rule making power is

derived by the Government from Section 178 of the Act. That section empowers the Government to make Rules,. inter alia, for all matters relating

to electoral rolls or elections, not expressly-provided for in this Act, including deposits to be made by candidates standing for election, the

conditions under which such deposits may be forfeited, and the conduct of enquiries and the decision of disputes relating to electoral rolls or

elections. The Rules which pertain to the present enquiry are made under the last clause of Section 178(2)(i) of the Act.

It is Rule 11 of the Rules framed for decision of election disputes relating to panchayats that is relevant in the context of this petition. The

relevant portion of this rule reads:

If in the opinion of the Election Court-

* * * * * * *

(c) the result of the election has been materially affected by any irregularity in respect of a. nomination paper or by the improper reception or

refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the Rules made thereunder, the election of such,

returned candidate shall be void.

Rule 12, which has also a bearing in this enquiry, recites:

(1) At the conclusion of the inquiry, the Election Court shall declare whether the election of the returned candidate or candidates is void under

Rule 11.

(2) If the Election Court declares the election of the returned candidate or candidates void, it shall further pass an order either-

(a) declaring that any other party to the petition who has under these Rules claimed the seat-has been duly elected; or

(b) ordering a fresh election....

It is plain from these rules that any one interested in the purity of elections, viz, the electorate, or the rival candidate, can question the legality of

the elections. Unlike Section 28 of the Act the remedy given by these rules is a very wide one and. not restricted to persons connected with the

panchayat. The parties can debate a point whether the elections were held in conformity with the statutory requirements. Thus the scope of these

rules is different from that of Section 28 of the Act-The question whether a particular person was qualified to stand as a candidate and. whether

there was a proper election is the subject-matter of a petition under the rules. Under the rules extracted above the right of a person to offer himself

as a. candidate is put in issue whereas the only problem that poses itself for solution or for enquiry u/s 28 of the Act is whether a person can

continue to be a member. It is his status at the time of the filing of the petition that is to be taken into account and not at the time when he filed his

nomination u/s 28. It is pertinent to note that if the disqualification ceases to exist immediately after the election the election cannot be challenged

u/s 28 notwithstanding the fact that it suffered from disqualification at the time when he filed the nomination. It cannot therefore be postulated, that

there is essentially a conflict between Section 28 of the Act and the statutory rules. They concern themselves with different, aspects of the

disqualification and deal with different subjects.

There is ample authority for this view of ours. In J. Selvaranga Raju Vs. T. Doraiaswami Mudaliar, a person elected to the Saidapet

Municipality happened to be an. Honorary Magistrate in the Saidapet Bench Court at the time of his filing the nomination and was thus disqualified

u/s 49(2)(iv) of the District Municipalities Act. After the election the unsuccessful candidate presented a petition in the Court of the Subordinate

Judge, Chingleput, impugning the election on the ground of this disqualification. The question arose whether such a disqualification could be

considered in an election petition or whether the remedy provided by Section 51 of the Act had to be availed of by the aggrieved person. On

account of difference of opinion between Devadoss, J., in Mangala Goundqr v. Ayyathorai Mudaliar (1927) 55 M.L.J. 632 in which it was held

that no election petition lay under Rule II(c) of the Rules relating to disputes as to the validity of elections framed under the Madras District

Municipalities Act, since the expression ""election"" did not include nominations, and, Ramesam, J., and Curgenven, J., who took a contrary view,

the reference to a Full Bench became necessary.

The question to be answered by the Full Bench was formulated in these words:

Can disqualification u/s 49 or Section 50 of an elected candidate be a ground for a petition impunging the election under rule I and Rule II(c) of the

rules for the decision of disputes as to the validity of an election held under the Madras District Municipalities Act, 1920, or is the remedy confined

to that prescribed in Section 51 and Section 314 of the said Act.

It may be mentioned that rule I and Rule II(c) of the Rules which were framed by the Provincial Government u/s 303 of the District Municipalities

Act are in part material with the present rules. It is also worthy of note that Section 51 which authorises the judicial authority to pronounce upon

the disqualification of a Municipal Councillor is analogous to Section 28 of the Act which is the successor of Section 19 of the Madras Panchayats

Act, 1950. The disqualification within the connotation of Section 49 of the District Municipalities Act is similar to the one within the purview of

Section 25 of the Act.

The question was answered by the Full Bench in the affirmative. It was held by the Full Bench that a disqualification u/s 49 could be made a

ground of a petition under rule I and Rule II(c) of the Rules for decision of disputes relating to the Muncipalities. In the opinion of the learned

Judges Section 51 of the District Municipalities Act, which, as already observed, corresponds to Section 28 of the Act, did not operate as a bar to

the maintenance of an election petition. Coutts Trotter, C.J., remarked that Section 51 would apply only when there was an election of the

candidate as a councillor which was apparently valid on the face of it and it was inapplicable in the inchoate stage of the nomination which had not

resulted in at least something which purported to be an election. The view of Wallace, J., is in consonance with this rule. The learned Judge

observed:

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.

In other words, if the disqualification was not noticed and no objection was raised on that score, resort should be had to Section 51. But the

existence of Section 51 did not preclude an elector from raising in an election petition the matter of disqualification of an elected candidate.

Anantakrishna Ayyar, J., observed, to attract Section 51 the disqualification must arise after the election and that section could not apply to a stage

prior to that person having become a councillor. However, the ratio decidendi of his judgment was that the Legislature could not think of depriving

the voters or rival candidates of their right to attack the elections merely because some remedies were made available to councillors. The learned

Judge thought that such an interpretation would be doing injustice to voters or rival candidates, and that, the rule should be construed as providing

for the enforcement by persons themselves of rights conferred on them by statutes. This decision thus makes it abundently clear that Section 51 did

not stand in the way of rules being made for the adjudication of disputes relating to elections, and that there was really no conflict between Section

51 and rule I and rule II of the Rules.

Sri Venugopal seeks to distinguish the judgment of the Full Bench on the ground that that case dealt with the District Municipalities Act, the

provisions of which. Were not the same as those of the Madras Panchayats Act. To substantiate this distinction he cites to us the decision in

Panchayat Board of The Panchayat Board of Senbakkam Vs. S.M. Gengadaran and Others, . We are not persuaded that this case lends any

support to this contention. The Division Bench did not make any attempt to distinguish J. Selvaranga Raju Vs. T. Doraiaswami Mudaliar, on the

lines suggested by Sri Venugopal. The problem that posed itself for solution in the cited case was whether Section 19 of the Panchayats Act of

1950 could be resorted to by a President of a panchayat relying on a disqualification which subsisted at the time of the nomination. A petition filed

under Article 226 of the Constitution was allowed by Veeraswami, J., in the view that Section 19 would come into operation only in cases of

disqualification incurred after the election. In an appeal against his judgment the Division Bench expressed the opinion that recourse could be had

to Section 19 notwithstanding the fact that the disqualification was in existence even at the time of the nomination. They did not agree with

Veeraswami, J., that the expression "" is not qualified "" had not the same connotation as ""is disqualified."" They felt that the two expressions did not

connote two different ideas and that the words "" is not qualified "" and the Words "" is disqualified "" meant the same thing. The reason why the

learned Judges said that Section 19 could be invoked was that no objection was raised to the election, the disqualification not having been

discovered at the relevant time. They relied on the dictum of Wallace, J., that Section 51 applied to cases where the election had gone through

without challenge and something had occurred thereafter which raised doubts about the qualification of some sitting Councillor. The learned Judges

said:

After making the above observations, the learned Judges of the Full Bench considered the question whether there was any conflict between the

jurisdiction Conferred on the District Judge u/s 51 of the District Municipalities Act, and the jurisdiction conferred on the Election Court when the

election is challenged by the rival candidates in an election petition. They emphasised that there was really no conflict because Section 51 applies to

the stage after the elections has gone through without challenge whereas the jurisdiction of the Election Court relates to a challenge of the election

itself by a voter or a candidate.

It is clear from this passage that the learned Judges were inclined to think that the rules were quite consistent with Section 19 and that the question

of conflict did not arise at all. We searched in vain for an observation or for a passage in that judgment to indicate that there was any repugnancy

between Section 19, which is the predecessor of Section 29, and the rules framed by the State Government u/s 178 which are under challenge in

this case. On the contrary, they seemed to have proceeded on the assumption that there was harmony between the two.

In Writ Petition Nos. 763 and 733 of 1953 a Division Bench of the Andhra High Court took the view that if a nomination paper was

improperly received or refused for the reason that the candidate was not qualified or had become disqualified within the meaning of Sections 13 to

16 which correspond to Sections 22 to 25 of the Madras Panchayats Act of 1958, it was a defect during the process of election and therefore that

question fell to be considered only in an election petition, whereas Section 19 provided for the decision of the question of the disqualification of a

person who had been elected member.

This view was adhered to by them in B. Srikantaiah v. Election Officer (1956) A. W.R. 1161 : AIR 1957 A.P. 683. This case bore on the

interpretation of Section 51 of the District Municipalities Act on a question similar to the one that presented itself in J. Selvaranga Raju Vs. T.

Doraiaswami Mudaliar, and they held that the rules framed under the District Municipalities Act providing for decision of disputes were intra vires

since there was no express provision in the Act as to how any disqualification under Sections 48 and 49 were to be enforced. No decision which

has taken an opposite view has been brought to our notice.

Sri Venugopal thinks that the judgment of the Supreme Court in Civil Appeal No. 538 of 1964 lends support to the theory propounded by

him. He draws our attention to the tests propounded by the Supreme Court in determining whether a certain provision of a State law was

repugnant to the law made by Parliament.

Repugnancy between two statutes may thus be ascertained on the basis of the following three principles.

(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the law made by the State Legislature -occupy the same field.

Applying these tests to the question whether the provisions of Section 64-A of the Motor Vehicles Act, as introduced by the Motor Vehicles

(Bihar Amendment) Act, 1949, was inconsistent with Section 64-A of the Central Act they held that Section 64-A of the Bihar Act was not

repugnant to the corresponding section of the Central Act and as such it was not void. They added that the section was not repealed by the

Central Act and that its scope was limited only to the extent that revisions against the orders of the Regional Transport Authority, which were not

appealed, had to be preferred to the State Transport Authority as such orders could be agitated only u/s 64-A of the Central Act. They read both

the provisions so as to harmonies them and not to read a repugnancy or inconsistency between them. In our opinion, this pronouncement of the

Supreme Court, far from advancing the petitioner''s position, furnishes an answer to the contention-raised by him. Be that as it may, we think that

no assistance can be derived by the petitioner from this ruling.

We are firmly of opinion that neither the statutory provisions nor the decided cases lend any sustenance to the arguments advanced by learned

Counsel for the petitioner. The decision of Srinivasan, J., in Ramanathan v. Muthukrishnan ILR (1965) Mad. 107 is in consonance with the

principle enunciated above.

The writ petition is dismissed with costs of the Government. Additional Government Pleader''s fee Rs. 150.