K. Mohammad Kasim vs S.K. Siddhu Chettiar and others

Veeraswami, C.J.—The appeal arises from an order of Palaniswami, J. by which he quashed an order of the Election Commissioner who

set aside the election of the first respondent on an election petition relating to ward No. 19 of the Ootacamund Municipality. Both the appellant and

the first respondent each secured 264 votes. The first respondent was declared elected as a result of casting of lots on 27th April, 1969. The

appellant filed an election petition before the Vacation Judge, Coimbatore, on 12th May, 1969 under S. 51 of the Madras District Municipalities

Act, 1920 read with the relevant rules asking to set aside the election of the first respondent and to declare him as duly elected. There were several

objections raised which were all overruled, with the result that the election petition was allowed and the appellant was declared as duly elected.

One of the objections was that the election petition having been initiated before the Vacation Civil Judge, Coimbatore, and subsequently

transferred to the Subordinate Judge, Ootacamund, it was totally without jurisdiction and it should be dismissed. The Election Commission

declined to accept the objection with the result we mentioned above. The first respondent, thereafter moved under Art. 226 of the Constitution and

successfully. Palaniswamy, J. accepted the objection as to jurisdiction. Though this view in itself would have sufficed to dispose of the writ petition

in favour of the first respondent, he nevertheless went into the question of impersonation and found that too for the first respondent. It seems to us

that Palaniswamy, J. took the correct view on the question of jurisdiction. Under R. 1 (2) of the Rules for decision of disputes as to validity of

elections held under the Madras District Municipalities Act, the election court shall be the Subordinate Judge having territorial jurisdiction over the

Municipal area Sub-R. (3) of this rule specifically makes it clear that either a Subordinate Judge or District Judge exercising jurisdiction under the

Rules acts as persona designata and not in his capacity as a court over which he presides. S. 30 of the Madras Civil Courts Act empowers the

High Court to permit civil courts under its control to adjourn from time to time for periods not exceeding in the aggregate the specified period in

each year. The following provisions of the section provide that the State Government, notwithstanding anything contained in the Act or in the Code

of Civil Procedure, 1908, but in consultation with the High Court, appoint for the duration of the adjournment of any District Court in summer a

Subordinate Judge for such District Court as Vacation Civil Judge and the Civil Judge shall have the same local limits of the jurisdiction as those of

the District Court. Under these provisions the jurisdiction of the Vacation Civil Judge shall extend to all suits, appeals and other proceedings

pending in, or cognisable by any civil court in the District concerned when such court is adjourned for summer vacation. On the reopening of the

District Court, a Subordinate Judge''s court or District Munsif''s Court after the summer vacation, the suits referable to those courts shall stand

transferred to them. It will be clear from the provisions of Sec. 30 that it does not deal with officers appointed persona designata but with

subordinate courts from the level of the District Court downwards and that provides for a Vacation Civil Judge to act during the vacation, whose

juristion shall be the same as that of the District Court in respect of which he has been appointed as Vacation Civil Judge. We cannot, therefore,

treat the Vacation Civil Judge, Coimbatore, as a Subordinate Judge acting as persona designata. The Subordinate Judge who functions as an

election court, though the nature of the dispute it may deal with, may be described as civil in character, is not a court under the CPC and also for

the purpose of Sec. 30. The election petition under the Rules aforesaid can only lie to the Subordinate Judge having territorial jurisdiction and not

to his court. That being the case, the Vacation Civil Judge of Coimbatore had no jurisdiction to entertain the election petition and it would follow

necessarily that it had no jurisdiction to transfer a petition which it had no jurisdiction initially to receive. Sub-rule (1) of Rule 1 requires that an

election petition be presented in accordance with the Rules to an election court by any candidate or elector against the candidate who has been

declared elected. Apart from the fact that the Vacation Civil Judge had no jurisdiction to receive the election petition, Sec. 30 (6) of the Madras

Civil Courts Act will be totally unavailing for transferring that petition to the Subordinate Judge of Ootacamund. The test of the jurisdiction of the

Vacation court to try the petition is its valid presentation. The question is not one of its competency to try the election petition. The point, therefore,

is whether the proceeding has been validly initiated before it, and if it has not been, then the election court has no power to deal with it. Sub-rule

(1) of rule 1 lays down the specific manner in which an election petition should be initiated and by whom and to whom it should be presented. It is

a basic requisite for a valid exercise of the jurisdiction of the election court that the requirements of sub-rule (1) of rule are to be complied with. If

an election petition was initiated improperly in a wrong court, its transfer either by operation of law or by an order of the former court to an officer

having jurisdiction will not confer on the latter the jurisdiction to deal with it, as the presentation initially was null and void which vitiates the

proceedings throughout.

The principle that if a proceeding is illegally initiated it remains to be illegal not with standing its transfer to the forum having jurisdiction, has been

well established since Ledgard v. Bull 9 All. 191 P.C. In that case it was pointed out that the first and an essential step in the maintenance of a suit

is its due institution and if initially the institution in a particular forum is vitiated as being illegal, the transference of the suit therefrom to the right

Court is equally incompetent. The fact that the transferee court is one which is seized of proper jurisdiction will make no difference to the invalidity

of the transferred proceeding as it was improperly initiated in a wrong forum. This principle has been followed in Asst. Sessions Judge, North

Arcot v. Ramammal 36 Mad. 387, A Pleader, In re. ILR 1940 Mad. 433, Singara Mudaliar v. Govindasami Chetti 54 M.L.J. 145, and in Sankar

v. Buvanambal Ammal (1971) 1 M.L.J. 23. It is, however, contended for the appellant that on the principle of Ratnam Pillai v. Sellappa Reddiar

(1963) 2 M.L.J. 381 the election petition must be regarded as having been validly presented in the election court, namely, the Subordinate Judge

Ootacamund. What was held in that case was that it would be competent for a person presenting an election petition under the Madras Panchayats

Act, 1958, to do so in the office of the Election Commissioner, and that it was not obligatory on him to present it to the Election Commissioner

personally. But that is not the point. If the election petition had been presented to the court of the Subordinate Judge, Ootacamund, the appellant

might well rely on that decision. But here the filing was in a wrong forum altogether which has no jurisdiction to deal with it. We do not think that

Hiralal v. Kalinath (1963) 2 M.L.J. 381, is of any assistance to the appellant. The appeal is dismissed with costs. Counsel''s fee Rs. 100.