Koman Nambiar vs Narayanan Nambiar

Koshi, C. J.

This petition is directed against an order of the District Munsiff of Taliparamba in his capacity as Election Commissioner under the Madras Village Panchayats Act, 1950 (Madras Act X of 1950). At the election held on 12-10-1955 for the office of the President for the Panchayat Board in the Pariyaram Amsom, the respondent herein was duly declared elected, but the validity of his election was challenged by the defeated candidate before the learned Election Commissioner in O. P. No. 89 of 1955. Though more than two candidates were nominated to stand for election, the ultimate contest was between the respondent and the petitioner in the said Original Petition, the other nominees having withdrawn their candidature. The ground on which the election was challenged was that the returned candidate (the respondent) was a disqualified person within the meaning of Section 16 (2) (b) of the Madras Village Panchayats Act, X of 1950 in as much as having got himself adjudicated as insolvent, he allowed his application for discharge to be dismissed for non-prosecution and the adjudication annulled. According to the defeated candidate the respondent was therefore an ''undischarged insolvent'' on the material dates, namely, the date of the nomination and the date of the election. On the ground of the said disqualification the validity of the returned candidate''s nomination itself was challenged by the rival candidate before the Election Officer, but the objection was repelled and as the result of the voting that followed the respondent was declared elected. In the election petition filed by the defeated candidate he not only sought to have the returned candidate''s election set aside, but also claimed the office of the President for himself on the ground that as the returned candidate was a disqualified person, his nomination ought to have been rejected by the Election Officer and as the only duly nominated candidate who had not withdrawn from contest, he (the petitioner) ought to have been declared elected at the stage itself without a poll. The learned Election Commissioner found that no disqualification as alleged remained attached to the returned candidate on the date of the nomination or the election and that the petition was therefore unsustainable. The order dismissing the petition (O. P. No. 89 of 1955) was made by the Election Commissioner on 27-2-1956 and soon afterwards on 26-4-1956 this revision was filed by the petitioner therein before the Madras High Court. That Court admitted the revision on 5-5-1956, but the revision petitioner died on 26-5-1956. The Court being appraised of that fact the revision petition was ''adjourned for three weeks for steps''. This was one 10-8-1956. Then on 16-8-1956 one of the candidates for election who had withdrawn his candidature filed a petition (C. M. P. No. 7239 of 1956) seeking to get himself impleaded in place of the deceased petitioner. The Madras High Court ordered notice on that application on 14-9-1956 and thereafter, as a result of the States Reorganisation the case was transferred to the file of this Court.

In this Court C. M. P. No. 7239 of 1956 (M) came up for hearing before Varadaraja Iyengar, J. and the respondent opposed the petition on the ground that the right to question the election did not survive the death of the original petitioner. Without prejudice to this contention the learned Judge allowed the petitioner to be impleaded. As the main petition, that is, C. R. P. No. 888 of 1956 (M), though filed as a revision invoked not only the High Court''s powers u/s 115, Civil Procedure Code, but also those under Article 227 of the Constitution the two petitions since came up for hearing before this Division Bench. Before us the respondent''s learned counsel, Mr. V. P. Gopalan Nambiar, first took up the preliminary objection that the petitioner in C. M. P. No. 7239 of 1956 had no right or locus standi to be impleaded. As Varadaraja Iyengar, J. left that question open we have to deal with it, as also with the merits of the main petition in case we do not uphold the objection. The preliminary objection has of course to be dealt with first.

In support of the preliminary point Mr. Gopalan Nambiar invited our attention to Rule 9 of the Panchayat Election Rules which reads:-

''An election petition shall abate on the death of a sole petitioner or of the survivior 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 rule can have no bearing on the proceeding before us u/s 115, CPC and Article 227 (Constitution) unless it can be treated as a continuation of the election petition. Regard being had to the provision in Rule 12 (3) (Panchayat Rules) that the order of the Election Commissioner upholding or setting aside an election (Rule 12 (1)) or declaring any other party to the petition who has claimed the seat under those rules duly elected (Rule 12 (2) (a) ) or ordering a fresh election (Rule 12 (2) (b) ) shall be final, it is well nigh impossible to hold that the present proceeding should be treated as a continuation of the election petition. As pointed out by Chandra Reddi, J. in Tirapathi Rayudu v Venkateswarlu - AIR 1954 And 36 there is even room to doubt whether Rule 9 is consistent with the provisions in some other rules, particularly Rules 1 and 7, the former providing inter alia that any candidate or elector has the right to call in question an election by means of a petition before a duly constituted authority and the latter that an application for the withdrawal of an election petition shall, among other things, be notified in the manner specified in Rule 6. Unless some other person who was competent to file a petition in the first instance is entitled to seek to carry on the petition sought to be withdrawn, it is difficult to comprehend the purpose of the publication enjoined by the rule. Be that as it may, this Court exercising the jurisdiction conferred on it u/s 115, CPC and Article 227 of the Constitution do not have to regulate a proceeding before it by the provisions in the Rules under reference. It is a well established rule that where a legal right is in dispute and the ordinary Courts of the country are seized of such disputes the Courts are governed by the ordinary rules of procedure applicable thereto see Adaikappa v Chandrasekhara - A. I. R. 1948 Privy Council 12. The contention that with the death of the petitioner the present proceeding automatically terminated cannot therefore be accepted. The Andhra case cited is authority for the view that in a revision, whether u/s 115, CPC or Article 227 of the Constitution, when a party to the proceeding dies the Court can exercise its inherent jurisdiction to allow substitution to be made. Recourse was there made to Section 151, Civil Procedure Code. That case no doubt related to a proceeding seeking to vacate an order of the Election Commissioner annulling an election, but to our minds that cannot affect the present question inasmuch as the revision has already been admitted and the Court then is in duty bound to see whether the proceeding before the concerned Subordinate Tribunal has been rightly or erroneously dealt with. We, therefore, while holding that it is permissible in a proceeding like this to allow a competent person to come in place of a deceased petitioner, proceed to consider whether the person who has come forward is a competent person.

Here again the case in Tirapati Rayudu v Venkataswarlu is authority for the view that an elector can be allowed to carry on a revision against an order of the Election Commissioner initiated by a person who happens to die pending the proceeding. Incidentally reference has already been made to the provisions in Rule 1 and Rule 7 and the decision of Chandra Reddi, J. referred to is one based on the same rules. What that learned Judge said there about the competency of an elector or a rival candidate to come in may usefully be quoted here:-

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 recognized 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 Art. 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-''Parameswaran Muppu v Narayanan Namboodri'', AIR 1917 Mad. 389. There a suit was brought under S. 92, Civil P. C., 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 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.

Agreeing with the above view we hold that the petitioner in C. M. P. No. 7239 of 1956 has rightly been allowed to come in place of the deceased petitioner in C. R. P. No. 888 of 1956.

We have next to deal with the revision petition on the merits. The fact on which disqualification for election to the office of the President was sought to be brought home to the respondent are not in controversy. In I. P. No. 13 of 1934, on the file of the Tellichery Subordinate Judge''s Court, the respondent was adjudicated an insolvent and in I. A. No. 483 of 1935 he applied to that court for discharge. After the official receiver submitted his report in the matter, the respondent got one or two adjournments, but on 1-9-1936 to which date the I. A. (483 of 1935) stood adjourned for final hearing he did not appear and his advocate reported that he had no instructions. The court therefore annulled the adjudication and directed that the assets of the insolvent (respondent) shall revert to him. The respondent was also directed to pay the costs of the contesting respondents. This order is in terms of Section 43 (1) of the Provincial Insolvency Act, 1920. Section 43 (1) reads:-

If the debtor does not appear on the day fixed for hearing his application for discharge or on such subsequent day as the Court may direct, or if the debtor does not apply for an order of discharge within the period specified by the Court, the Court may annual the order of adjudication or make such other order as it may think fit and if the adjudication is so annulled, the provisions of Section 37 shall apply.

Sub Section (2) is not very relevant for the purpose of this revision; it provides inter alia that the immunity which an adjudicated insolvent has from being personally proceeded against for his debts ceases when an order u/s 43 (1) is passed. Section 37 of the Provincial Insolvency Act to which reference is made in Section 42(1) so far as relevant states that on annulment the property of the debtor who was adjudged insolvent shall vest in such person as the Court may appoint, or in default of any such appointment, shall revert to the debtor to the extent of his right or interest therein on such conditions (if any) as the Court may, by order in writing, declare. Following a decision of the Madras High Court reported in Subbiah v Ramasami-A. I. R. 1954 Madras 604 (F. B.)- the learned Election Commissioner held that the consequence of annulling the order of adjudication is to wipe out altogether the insolvency and its effect, except to the limited extent preserved u/s 37. No restriction or condition contemplated by the said Section was imposed by the order annulling the adjudication of the respondent and the Election Commissioner therefore took the view that on the date of his nomination or election the respondent was not an ''undischarged insolvent'' within the meaning of Section 16 (2) (b) of the Madras Village Panchayats Act, 1950. Section 16 (2) provides that:-

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

(a)....

(b) an applicant to be adjudicated an insolvent or an undischarged insolvent;

Apart from this, Section 73 of the Provincial Insolvency Act, 1920 contains provisions regarding the disqualifications of insolvents. To quote only the relevant portion, that Section reads:-

73 (1) Where a debtor is adjudged or re-adjudged insolvent under this Act, he shall, subject to the provisions of this section, be disqualified from-

(a)....

(b) being elected to any office of any local authority where the appointment to such office is by election or holding or exercising any such office to which no salary is attached; and

(c) being elected or sitting or voting as member of any local authority.

(2) The disqualifications which an insolvent is subject to under this section shall be removed, and shall cease if-

(a) the order of adjudication is annulled under S. 35, or

(b) he obtains from the Court an order of discharge, whether absolute or conditional, with a certificate that his insolvency was caused by misfortune without any misconduct on his part.

3....

From the foregoing it is clear that once a person has been adjudicated insolvent, the disqualification attaching to him for election to any office of any local authority and being elected or sitting as a member of any local authority would or can be removed only as provided in clause (a) or (b) of Sub-section (2). The annulment here was not u/s 35 as required by clause (a) of the Sub-section and admittedly there is no order of discharge, absolute or conditional, much less any certificate from the Insolvency Court as required by the latter part of clause (b). The respondent had been adjudged insolvent, he has not been discharged either absolutely or conditionally and the annulment of the adjudication that took place with respect to him was not u/s 35, but u/s 43, He is therefore an ''undischarged insolvent'' within the meaning of Section 16 (2) (b) of the Village Panchayats Act. u/s 37 of the Provincial Insolvency Act when an adjudication is annulled u/s 43 the insolvency is wiped out so far as the property right of the insolvent is concerned and it also restores back to the creditors the right to proceed against the person of the insolvent, but such annulment does not restore back to him his civic or citizenship rights specified in the provisions of law referred to. Section 73 is clear to that effect. This aspect has been lost sight of by the learned Election Commissioner. Indeed he makes no reference to the fact that the annulment of the adjudication was u/s 43 and not u/s 35. The respondent was therefore on the date of nomination, as also on the date of the election an ''undischarged insolvent''. The decision in Subbaiah v Ramasami is no authority to the contra. That decision was concerned only with the right to the insolvent''s property.

It would shock the Court''s conscience to hold that a person whose adjudication has been annulled u/s 43 will so far as the civic or citizenship rights are concerned be in a better position that a person whose application for adjudication is pending or whose application for discharge is pending or to whom an order for discharge, absolute or conditional, has been granted without a certificate as contemplated by the latter part of Section 73 (2) (b). To hold so would, in our opinion, be a mockery of justice. Indeed that is the view which Mack, J. of the Madras High Court took in Hindu Religious Endowments Board v Nallathambi Ayyaswami - AIR 1954 Mad 88.

In that case the learned Judge was dealing with the case of an annulment u/s 41 of the Presidency Towns Insolvency Act which corresponds in substance to Section 43 of the Provincial Insolvency Act. There the question was whether a particular person was disqualified u/s 54 (1) (b) of the Madras Hindu Religious Endowments Act, 1927 (Act II of 1927) to hold the office of a hereditary trustee. Section 54 (1) (b) of the said Act provided that "a non-hereditary trustee shall cease to hold his office if he applies to be adjudicated or is adjudicated a bankrupt or insolvent;.." Sub-section (3) made the said provision applicable to hereditary trustees. Certain observations which Mack, J. made in that case may usefully be quoted here:-

Normally the disability of a bankrupt or an insolvent would cease to exist on his obtaining an honorable discharge in the event of the annulment of his adjudication on composition with his creditors or u/s 21, Presidency Towns Insolvency Act corresponding to Section 35, Provincial Insolvency Act, if he satisfies the Court that he ought not to have been adjudged an insolvent or where it has been proved that he has paid all his debts in full. Most unfortunately, the Insolvency Act uses the same word "annulment" to include cancellation of the adjudication on both honorable grounds and also on very dishonorable grounds, namely the failure of the insolvent to appear before the Insolvency Court at all and stand an examination or even to apply for his discharge. In the latter case, the adjudication is annulled u/s 41, Presidency Towns Insolvency Act primarily by way of a penalty and punishment to the insolvent who is for breach of this duty imposed upon him under the Act, exposed to ordinary process in execution at the hands of his decree-holders.

It is therefore not possible to hold that an annulment of an adjudication u/s 41 is tantamount to removal of a disability and does not continue to be a disqualification contemplated by S. 54 (1) (b) Madras Hindu Religious Endowments Act. I consider it very irregular, to say the least of it, in this view of annulment u/s 41, Presidency Towns Insolvency Act, for the Board ever to appoint as a hereditary trustee a person who has been adjudicated an insolvent and whose adjudication has been annulled because he has not performed his elementary obligation under the Act of even applying for his discharge within the time prescribed. He is really in a worse position than an undischarged insolvent.

We fully concur with the above view. The position of the respondent herein is not any the better. Accordingly we hold that the learned Election Commissioner went wrong in dismissing the petition to set aside the respondent''s election for the office of the President of the Pariyaram Panchayat. This revision is therefore allowed and the Election Commissioner''s order is set aside. The respondent''s election for the office of President is declared void and a re-election has to be held to fill the vacant place. As the rival candidate is no more, the question of declaring him elected does not arise. A copy of this order will be communicated to the Executive Authority of the Panchayat concerned and the Election Authority. It is for them to take action to prevent the respondent from sitting or voting as a member of the Panchayat. O. P. No. 89 of 1955 confined itself to the election to the office of the president.

The present petitioner on record came forward only at a late stage in the proceeding. All the expenses in connection with the petition before the Election Commissioner and a substantial portion of the costs in the High Court must have been incurred by the deceased petitioner and we therefore make no order for costs here in favor of present petitioner.

Order accordingly.