L. RM. L. Ramanathan Chettiar vs Muthu Krishnan and Others

Srinivasan, J.—This is a petition under Article 226 praying that the order of the election commissioner may he quashed as affected by errors

of law.

The Petitioner filed his nomination paper for election as member of the Nerukuppai Panchayat on 18th April 1962. The first Respondent also

contested the election. Prior to his filing nomination papers, the Petitioner had obtained a No Arrear certificate from the Panchayat Board and

produced it before the election authority. At the election, he was declared duly elected. The Respondent carried the matter by way of an election

petition disputing the election of the Petitioner on the ground that he was in arrears of tax and was accordingly disqualified u/s 25(2)(g) of Act

XXXV of 1958. According to the Petitioner he is a half owner of Door No. 2 in Street No. 66 in Ward No. 1. There was a partition between the

Petitioner and his cousin, one Lakshmanan Chettiar, over 25 years ago. From that date onwards, the Petitioner claims that he has been paying his

half share of the tax and that the panchayat has been accepting such payment from the Petitioner. When the matter came before the election

commissioner, the election commissioner wrongly held that the Petitioner was in arrears of tax despite the fact that a bill or notice had not been

duly served upon him. It is stated by the Petitioner that the election commissioner had specifically found that there was no personal service upon

the Petitioner. The election commissioner also failed to give due weight to the No Arrear certificate granted by the executive officer of the

panchayat board. He also failed to note that the panchayat Board had been accepting half the amount of tax from the Petitioner and the claim

which the panchayat board had against the Petitioner was only in respect of that half amount of tax. The view of the election commissioner that

there had been a proper service of the notice as required by law is claimed to be erroneous. There was no evidence to establish any such service.

According to the Petitioner, the provision of law and the rules framed thereunder have been improperly applied by the election commissioner and

his order is liable to be quashed.

While setting aside the election of the Petitioner the election commissioner however took the view that the facts disclosed did not warrant the

declaration that the first Respondent could be declared to be duly elected. He accordingly ordered a fresh election.

In the counter-affidavit of the first Respondent, it is claimed that all the contentions of the Petitioner were duly considered by the election

commissioner and the finding that there was service of the bill or notice is one of fact which is rested upon evidence and cannot be challenged in

this proceeding. It is claimed that the Petitioner is affected by the disqualification u/s 25(2)(g). The Respondent also claims that the direction of the

election commissioner ordering a fresh election is erroneous and that while the writ petition should be dismissed there should nevertheless be a

variation of the order declaring the first Respondent to be the successful candidate.

A supplemental ground has been taken by the Petitioner. It is shortly that an election petition does not lie at all and that the matter is one which

should have been adjudicated u/s 28 of the Act XXXV of 1958.

u/s 25(2)(g) of the Act, a person shall be disqualified for election as a member if, at the time of nomination or election, he is

in arrears of any kind due by him (otherwise than in a fiduciary capacity) to the panchayat or the panchayat union council, 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.

This provision prescribes a disqualification, and before the disqualification can attach, two conditions have to be fulfilled. One is that the person

should be in arrears of any kind due to the panchayat or the panchayat union council up to and inclusive of the previous year, and the second is that

in respect of that arrears, a bill or notice should have been served upon the person and the time specified in that notice for payment should have

expired. It is clear, therefore, that the mere fact that a person is in arrears of tax is not, sufficient to disqualify a person. It is further necessary that

he should have been served with a notice calling upon him to pay the amount within the time specified and that the arrears should continue unpaid

even after the expiry of the period stipulated. In the present case, the following facts are not in dispute. Firstly, the Petitioner is the joint owner

along with his cousin of the premises mentioned earlier. Whether or not there was a partition between him and his cousin, it is not denied that the

premises continue to stand in the records of the municipality in the joint names of these two persons. The municipality is, therefore, entitled to

demand the payment of tax from the one or the other or both of these persons. It may be that a partial payment has been accepted from the

Petitioner by the municipality, but that does not mean that the municipality cannot lawfully claim to recover the entire amount of the tax from the

Petitioner. Mr. V.V. Baghavan, learned Counsel for the Petitioner, does not seriously dispute the proposition that the Petitioner is jointly and

severally liable for the entirety of the tax and his payment of the half share of the tax is not sufficient to absolve him from the liability for the other

half of the tax. Unless and until the premises or a part thereof IB separately registered in the records of the Municipality in the appropriate manner,

the Petitioner cannot say that by reason of the partition in his family he is liable only in respect of half the quantum of the tax.

That the executive officer gave a No Arrear certificate is certainly of no consequence in the light of what has been stated above. The Petitioner

was undoubtedly in arrears on the date of the nomination and of the election.

That does not dispose of the question. It has further to be proved that in respect of the arrears a notice had been served upon the Petitioner in

the manner provided by the law and that he had failed to make the payment in accordance with that notice. The evidence with regard to the service

of the notice has been dealt with by the election commissioner in paragraph 8 of his judgment. Exhibits A-5 to A-10 are the house-tax receipts

kept in the book of the panchayat board. These receipts are prepared at the time of the preparation of the demand notices and as and when the

tax is paid, these receipts are detached and given to the tax-payer. The demand notices are the other halves of the receipts. In the receipt, at the

time when the demand notice is served upon a tax-payer, entries are made in the relevant columns showing the date and the manner of the services

of the demand notice. In exhibits A-5 to A-10, some person presumably the bill collector purports to have recorded that demand notices for the

period between 1959 and 1962 had been served. The entries in exhibits A-5 and A-6 show that for the second half year of 1959 and for the first

half year of 1960, the demand notices had been served on the mother of one L. RM. L. RM., that is the mother of the Petitioner. The entries in

exhibits A-7 and A-8 relevant to the second half year of 1960 and the first half year of 1961 purport to have been served on the wife of

Lakshmanan Chettiar. The entries in exhibits A-9 and A-10 show that for the two later half years, the demand notice was apparently served on

Lakshmanan Chettiar. The point to note in connection with these entries is that there is no endorsement or signature by the party who was served.

They only record the notes made by the bill collector himself. The election commissioner found that none of the above notices had been served on

the Petitioner in person, but proceeded to observe:

But the first Respondent (Petitioner) herein is not in a position to state whether his mother, his cousin brother and his cousin brother''s wife have

been served with any demand notice or not. But the first Respondent would state that his mother is not living with him for the past four or fire years

on account of a family dispute and this is corroborated by P.W. 2, the present executive officer. But it is admitted that Lakshmanan Chettiar and

his wife are living in the same house bearing D. No. 2....

The election commissioner then proceeded to consider the relevant rules which lay down the manner of service of notices. In so far as the

service on the mother of the Petitioner was concerned, the election commissioner found that since the mother was not living in the premises in

question, even if there was service upon her that would not be service upon the tax-payer, whether it is the Petitioner or his cousin. But in respect

of the other notices, the election commissioner stated:

But all other notices have been served either on the other owner Lakshmanan Chettiar or on the wife of the said Lakshmanan Chettiar. According

to Rule 8, it is sufficient to serve the notice on any one of the joint owners.

While Rule 8 undoubtedly says that a service on one of the joint owners is service upon all the owners and to that extent the observation of the

election commissioner is correct, the question still remains whether there was a service at all upon any of the joint owners. As I have stated, there

was no acknowledgment by way of signature or otherwise by the person served. Rule 7 of the rules framed under the Act prescribes the mode of

service and authorizes service by:

(1) tender of notice in person ;

(2) leaving the notice at the last known place of business or residence or by tendering notice on some adult member or servant of the family ;

(3) issue of the notice by registered post ; and

(4) if none of the above modes are available, service by affixture at the place of residence or business.

The executive officer who gave evidence was only able to say with regard to the entries found upon the receipts that some bill collector had

made these entries. Who the bill collector is not known, nor was any bill collector examined to prove the entry or the actual mode of service. It

was argued before the election commissioner that the bill collector made these entries in the usual course of his official duties and, therefore, proof

of service upon Lakshmanan Chettiar or his wife should be held to be established thereby. This contention was accepted by the election

commissioner relying upon a decision of the Calcutta High Court in Gaibanda Loan Office Ltd. v. Saiyadunnessa Khatun ILR (1943) 1 Cal. 22. In

that case, the question that had to be considered was whether a notice u/s 7 of the Public Demands Recovery Act had been served or not.

Reliance to establish service was made upon an entry in the order sheet by the certificate officer. The Calcutta High Court decided that the entry

would be evidence of the fact of service. It was no doubt the only item of evidence, but the learned judges observed that whether from that item

the Court would be justified in holding the factum of service would depend upon the facts and circumstances of the particular case.

That decision, however, would not appear to apply. In that case, the certificate officer was obviously discharging certain duties laid upon him

by the Public Demand Recovery Act and an entry in the order sheet of the certificate officer was held to be admissible u/s 35 of the Evidence Act.

It does not seem to be correct to equate a proceeding of that description to an entry made by the bill collector. The bill collector was not

performing a statutory duty. No doubt, he was performing an official duty. There is a world of difference between the two and to say that the entry

made by the bill collector would form part of the public record seems to me to be wholly inappropriate.

A decision of the Madras High Court was also cited before the election commissioner where it was pointed out that when the fact of service of

notice by affixture by a process server was challenged, the process server should have been examined giving the other side an opportunity to

cross-examine. A bill collector occupies no higher place than a process-server in so far as the discharge of their respective duties in the matter of

service of notices are concerned. The election commissioner thought that the above ruling would not apply. It seems to me that he has misapplied

the principles of law. His observation that the Petitioner is not able to deny that Lakshmanan Chettiar or his wife was served really casts the onus

of proof of non-service upon the Petitioner. There is no doubt that unless the factum of service is proved, the attendant disqualification specified in

Section 25(2)(g) of the Act cannot attach. In the present case, there was no such evidence at all and the presumption which the election

commissioner made as to the effect of the entry made by the bill collector is obviously an error of law.

There is no doubt that the requirements of the section have not been fulfilled. The order of the election commissioner thus stands vitiated by an

error of law and is liable to be quashed.

In the view that I have taken, it is not necessary to consider the supple, mental ground raised by Mr. V.V. Raghavan, learned Counsel for the

Petitioner, that the election petition itself is not maintainable and that resort should have been had u/s 28 of Act XXXV of 1958. Since the point

has been raised, I may briefly express my view thereon. Section 28 of the Act provides for the determination of questions relating to

disqualification by the prescribed judicial authority. It reads thus:

Whenever it is alleged that any person who has been elected as a 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.

Mr. V.V. Raghavan points out that the disqualification set out in Section 25 of the Act is also a matter that can be canvassed before the

prescribed judicial authority. Since the Statute has, therefore, provided in Section 28 a method of determination of any dispute regarding a

qualification or a disqualification, he claims that an election petition is not maintainable. That the rules framed u/s 178 of the Act provide for the

adjudication of election disputes by the election commissioner is not denied. u/s 178(2)(ii),

the Government may make rules as to all matters relating to electoral rolls or elections, not expressly provided for in this Act...and the conduct of

inquiries and the decision of disputes relating to electoral rolls or elections.

In exercise of this power rules have been framed for the decision of election disputes relating to panchayats. Learned Counsel states that this

rule making power is available only in respect of matters not expressly provided for in the Act, and his contention is that since a dispute with regard

to the disqualification u/s 25 is mentioned in Section 28 of the Act, it is only the prescribed judicial authority under that Act that can deal with the

matter and not an election commissioner by way of an election petition. At first sight the contention appears to have some substance, but a closer

scrutiny inclines me to disagree with the contention. It will be noticed that the only persons who are competent to agitate the question of a

disqualification by resort to the machinery provided by Section 28 are the member himself, who is alleged to have sustained the disqualification, or

any other member of the panchayat, or the panchayat union council, or the executive authority, or the commissioner. It is only these persons that

have the right to resort to the prescribed judicial authority. But in a case where a defeated candidate challenges the validity of the election, the

defeated candidate not being one of the persons specified in Section 28 cannot obviously approach the prescribed judicial authority. This is clearly

a case where a challenge of the election by a defeated candidate is not expressly provided for in the Act, that is to say, by Section 28. It should

follow, therefore, that the Government have the power u/s 178(2) to frame rules for the decision of election disputes. Otherwise, it may very well

be that if neither the member nor any other member of the panchayat raises the question of the disqualification, a defeated candidate at the election

will have no remedy and the dispute itself will remain undetermined, with the result that a disqualified or an unqualified candidate would continue to

function as a member of the panchayat. The contention that Section 28 alone should have been resorted to cannot in the circumstances be

accepted.

The rule is made absolute. There will be no order as to costs.