L. Rm. L. Ramanathan Chettiar vs Muthukrishnan and another

Srinivasan, J.—This is a petition Under Art. 226 praying that the order of the Election Commissioner may be 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 suit. 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 under S. 25 (2) (g) of Act XXXV of 1958. According to the petitioner he is a half owner of D. 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 under 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 stated that an election petition does not lie at all and that the matter is one which should have been adjudicated under S. 28 of Act XXXV of 1958.

Under 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 amount due by him (otherwise than in a fiduciary capacity) to the Panchayat or the Panchayat Union Council, upto 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, upto 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 that 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. Raghavan 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 is 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. Exs. 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 service of the demand notice. In Exs. A. 5 to A. 10, some person presumably the Bill Collector purports to have received that demand notices for the period between 1959 and 1962 had been served. The entries in Ex. 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. R.M. L. R.M. that is, the mother of the petitioner. The entries in Exs. 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 Exs. 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 five 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 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 authorises 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 Gaibandha Loan Office Ltd. Vs. Mt. Saiyadunnessa Khatun and Others, . In that case, the question that had to be considered was whether a notice under 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 Demands Recovery Act and an entry in the order sheet of the certificate officer was held to be admissible under S. 35 of the Evidence Act. It does not seem to me 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 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 S. 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 supplemental ground raised by Mr. V.V. Rahgavan, Learned Counsel for the petitioner, that the election petition itself is not maintainable and that resort should have been had under S. 26 of Act XXXV of 1958. Since the point has been raised, I may briefly express my view thereon. S. 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 S. 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 under 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 S. 25 of the Act is also a matter that can be canvassed before the prescribed judicial authority. Since the statute has therefore provided in S. 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 under S. 178 of the Act provide for the adjudication on election disputes by the Election Commissioner is not denied. Under 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 enquiries and the decision of disputes relating to elector 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 under S. 25 is mentioned in S. 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 S. 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 S. 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 S. 28. It should follow therefore that the Government have the power under 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 S. 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.