M. Narayanakonar vs S.R. Kumaraswami Reddiar and Another

Rajagopalan, J.—South Arasapatti Panchayat in Madurai district was. constituted for the first time in 1958. Elections were held for that

newly constituted; Panchayat on 8th September, 1958, when seven persons including the petitioner and the first respondent were elected as

members of that Panchayat. On 30th November, 1958, the first respondent was appointed Temporary President of that Panchayat u/s 25(3) of

the Madras Village Panchayats Act (X of 1950). The Regional Inspector appointed the Revenue Inspector to convene and conduct a meeting to

elect the President. He convened a meeting to be held on 11th December, 1958. But he was absent from that meeting. The meeting, however, was

held, and the first respondent presided over that meeting. At that meeting the first respondent was declared elected as President of the Panchayat.

That election, however, was-declared void by the Government on 8th April, 1959. The Regional Inspector followed it up by an order, dated 29th

April, 1959, appointing the Block Extension Officer to convene a meeting and to conduct it to elect a President afresh. On 8th May, 1959, the

Extension Officer, who had been appointed Election Officer, issued a notice convening a meeting for 12th May, 1959, for the election of the

President. That meeting was held. The Extension Officer presided over that meeting. Only four of the seven members were present at that meeting.

The first respondent did not attend that meeting. At that meeting held on 12th May, 1959, the petitioner''s name was duly proposed, and

seconded. There was no other nomination. The petitioner was declared elected.

Meanwhile, on nth May, 1959, the petitioner filed W.P. No. 466 of 1959 challenging the validity of the notice issued by the Extension Officer to

convene a meeting on 12th May, 1959. A rule nisi was issued and interim stay of the election was granted on 12th May, 1959. Before, however,

that order could be communicated to the Extension Officer, he conducted the election, and the election was completed. Eventually on 6th April,

1960, W.P. No. 466 of 1959 was dismissed.

The first respondent filed O.P. No. 27 of 1959 challenging the validity of the election of the petitioner at the meeting held on 12th May, 1959.

That petition was allowed on 9th December, 1959. It was apparently on that basis that the petitioner allowed W.P. No. 466 of 1959 to be

dismissed on 6th April, 1960.

The petitioner, whose election was set aside by the Election Commissioner in O.P. No. 27 of 1959 on 9th December, 1959, applied under

Article 226 of the Constitution of India for the issue of a writ of certiorari to set aside the order of the Election Commissioner.

Virtually the only ground on which the Election Commissioner set aside the election of the petitioner at the meeting held on 12th May, 1959,

was, that the Extension Officer, who had been appointed to convene and conduct that meeting had no lawful authority to convene or conduct that

meeting. The Election Commissioner relied on the decision of Balakrishna Ayyar, J., in W.P. No. 192 of 1959.

The decision of Balakrishna Ayyar, J., in W.P. No. 192 of 1959 was set aside on appeal, and the judgment of the Division Bench, dated 18th

December, 1959, has been reported as The Additional District Panchayat Officer Vs. S. Venkatarama Iyer and Others, Obviously, the Election

Commissioner had not the benefit of the appellate judgment when he disposed of O.P. No. 27 of 1959 on 9th December, 1959.

The validity of the order of the Election Commissioner was challenged by the learned Counsel for the petitioner on the grounds : (1) The finding

of the Election Commissioner that the Extension Officer who conducted the election on 12th May, 1959, had not the authority of law to conduct

that election constituted an. error of law apparent on the face of the record; and (2) O.P. No. 27 of 1959, which was presented by the first

respondent who was not a candidate himself at the election held on 12th May, 1959,.was not maintainable, and that the Election Commissioner

had, therefore, no jurisdiction to deal with the claim preferred by the first respondent.

It is easier to dispose of the second of the points. It was not specifically pleaded or put in issue before the Election Commissioner. The point,

however, could be taken if it affects the jurisdiction of the Election Commissioner.

Rule 1(1) of the Rules for Decision of Election Disputes provides:

Save as otherwise provided no election held under the Act whether of a member, President or Vice-President of a Panchayat shall be called in

question except by an election petition presented in accordance with these rules by any candidate or elector against the candidate who has been

declared to have been duly elected....

To appreciate the arguments on either side it is necessary to refer to the following features. These rules were promulgated in 1951, when the

statutory provision in the Act itself was for the election of President and Vice-President directly by the electors in the Panchayat. Section 21 of the

Act was amended by Madras. Act (XXIV of 1957), and the amended section provided for the election of the President and Vice-President only

by the members of the Panchayat. The contention of the learned Counsel for the petitioner was that, since obviously the first respondent was not a

candidate within the meaning of Rule 1(1), he could not present a petition challenging the validity of the election of the petitioner. The further

submission was that the word ""Elector"" in Rule 1(1) should be construed to mean only the persons entitled to vote for the election of members of

the Panchayat, and that it could not include members of the Panchayat, who under the amended Section 21 of the Act, were entitled to vote at the

elections of President or Vice-President of the Panchayat. No doubt, if the history of the rule is taken into account, it should be obvious that at the

time the rule was framed, using the expression ""Elector"", it was intended to and did factually cover all persons entitled to vote in the Panchayat, and

they were entitled to vote at the elections of members, Presidents and Vice-Presidents. Independent of that, the word ""Elector"" did not refer to a

member of a Panchayat as such. But the question is whether the history governs the interpretation of the word ""Elector."" ""Elector"" has not been

defined by the Act itself or by the rules. The normal dictionary meaning will have to be given, and elector will have to be construed to mean any

person entitled to elect. If the election is to be for the office of President, the persons declared by Section 21 of the Act entitled to elect the

President are the members of the Panchayat. Therefore, in relation to the election of a President, a member of a Panchayat would be an elector,

and he would be an elector within the scope of Rule 1(1) of the Rules under the Act, as it now stands, whatever might have been the intention of

the rule-making authority when the rule was framed. I negative the contention of the learned Counsel for the petitioner, that the first respondent had

no statutory right under Rule 1(1) of the Act to present a petition to the Election Commissioner challenging the validity of the election of the first

respondent.

The view taken by Balakrishna Ayyar, J., which the Election Commissioner followed was overruled by the Division Bench in The Additional

District Panchayat Officer Vs. S. Venkatarama Iyer and Others, , and the law laid down in the appellate judgment must be taken as the law that

has all along prevailed. In that case also the position was more or less the same. A Temporary President had been appointed for a newly

constituted Panchayat and an Election Officer was appointed to conduct the election. While Section 25(3) of the Act provides for the appointment

of a Temporary President, Rule 2(3)(a) of the Rules Relating to the Conduct of Election of President or Vice-President of Panchayats,

promulgated in April, 1950, provided for the appointment of person to convene and conduct meeting for the election of President in any

contingency for which Section 25(3) provides; that is, under Rule 2(3)(a) an officer can foe appointed to conduct the election where there is

vacancy in the office of President within the meaning of Section 25(3) of the Act. The view taken by Balakrishna Ayyar, J., in W.P. No. 192 of

1959 was that there could be no vacancy within the meaning of Section 25(3) of the Act in the case of a newly constituted Panchayat. That view

was overruled by the Division Bench. So in the case of the South Arasapatti Panchayat, that it was a newly constituted Panchayat did not really

affect the position. There was no President prior to 12th May, 1959, and the office of President of that Panchayat was vacant within the meaning

of Section 25(3) of the Act on 12th May, 1959. Though there was a Temporary President appointed u/s 25(3) of the Act, the validity of the

appointment of the Extension Officer under Rule 2(3)(a), which I have set out above, cannot be challenged on the ground that there was already a

Temporary President, who could, in the absence of appointment of an Election Officer, discharge the duties of a President, which could include

convening and conducting meetings for the election of President. The validity of the appointment of Election Officer was not challenged on the

ground that it had been made while there was already a Temporary President appointed u/s 25(3) of the Act. The view taken by the Election

Commissioner, that the appointment of the Extension Officer to conduct the meeting was invalid was, based on the view expressed by Balakrishna

Ayyar, J., that there was no vacancy within the meaning of Section 25(3) of the Act. As already pointed out, that view has been overruled. There

was a vacancy. The appointment of the first respondent as Temporary President was valid, and the appointment of the Extension Officer under the

rule to conduct the meeting was also valid.

Learned Counsel for the first respondent then submitted that there was no vacancy on 12th June, 1959, because the first respondent had been

elected at the meeting held on nth December, 1958. It should be remembered that that election was held to be void by the Government by its

order, dated 8th April, 1959. Though in O.P. No. 27 of 1959 the first respondent referred to his election at the meeting held on 11th December,

1958 he did not expressly challenge the validity of the G.O., dated 8th April, 1959 which held the election void and purported to set it aside. If the

contention of the first respondent was that the G.O., dated 8th April, 1959 was a nullity and was, therefore non est in law, that was a point which

he should have pressed for adjudication before the tribunal. There was no express plea, certainly there was no issue and there was no decision.

The only ground on which the Commissioner proceeded in determining whether there was a vacancy within the meaning of Section 25(3) was that

in the case of a newly constituted panchayat, there could not be said to be a vacancy within the scope of Section 25(3) of the Act, and once again

I have to point out that that view was based upon the decision of Balakrishna Ayyar, J., since held to be erroneous. It is not open to the first

respondent to seek an adjudication by me, in these proceedings under Article 226 of the Constitution, of a question not decided by the

Commissioner whether the G.O., dated 8th April, 1959 was non est in law and whether in fact and in law, the first respondent who was declared

elected on nth December, 1958 continued to be President of the Panchayat.

We go back to the question, whether there was an error of law apparent on the face of the record of the order of the Election Commissioner.

The view of the Commissioner was based upon an erroneous interpretation of Section 25(3) of the Act, though at the time the Tribunal rendered

that decision that erroneous decision had the sanction of the judgment of Balakrishna Ayyar, J. Nonetheless it has been held erroneous by a

Division Bench of this Court. Therefore, the position comes to this, that the Election Commissioner proceeded upon an erroneous interpretation of

Section 25(3) of the Act in holding that the Extension Officer was not validly appointed to conduct the election and that the election held by him

was not a valid election. That, in my opinion, constitutes an error of law apparent on the face of the record, and on that ground the order of

Election Commissioner is set aside.

If there are other contentions to be disposed of, it will be for the parties to seek the appropriate remedy in the proper forum. All I am

concerned now is with the order of the Election Commissioner that has to be set aside, and not with the further consequence that should follow.

The rule nisi is made absolute, and a writ of certiorari will issue to set aside the order of the Election Commissioner, dated 9th December,

1959 in O.P. No. 27 of 1959. The petition is allowed. No order as to costs.