Mohammed Kasim vs S.K. Siddhu Chettiar and Others

K. Veeraswami, C.J.—The appeal arises from an order of Palaniswamy, 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 April 27, 1969. The Appellant filed an election petition before the Vacation Judge, Coimbatore, on May 12, 1969 u/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 Commissioner declined to accept the objection with the result we mentioned above. The first Respondent thereafter moved under Article 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 Rule 1(2) of Rules for decision of disputes as to validity of elections held under Madras District Municipalities Act, the election Court shall be the Subordinate Judge having territorial jurisdiction over the municipal area. Sub-rule (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. Section 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 cognizable 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 Munsiff''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 Section 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 jurisdiction 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 if may deal with may be described as civil in character, is not a Court under the CPC and also for the purpose of Section 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, Section 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 1 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 notwithstanding its subsequent transfer to the forum having jurisdiction, has been well established since Ledgard v. Bull ILR All. 191. In that cases, 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. The principle has been followed in Assistant Sessions Judge, North Arcot v. Ramammal ILR Mad. 387, A Pleader in re ILR (1940) Mad. 433 Singara Mudaliar v. Govindasami Chetii 54 M.L.J. 145 and in K.R. Sankar Vs. M.A. Buvanambal Ammal, . It is however, contended for the Appellant that on the principle of Rathnam 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 of 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 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.

The appeal is dismissed with costs.