Muthyukumaraswamiswami Pillai vs Muthukatha Pillai and Another

Ramakreshnan, J.—This appeal is directed against the order of SRINIVASAN J., in Writ Petition No. 615 of 1963. The prior facts necessary for a consideration of this appeal are briefly the following.

For the election of the President of the Panchayat Board of Marudandakurichi village, the election officer, the Revenue Inspector, fixed the date 24th of June 1958. Notice of this meeting was given on 19th June 1958. Under Rule 2(2)(ii) of the rules relevant to the conduct of election of Presidents and Vice-Presidents of Panchayats issued in G.O. Ms. No. 602, Local Administration, dated 5th April 1958, notice of the date and hour of the meeting shall be given to the members, at least five clear days previous to the date of the meeting. But unfortunately no election took place on the notified, date 24th June 1958, because the Revenue Inspector for some reason which is not apparent, did not turn up in the village on that date. He turned up in the village only on 25th June 1958, and then adopted a curious procedure. He summoned all the members orally and conducted a meeting. The Appellant before us, one of the members thus summoned, strenuously objected to the holding of the meeting, on the ground that it was being irregularly convened and conducted. But the Revenue Inspector did not listen to his objection, and thereupon the Appellant withdrew. Then the members present proposed two names as candidates, namely, the names of the Appellant and the first Respondent. No ballot boxes were provided, and no secrecy of voting was observed. At the election thus held, the Appellant got five votes while the first Respondent got six votes. The Revenue Inspector then drew up a record of proceedings in which, he mentioned that the election had taken on the 24th of June 1958, and declared the first Respondent as having been elected.

The Appellant filed an election petition before the Election Commissioner, who found that the election took place only on the 25th of June 1958, and that the record of the proceedings drawn up by the Revenue Inspector to the effect that the meeting was held on 24th June 1958, was a wholly fabricated record. The Election Commissioner declared the election void. The first Respondent then filed Writ Petition No. 908 of 1960. It came up before VEERASWAMI J., who observed that the Election Commissioner in setting aside the election had failed to give a finding under Rule 11(c) of the rules, as to whether the result of the election stood materially affected. Consequent upon this view, he set aside the order of the Election Commissioner and directed that the election petition should be disposed of afresh. At the same time, the learned Judge also observed that the findings already recorded by the Election Commissioner should be retained, namely, that the Election did not take place on 24th June 1958 but on 25th June 1958, that no ballot boxes had been provided and that there had not been five clear days notice of election as required by the rules. After the above order, the Election Commissioner reheard the matter and upheld the election of the first Respondent. The Appellant then filed the present Writ Petition under Article 226 of the Constitution alleging that the order of the Election Commissioner was vitiated by an error apparent on the face of the record and therefore should be quashed by a writ of certiorari.

SRINIVASAN, J., observed that if the matter had not been considered by the High Court in the earlier Writ Petition, where a specific direction was given by VEERASWAMI, J., on. the manner mentioned above, he would have been inclined to adopt the view laid down by one of us in Veeriah Ambalam v. Karuppan (1962) 75 L.W. 780 and hold that in the absence of the requisite notice for the election actually held on the. 25th, the election would be invalidated. But, the prior order in Writ Petition No. 90S of 1960 had left open for decision only the question whether the result of the election had been materially affected. The subsequent enquiry of the Election Commissioner showed that on the 25th in answer to the summons of the Revenue Inspector, all the 13 members were present and 12 of them took part in the election (excluding the Appellant) and the first Respondent was elected. The learned Judge held that in such circumstances it could not be concluded that the result of the election was materially affected by the irregularity found proved. Thereupon he upheld the election and dismissed the Writ Petition.

The rule referred to by VEERASWAMI, J., in the order in Writ Petition No. 908 of 1960 is Rule 11(c) issued in Notification 8 by His Excellency the Governor of Madras relating to the decision of election disputes and it reads:

If in the opinion of Election Commissioner the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act, or the Rules, made there under, the election of such returned candidate shall be void.

With due respect, we are unable to agree with the approach adopted by the learned Judge SRINIVASAN, J., to this particular case. There was a prescribed notice served on the members of the Panchayats Board, only for the election of the President notified to be held on 24th June 1958. But no election was. held on that date. The voters who were assembled in the village chavadi or other place selected for the meeting on the 24th, expecting the arrival of the Revenue Inspector, must have returned home finding that the Revenue Inspector had not arrived. They did not know as to what would happen thereafter in the matter of the election. There was no adjournment of the election to the 25th. The arrival of the Revenue Inspector on the 25th, and his convening the meeting and the summoning of members for the election, were totally unpredicted and unpredictable, till the actual arrival of the Revenue Inspector. The meeting thus held by the Revenue Inspector by oral summoning the voters, without any previous written notice to them giving them five clear days for making up their minds about the candidate to be elected, cannot be considered to be a properly constituted election meeting, for the purpose of electing the President. It has no higher status than an ad hoc meeting. The law does not countenance the election of a President held at a meeting convened ad hoc. It is necessary to comply with certain prescribed statutory formalities, which cover not merely the service of notices, but also the time, place and the election of a Presiding Officer. It would hardly suffice to say for upholding an election that it expressed the majority view of the voters, and that as long as that majority view has been clearly ascertained, it is a proper election. The majority view must be ascertained at a duly constituted election meeting by an officer nominated for the purpose, and after giving the prescribed notice to the voters. A meeting held under some other circumstances cannot be said to be a proper election meeting. In the present case, the meeting held on 25th June 1953 was not a duly constituted meeting for the election of the President. The voters must have been completely taken by surprise by the procedure adopted by the Revenue Inspector on the 25th, after they had left the place of the meeting on 24th, disappointed by the non-arrival of the Revenue Inspector and with no idea as to the fate of the proposed meeting. The five days'' notice prescribed in the statute is not an empty formality. It has been provided for the purpose of enabling the candidates to canvas for, prepare and for the voters to deliberate as to how they should exercise their franchise. The notice served on the voters for the meeting on the 24th, lapsed when no meeting was held on that date. That notice cannot be pressed into service, for validating the meeting on the 25th. In Veeriah Ambdlam v. Karuppan (1962) 75 L.W. 780 it was observed by one of us.

The election of the President of the Panchayat under the rules relating to the election, is to be made only in a meeting duly convened for that purpose. If, therefore, the meeting convened for that purpose of election is held to be illegal, the election at such meeting will automatically have to fall to the ground. Such a case should be distinguished from the one where a meeting had been lawfully convened, but an irregularity is committed in the course of the election.

In that case though the rule has provided for the service of notice to all the members for the meeting by a panchayat, one particular member had not been served with the notice, and therefore it was held that there was no validly constituted meeting for the presidential election.

The learned Judge SRINIVASAN, J., himself recognized that if the rule in Veeriah Ambalam v. Karuppan (1962) 75 L.W. 780 was to be applied to this case, the election would be invalid, but he felt that the direction given in the prior writ petition by VEERASWAMI, J., would preclude him from applying the principle laid down in the above decision, to this case. With respect, we are unable to agree. The relevant direction of VEERASWAMI, J., is this:

The Election Commissioner here has failed to give a finding as to whether the failure to follow the rules has materially affected the result of the election. Without such a finding, the order of the Election Commissioner setting aside the election of the Petitioner has to be quashed. The result is, the petition will have to be disposed of afresh after determining whether non-compliance with the rules has materially affected the result of the election of the President. While doing so, the findings already recorded will be retained which, as I said, the learned Counsel for the Petitioner did not dispute then.

The findings already recorded by the Election Commissioner related only to the meeting having been actually held on the 25th, instead of on the 24th, and also as to the records of the proceeding being fabricated. It is these findings of fact which the learned Judge VEERASWAMI, J., directed to be kept intact. We do not wish to express an opinion as to whether in writ proceedings, it will be open to this Court to pass an order of the above kind specifically confirming the findings of fact by the Court below, after quashing a consequential order. The rule more commonly followed is to quash the order without saying anything more about the findings of fact, because it is not the province of this Court in writ proceedings either to confirm the findings of fact or to disturb them, when they are based upon the appreciation of evidence in the case, which is within the exclusive purview of the Courts below. But even according to the direction of VEERASWAMI, J., that the findings of the Election Commissioner should be kept in tact, it only covered the point above mentioned, namely, the actual dale when the meeting was held, but the question whether the meeting was one properly convened for the purpose of electing the President was not referred to, and therefore still remained open for consideration. If the meeting was properly convened and thereafter there were irregularities which did not materially affect the result of the election, certainly the election would be upheld by the Election Commissioner under Rule 11(c). On the other hand, if the meeting itself was not one properly convened, and it was not a meeting as visualized by the statute, the election held at such an illegal meeting must be treated as void. Since the irregularity goes to the root of the matter, we are, therefore, of the opinion that nothing that had been observed by VEERASWAMI, J., stands in the way of our deciding this case upon the principles of law laid down above in Veeriah Ambalam v. Karuppan (1962) 75 L.W. 780.

We therefore allow the appeal. The Writ Petition is allowed and the order of the Election Commissioner holding that the election held on 25th June 1958 to be valid, is quashed.

We were told that in pursuance of the earlier order of the Election Commissioner, dated 29th February 1960 the election of the first Respondent herein had been set aside and a fresh election had taken place under the rules, at which the Appellant had been unanimously elected President. Those proceedings will be left unaffected by the present writ proceedings. The Appellant will get the costs of the appeal from the first Respondent.