N. Kotayya vs State of Andhra and Others

Viswanatha Sastri, J.—This is a petition under Article 226 of the Constitution for the issue of a writ of certiorari quashing an order G. O. Mis. No. 719 (Local Administration), dated 29th July, 1954, of the first Respondent, the State of Ancftiva, The second Respondent is the Regional Inspector of Municipalities and Local Boards, Northern Range, Vijaya-wada. Purporting to act in exercise of the powers delegated to him by the Inspector of Municipal Councils unci Local Boards u/s 127 (2) of the Madras Village Panchayats Act of 1950 (hereinafter referred to as ''the Act''), the second Respondent issued a notification u/s 3 (2) excluding Swarnapalem, a hamlet of Swarna from the Swarna Panchayat and including it in the neighboring Panchayat of Kodavalivarpalem. The remaining extent of Swarna without the hamlet was constituted as the Swarna Panchayat.

On the basis of the extended jurisdiction fixed: by the notification of the second Respondent, elections to the Panchayat of Kodavalivarpalem were held on 16th February, 1954. On the same day, the Petitioner was also elected President of the-Panchayat of Kodavalivaripalem. On 29th July, 1954. the Government of Andhra acting u/s 123 of the Act made the order now sought to be quashed. In and by the order, the Government declared the notification of the second Respondent excluding Swarnapalem, hamlet of Swarna. from the Swarna Patiehayat and including it in the neighbouring Kodavalivarpalem Panchayat to be illegal and also set aside the elections held, for the re-constituted Kodavalivaripalem Panchayat as being null and void. It is this order of the Government that is challenged by the Petitioner a? being illegal and without jurisdiction,

It was argued that elections to the panchayat having been held and the President of the Panchayat having also been elected, the only manner in which these elections could be set aside was by a petition presented under the Rules framed under the Act for the decision of election disputes. Under Rule 1(1) no election held under the Act whether of a member or a President of a Panchayat "shall be called in question except by MII election petition presented, in accordance with these Rules to ah Election Commissioner by any candidate or elector" against the returned candidate. The Election Commissioner in most cases would be a Judicial Officer and the proceedings for setting aside an election are directed to be inquired into as nearly as may be in accordance with the procedure applicable under the CPC to the trial of suits.

Under Rule 11 (c) the election of the returned candidate shah be void, if, In the opinion of the 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." It was urged that if the elections had been held without compliance with the provisions of the Act or the Rules, whatever be the nature of the pro vision disobeyed or disregarded, still the only remedy available for setting aside the election of. the returned candidates is by a petition to the Election Commissioner under R. i (l'') of the wiles.. It was urged that the Government could not under the guise of exercising! its provisional power u/s 128 of the Act, set aside elections and that it had no jurisdiction to upset the verdict of the electorate in this indirect manner,

It is true that the Election Commissioner is a special Tribunal created, under the Act for hearing objections to the election of a member or president of a Panchayat and that he is empowered to declare the election of the returned candidate void if the result of the election has been materially affected by any noncompliance with the provision, of five Act or the rules made there under. If the election of a returned candidate is sought to be set aside by an elector or a rival candidate, it can only be done by a petition under the Rules. It is also true that Judicial. knowledge, fairness and'' impartiality in dealing with objections to an election were considered by the farers of the Rules as so essential to the freedom and purity of elections that the District Munsif having local jurisdiction was designated as the Election Commissioner to try these objections and his decision was also made final.

The present case is not n dispute between an elector or a candidate for election and the returned candidate, about the validity or regular of the election. The very foundation of an "election to a panchayat is the oonstindion of one or more villages as a pancliayot by the Inspector u/s 3 of the Act. The village has to be divided into wards and the number of members to- be returned by each ward and the total number of members of a panchayat have to be determined and notified by the inspector under Ss. C and 9 of the Act. Under S. 10 (2) the election authority has to fix the date of the election These fundamental requisites must be complied with, before there could be any election at all. Orders made by the Inspector or any person authorised by him with regard to these preliminary steps which have to precede an election are open to revision by the Government u/s 128 of the Act.

Under Rule 1 (1) of the Rules, objections to elections ''held under the Act'' have to be determined by the Tribunal designated by the Rules and in the manner prescribed thereby. The '' Rules for the decision of the election disputes contemplate an ex facie regular election where the preliminary steps preceding inflection and required by law have been taken by the appropriate authorities. If an election is purported to be held for an area not legally constituted as. a panchayat the election itself would be void. If the essential stops required by law to be taken as preparatory to an election have not been taken, or if such steps have been taken in a manner opposed to law, then, in that case the election would be void urination and wholly without jurisdiction and no question as to the result of the election being materially elected would arise as envisaged by Rule 1(1).

Rule 11 contemplates the setting aside of the election of the returned candidate or the President of Pantheist on one or more of the grounds set out therein. Among these grounds is the Commission of an election offence by the returned candidate, the violation of any Law or Rules relating to the secrecy of elections, bribery of electors or candidates, provision of free conveyance for electors, improper reception or rejection of a nomination paper or vote etc. The commission of election offences u/s 58 of the Act or Chapter IX-A of the Penal Code by the candidate or his election agent "or some other person with his connivance, renders the election liable to be set aside on that ground without more, In other cases the election of the returned candidate must be shown to have been procured or induced of the result of the election to have been materially affected'', by the corrupt practices enumerated above.

It is only if the objections raised to the election of the returned candidate or the President fall within one or other of the three clauses of R. 11 that the Election Commissioner is empowered to declare the election aroid. Breaches oi transgressions of the law regulating the formation of constituencies for which elections are to be held, committed before the beginning of the election, do not fall within the purview of Rule 11. Ordinarily the first formal step in every election is the notification fixing the date there for. The Commissioner for the decision of election disputes does not come into the picture till the date for election is notified. The order of the Government canceling the notification of the second Respondent excluding Swarnapalem, hamlet of Swarna from Swarna Panchayat and including it in the neighbouring Kodavalivaripelem, Panchayat was not repugnant to Rules 1 and 11 of the Rules for the decision of election disputes.

The order, though passed by the Government after elections to the re-constituted panchayat were held, was one which related to a preliminary step preceding the election taken by the second Respondent establishing a new constituency and forming n panchayat with an extended area, by a notification purporting to be issued u/s 3 (2) of the Act. Section 128 of the Act gives the Government revisional power over the orders and proceedings of the second, Respondent and in the exercise of that power the Government, cancelled the notification of the second Respondent as being illegal. Whether the view of the Government is legally correct will be presently considered. The declaration by the Government of the invalidity of the elections purporting to have been, held for the re-constituted panchayat was consequential upon and merely followed as a necessary and inescapable result of the cancellation of the second Respondent re-constituting the Kodavalivarpalem Panchayat, (5) Therefore the only question that remains '' for our consideration is whether the order of the Government cancelling the notification of the second Respondent purporting to take away the hninlet of Swarnapalem from Swarna Panchayat and Incorporating it with the neighbouring Kodavalivaripalem was validly made. It is necessary to refer to the relevant provisions of the Act and the Rules. Section 2 (221 of the Act defines "revenue village" as meaning.

any local area which is recognised as a village in the revenue accounts of Government...and, includes a hamlet in existence at the commencement of this Act and notified by the inspector to be a revenue village for the purposes of this Act.

Section 2 (25) defines a "village" as meaning any local area, which is declared to be a village under this Act." Section 3 of the Act so far as it is now material, runs thus:

Section 3 (1): The Inspector shall as soon as may be after the commencement of this Act, by notification:

(i) declare every revenue village with a population of not less than five hundred to be a village for the purposes of this Act, and specify the name of such village ;

(ii) group a revenue village with a population of less than five hundred, with any contiguous revenue village or villages so that the total population of all the revenue villages so grouped, is not less than five hundred, declare the revenue villages so grouped to be a village for the purposes of this Act, and specify the name oil such village.

(2) (a) The Inspector may, by notification, Exclude from a village any revenue village comprised therein, provided that the population of the village, after such exclusion, is not less than five hundred.

(b) In regard to any village so excluded, the Inspector shall take action under Sub-section (1) according as it has a population or not less than five hundred or of less than live hundred, as the case may be.

(c) Before issuing a notification under Clause (a) or under Clause (b) ''read with Sub-section O). Inspector shall give the panchayat or panohayats which will be affected by the issue of such notification a reasonable opportunity for showing cause against the proposal and shall consider the explanation and objections, if any, of r.ueh pauchayats." Rule 2 of Soh III of the Act which contains Iraiv sitional provisions runs as follows:

Existing Villages and Panchayats to be deemed to be duly constituted Every local area which, at the commencement of this Act, is a village under the old Act shall be deemed to have been declared to be a village under this Act and every panchayat shall be deemed to have been constituted under this Act:

Provided that where a village under the old Act comprises any revenue village which has a population of five hundred or more and the population of the village after excluding such revenue village is not less than five hundred, the Inspector shall, as soon as may be alter the commencement of this Act, exclude such revenue village from the village and declare it to be a village for the purposes of this Act, in accordance with the provisions of Section 3 thereof unless he considers it Inexpedient to do so on account of the contiguity of the revenue villages comprised in the village." The "old Act" in the above Rule meant the Madras Local Boards Act, 1920,

On 16th April, 1940, Swama village including the hamlet of Swarnapalern was constituted as a panchayat and Kodavalivaripalem village was also constituted us a panchayat. by a notification under the old Madras Local Boards Act, 1920. On 15th. July. 1953, the second Respondent issued a notification under the ''Panchayat Act in terms of the notification dated 16th April, 1940, On 18th December, 1953, the second Respondent issued a notiiication superseding the prior notification and including the hamlet of. Swarna-palem in Kodavalivaripalem village and excluding it from Swarna Panchayat and it is this notification that was set aside by the Government. In our opinion the order of the Government was legal and proper. Swarnapalern was, at. the commencement of the Act, a hamlet of Swarna village and did not, by itself constitute a revenue village.

The second Respondent should first have notified the hamlet of Swarnapalern as a revenue village u/s 2 (22) of the Act before excluding It from the Swarna Panchayat under S 3 (2) (a) of the Act. In the absence of a notification by he second Respondent declaring the hamlet Swarnapalern as a revenue village for the of the Act, he could not validly exclude it from the Swarna Panchayat or include it in Kodavalivaripalem. The second Respondent having omitted to notify the hamlet Swarnapalern as a revenue village, the omission rendered the notification invalid. Secondly, he omitted to consult the Swarna Panchayat before excluding the hamlet of Swarnapalern from its area. This consultation was obligatory upon him u/s 3 (2) (a) of the Act.

Thirdly before including the hamlet of Swarnapalern in the Kodavalivaripalem Panchayat the second Respondent did not ascertain whether or not the population of the hamlet exceeded 500, for such inclusion would be inadmissible u/s 3 (1) (i) of the Act if the population exceeded �00. For these reasons, the Government set aside the notification of the second Respondent excluding the hamlet of Swarnapalern from the Swarna Panchayat and including it in the Panchayat of Kodavalivarpalem. The order of the Government was in consonance with the provisions of the Act and the Rules.

The application is dismissed with costs: Advocate''s fee Rs. 100. K.S.B.