Rajamanickam vs Ramiah Chettiar and Another

S. Ramachandra Ayyar, C.J.—This appeal arises from the judgment of Veeraswami, J., and it raises a question as to the validity of the

Appellant''s election as the President of the Village Panchayat of Veerapandy in Madurai district. The Panchayat is a second-class one consisting

of fifteen members. Election to the office of the President was fixed to take place at 10 a.m. on 23rd October 1958. Notice of the meeting to the

members of the Panchayat for the purpose of the election was issued in the form of a circular letter. Individual notices were not however, sent.

Rule 2(2)(ii) of the rules relating to conduct of election of Presidents and Vice-Presidents of panchayat states:

that notice of the day and hour of the meeting shall be given to the members atleast five clear days previous to the date of the meeting.

There are rules under the Act as to the method of service of notice on the individual members of Panchayats. Under Rule 7 of the rules framed

u/s 112(2) of the Madras Village Panchayat Act, 1950 (vide pages 295--296, published by Madras Law Journal Office) it is prescribed:

When any notice is required by the Act or by any rule, by-law regulation or order made thereunder, to be served on or sent to, any person, the

service or sending thereof may be effected--

(i) by giving or tendering the said notice to such person; or

(ii) If such person is not found, by leaving such notice at his last known place of abode or business, or by giving or tendering the same to some

adult member or servant of his family; or

(iii) if such person does not reside in the village and his address elsewhere is known to the executive authority, by sending the same to him by

registered post; or

(iv) if none of the means aforesaid be available, by fixing the same in some conspicuous part of such place of abode or business.

Thus, the rules do not permit the issue of a general circular. Separate notices should, therefore, have been served in the manner indicated. There

was, therefore, a clear irregularity in the service of notices. There is yet another matter to be referred to that related to the manner of service of

notices. Three of the fifteen members of the Panchayat were alone personally intimated by means of the circular. Others not being available at their

residences on any of the three days during which the persons entrusted with the service of notices sent to them, intimation of the meeting was given

to the senior members in the family of the respective Councillors of the Panchayat. There is no doubt on the evidence that while so intimating the

employee entrusted with the service of the notices gave the date, time and place of the meeting. That was sufficient to serve the intended purpose

as ail the members of the Panchayat turned up to attend the meeting on the notified date. One of them came a few minutes earlier than the time

fixed for the meeting; but he left the place before the actual meeting. There was an allegation that he was decoyed by the Appellant or by his

supporters. But that allegation has been found to be false by the election commissioner. We must, therefore, take it that the member who came to

attend the meeting but went away before the meeting commenced had sufficient notice of the meeting. Another member who was personally served

with notice came fifteen minutes after the time fixed for commencement of the meeting. The presiding officer did not wait for him. The meeting

commenced at the appointed time and was over before the late-comer could join it.

We shall now state what transpired at the meeting. Immediately after its commencement, and after the necessary formalities were gone through,

the name of the Appellant was proposed and duly seconded for the post of the President of the Panchayat. Seven out of the thirteen members

present proposed his name. It can be taken that they were his supporters. The Respondent who evidently had an ambition to occupy the post of

President made certain attempts to have the meeting adjourned but they proved infructuous. His name was then proposed by a few of his

supporters but they were in a minority. It is now found that the Respondent did not even express his willingness to stand. This is highly probable

because his defeat was certain having regard to the open support given by the majority to the Appellant. The presiding officer who found that there

was no rival to the Appellant gave a ruling to that effect, and declared the Appellant as duly elected. Soon after the declaration of the result and

within the time limited by the rules, the Respondent filed a petition to have the election set aside, before the election commissioner (District Munsif),

Periakulam; several grounds were urged in the petition to invalidate the election. It is however, unnecessary to refer to them as none but the validity

of the meeting convened for the purpose of electing the President, has survived for consideration by us.

The election commissioner, after overruling the various other objections to the validity of the election, held that the meeting of the Panchayat had

been validity constituted and that the election of the Appellant could not be challenged.

The Respondent then moved this Court under Article 226 of the Constitution. Veeraswami, J., came to the conclusion that the meeting

convened for the purpose of election was invalid and he accordingly issued a writ quashing the order of the election commissioner. The main

reason that induced the learned Judge to come to that conclusion is his finding that five clear days notice of the meeting as required by the rules had

not been given to the individual members of the Panchayat.

In this appeal the Appellant has challenged the correctness of that conclusion. There can be, no doubt, that the validity of the election of the

President of the Panchayat in the present case depends on the validity of the meeting. The only ground on which the validity of the latter is

impugned is that sufficient notice had not been given to the members of the Panchayat about the meeting.

It is well-settled that failure to give notice of a meeting even to a single member or a person entitled to receive notice would render the meeting a

nullity. The basis of this rule is that every one entitled to be present at a meeting of a corporation where a corporate act is done, must receive

notice of the meeting. If such notice is served any business transaction at the meeting subject to the rules as to quorum, etc., will be valid, whether

the member attends it or not. Recently in Writ Appeal No. 114 of 1961, a Bench of this Court to which one of us was a party, had to consider the

validity of an election of the President of a Panchayat when no notice was served on one of its members. It was held that the election was void for

the reason that a Panchayat being a corporation, its corporate act could be done only in a meeting with its members present and it was essential

that due and adequate notice must be given to each member entitled to be present at the meeting in strict accordance with the rules made in that

behalf and an omission to summon even a single member to the corporate meeting avoids the business done at that meeting. In the present case,

however it cannot be said that there was no notice oil the meeting at all. Notice of the meeting was given to all the members but the service of such

notice was not in accordance with the rules. It was irregular and not in the prescribed manner. But all the members came and attended the meeting.

Significantly enough, none of the members who had not been served personally with notice complained that he had not sufficient notice. The

Respondent who moved for an adjournment of the meeting had been personally served. So too was the late-comer. The rules, no doubt,

contemplate that five clear days'' notice should be given. The employee entrusted with the service of notice did personally inform the adult

members in the family of the absentee members of the Panchayat about the meeting and that too five days in advance. It has, therefore, to be

considered whether the irregularity or defect in the service of notice of the meeting would vitiate the meeting and consequently the election. In

Eastern Division of the Country of Clare Election Petitions, Vol. IV, O''malley and Henry Hardcaste, page 168 an election was sought to be

avoided on the ground that a Sunday had been included in the two days'' notice required for the election, although under the relevant rules it could

not be so done. It was held that it was a mere irregularity and not such an irregularity as to affect the result of the election and that the election

could not be set aside on that ground. O''Brien, J., observed at page 165:

It is clear that the notice was not the proper one on account of it having been overlooked that Sunday was excluded from the computation of the

time under the Act. It is true there are cases in which the legality of certain acts or proceedings depends upon the fulfilment of certain statutory

conditions, and is not affected by the waiver or acquiescence of the parties; but notice of any proceeding, as a general rule, is a matter of

irregularity and not of strict condition, so as to exclude all effect of waiver or adoption. If the question were not of statutory time but of natural time,

as, for example, if one day''s notice instead of two days'' notice had been given, we might have to consider whether there was a distinction

between the two cases in regard to the rule that irregularity does not avoid an election under certain circumstances; because information in time of a

great public act to be performed over a wide area would undoubtedly be an essential element in the legality of the proceeding. But the day

excluded by the statute is the day which, in fact, as we know, is usually devoted a political discussion and preparations ,and is in other countries the

usual day for public elections; and any actual inconvenience from that day being included in the notice is therefore entirely out of the question. I do

not at all admit as certain the doctrine that the law of estoppel does not apply to such a case, merely on the ground that the matter is one in which

the public are concerned, or because it may happen that a person who is not affected by the estoppel, as, for instance, one of the public at large,

may question the election by petition.... But without deciding either of these difficult questions, I am quite clear that the terms of the 13th section of

the Ballot Act, with reference to irregularities not avoiding the election, do embrace the case; and that it would be the last degree of monstrous

injustice and absurdity not to apply them to it and to put half a country to the expense and inconvenience of a new election when there is no

evidence suggested of any kind of prejudice from what has happened.

The foregoing observations are of particular significance to this case. If the defect in the service of notice goes to the root of the matter, e.g., a

condition prescribed not being complied with, that will be an illegality. But where the condition has been complied with but the method of fulfilling it

has not been in the prescribed form, it can only amount to an irregularity which, in the absence of proof that the election result had been affected

thereby, will not vitiate the election.

There is yet another point. We have already pointed out that the rules do require five clear days'' notice. The person who was entrusted with the

service of notice and who has been examined as a witness, has spoken to the fact that he had been to the residence of the absentee members on

the 15th, 16th and 17th when he intimated the senior members in the families of the absentee members about the date and time of the meeting.

Even if one were to take that such notice was given on the 17th, there were five clear days before the actual date of the meeting. The only thing

that could be said is that there has been an irregularity in the service of notice, namely, that it was not in accordance with the rules made under the

Act, but was in the form of a circular sent to the various members and that actually a copy of the notice was not tendered to the senior members of

the absentee panchayatdars'' families. That irregularity did not prevent the members from attending. The meeting was therefore, a valid one. Even if

we were to assume that the attendance of the members could not cure the irregularity, it would at its best only amount to an irregularity coming

within Rule 11(c) of the rules relating to the decision of election disputes and unless the result of the election had been materially affected by reason

of such irregularity, the election cannot be avoided.

It has been found, and that finding has been accepted by Veeraswami, J., that there was no rival candidate to the Appellant, as the Respondent

did not intimate his willingness to stand as a candidate for the office of the President when his name was proposed by his supporters. There being

thus no rival candidate, the election could only be in one way, that is, in favour of the Appellant. It cannot, therefore, be said that the result of the

election was in any way affected by the irregularity alleged. In either view, namely (i) that there has been a substantial compliance of the rules as to

the service of notice and that the defect or irregularity in the service has been cured by the members attending the meeting; (ii) that at best the

defect in service was only an irregularity which is not shown to have altered the result of the election, the election of the Appellant must be upheld.

The appeal succeeds and is allowed with costs against the first Respondent.