Rathnam Pillai vs Sellappa Reddiar and another

This is an appeal from the judgment of Veeraswami J, issuing a Writ of Certiorari and quashing the order of the Election Commissioner (District

Munsif, Turaiyur), who dismissed an election petition filed by the first respondent as barred by limitation. The sole question for determination in the

appeal is whether 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, or, whether it is obligatory on him to present it to the Election Commissioner personally. The appellant and the

first respondent were the competing candidates for election to the office of the Chairman of the Panchayat Union Council at Perambalur in

Tiruchirapalti Dt. The election was held on 24th April 1961 at the premises of the Council. The rival candidates secured an equal number of votes.

Lots were then cast. The result turned out to be in favour of the appellant who was declared elected. Aggrieved by the result so declared the first

respondent took steps to challenge the same by a petition. Under the relevant rules for the decision of disputes in regard to an election, an election

petition will have to be presented within 15 days from the date of the declaration of the results of the election to an Election Court constituted

thereunder. The election took place during the time when the Court of the District Munsif, Turaiyur, who was the Election Commissioner for the

purpose of the petition; was closed for the summer recess. The Court was reopened on 22nd May 1961. On that date, an election petition

challenging the election of the appellant as the Chairman of the Union Council was presented. There is a controversy between the parties as to

whether it was presented to the District Munsif, the Election Commissioner, personally or to his head clerk, who in turn delivered the petition to the

District Munsif only on the following day. The Advocate who presented the petition on that day has been examined in support of the case that such

presentation was made to the District Munsif personally. But this evidence, for no valid reason, was not accepted by the Election Commissioner,

who held that the petition must have been presented only to the Head Clerk of the District Munsif Court on the 22nd and that it must have been

given by that subordinate to the District Munsif only on the following date. For the purpose of this petition, we consider that it would be sufficient

to proceed on the basis of the finding to the Election Commissioner, however, unsatisfactory it might be. The appellant contested the maintainability

of the petition on the ground that it was barred by limitation, as, according to him, it should be deemed to have been validly presented only on 23rd

May, 1961, that is, a day after the last day for the presentation of the petition, i.e., the reopening date of that Court. The Election Commissioner

accepted this contention of the appellant and dismissed the petition. Veeraswami J. in proceedings initiated under Art. 226 of the Constitution

against the first respondent, held that the presentation to the Head Clerk of the District Munsif Court on 22nd May 1961 was a valid presentation,

and that, therefore, the petition was in time. The learned Judge issued a Writ quashing the order of the Election Commissioner and directing him to

proceed with the further inquiry into the merits of the petition; hence this appeal.

The substantial contention of Mr. V. P. Raman, who appears for the appellant, is that as the District Munsif (Election Commissioner) under the

relevant rules, is acting as a persona designata, it will not be open to the first respondent to present the election petition to any person other than

the Election Commissioner himself. The soundness of this argument depends on the construction to be placed upon the relevant rules framed under

the Madras Panchayats Act, 1958. Rule (1) states that an election can be challenged only by a petition presented in accordance with the rules to

an election Court, Sub-rule 2 to that rule defines an election Court thus:

(1) except in cases falling under Cl. (ii), in the case of districts other than the Nilgiris, the District Munsif having territorial jurisdiction over the place

in which the office of the Panchayat is situated, or, if there is more than one such District Munsif, the Principal District Munsif, and in the case of the

Nilgiris district the Subordinate Judge, Ootacamund and...........................

Provided that an election petition may on application be transferred --(a) if presented to a District Munsif under Cl. (i), by the District Judge

concerned, to another District Munsif within his jurisdiction and...........

Provided further that where an election petition is transferred to any authority under the foregoing proviso, such authority, shall be deemed to be

the election Court.

(3) A District Munsif, Subordinate Judge or other officer exercising jurisdiction under these rules shall be deemed to exercise such jurisdiction as a

personal designata and not in his capacity as a Munsif or Judge or other officer of Government, as the case may be.

Rule 2 : The election petition shall be presented within 15 days from the date of the declaration of the result of the election.

Explanation : If the office of the Election Court is closed on the last day of the 15 days aforesaid, the petition may be presented to the election

Court on the next following day on which such Court is open.

It will be clear from the rules extracted above that the petition is to be presented to the Election Court. The Explanation to Rule 2 would show

to suggest that the election Court will be the District Munsif. But it is implicit on a reading of the Explanation to Rule 2 that the presentation is to be

made at the office of the election Court, as otherwise there would be no need for enabling the election petitioner to file the petition to wait for the

reopening of the office of the Court.

Mr. V.P. Raman, however, contends that, as, under Sub-Cl. 3 to R. 1, the election Court is a District Munsif exercising jurisdiction persona

designata, the election petition should be given to him personally. There is a misapprehension in the argument. The effect of the rule is that the

District Munsif exercising jurisdiction under the rules is not functioning as representing a Court, that is, the District Munsif''s Court, but as a persona

designata. In other words, it is not a case of the District Munsif Court functioning through him, but the officer himself functioning as a Court. In

Parthasarathi v. Koteswara Rao 47 Mad. 369=19 L.W. 402 (F.B.), Schwabe C.J. while considering the jurisdiction of the High Court under S.

115, C.P.C., over matters decided by a Judge designated persona designata, observed:

That depends on whether the Judges therein referred to are acting as Courts, or acting merely as persona designata, that is to say, persons selected

to act in the matter in their private capacity and not in their capacity as Judges.

This point has further been clarified by Curgenven, J., in Mahabaleswarappa v. Gopalaswami 58 Mad. 954=41 L.W. 503, thus :

A persona designata, as the phrase implies, is a person pointed out by name or other personal description in contra-distinction to one whose

identity is to be ascertained by the office which he holds......We take the meaning to be simply this, that the selected Judge is to act not in virtue of

his jurisdiction as such Judge but in virtue of a species of extra jurisdiction, specially conferred. The work has no connection with his ordinary

duties, but, so far from being done by him as persona designata it attaches to him by virtue of his office, and he does it ex officio.

It is because of this principle that the Election Commissioner is not regarded as an ordinary civil Court with the trappings of right of appeal and

right of revision. Under R. 1 (3), to which we made reference, the District Munsif is constituted persona designata only for the purpose of

exercising his jurisdiction, that is to say, In the matter of the election dispute. The effect of that provision will be that neither an appeal nor a revision

petition will lie against the order in such a case. That does not, however, mean that the District Munsif should not have the assistance of his

subordinates for the performance of ministerial acts. To hold otherwise or to accept the argument which Mr. V.P. Raman has advanced with so

much earnestness, would be that the Election Commissioner would have to himself write out and issue processes or even serve them to write out

copies of his order or even deliver such copies to the parties. Obviously, that would not have been the intention of the rule-making authority.

Reason and convenience therefore require that such ministerial acts should be done by subordinate officers. In our opinion, that an Election

Commissioner under the rules is not functioning as a civil Court, but only as a persona designata only means that he is performing his judicial acts as

such. But attendant, ministerial acts like the presentation of the petition, making out copies, issuing of process etc., can be done by the subordinates

of the District Munsif. Learned Counsel for the appellant then invited our attention to a Full Bench decision of this Court reported in Nidadavole

and Mehur Estates v. Suraparazu A I. R. 1916 Mad. 3, where a plaint under the Madras Estates Land Act was presented, in the absence of the

Collector, to his Head Clerk, A Full Bench of this Court held that, in the absence of a previous authorisation by the Collector enabling his Head

Clerk to receive the plaint, the presentation was not a proper one. The learned Judge''s reasons were by virtue of S. 192 of the Madras Estates

Land Act, the provisions of the CPC were made applicable to suits, and that, as O.4, R. 1, C. P. C, provided that every suit should be instituted

by presenting a plaint to the Court or such officer as it appointed in that behalf, the plaint not having been presented to the Court, it could not be

presented to an officer who was not appointed in that behalf. The rules in the instant case make it clear that the CPC will not as such apply to the

present case. There is therefore no occasion for considering the applicability of O. 4, R. 1, C. P. C. As we stated above, the Election

Commissioner is a persona designata only with respect to his decision of the case, for the purpose of the discharge of the ministerial functions, it

was competent for him to obtain the assistance of the subordinates in the office in which he is functioning as a Court. The Explanation to R. 2,

impliedly recognises this. Viewed in that light, the presentation of the petition to the Head Clerk--the accredited officer for the purpose of receiving

plaints etc.,--was a proper presentation; We therefore agree with the learned Judge (Veeraswami, J.,) that the disposal of the election petition by

the Election Commissioner was vitiated by an error apparent on the face of the record and that a writ should issue, quashing the same with

appropriate directions.

The appeal fails and is dismissed with costs.