Rathnam Pillai vs Sellappa Reddiar and Another

S. Ramachandra Ayyar, C.J.—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 of Thuraiyur), 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 Tiruchirappalli district. 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 fifteen 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, Thuraiyur, who was the Election Commissioner for the purpose of the petition, was closed for the summer recess. The Court was re-opened 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''s 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 of 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 re-opening date of that Court. The Election Commissioner accepted this contention of the Appellant and dismissed the petition. Veeraswami, J., in proceedings initiated under Article 226 of the Constitution against the first Respondent, held that the presentation to the head clerk of the District Munsif''s 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 further enquiry 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:

(i) except in cases falling under Clause (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

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Provided that an election petition may, on application be transferred--

(a) if presented to a District Munsif under Clause (i), by the District Judge concerned, to another District Munsif within his jurisdiction and

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Provided farther 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 Persona designate 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 fifteen 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 fifteen 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-clauses 3 to Rule 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''s Court functioning through him, but the officer himself functioning as a Court. In Parthasaradhi Naidu v. Koteswara Rao I.L.R.(1923) Mad. 369 (F.B.), Schwabe, C.J., while considering the jurisdiction of the High Court u/s 115 , CPC over matters decided by a Judge designated Persona Designata, observed at page 373:

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 I.L.R.(1935) Mad. 954. 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 connexion 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 Rule 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 himself to 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 The Receiver of The Nidadavole and Medur Estates v. Suraparazu ILR (1913) Mad. 295 (F.B.), 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 Judges reasons were by virtue of Section 192 of the Estates Land Act, the provisions of the CPC were made applicable to suits, and that, as Order 4, Rule 1, CPC 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, if 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 Order 4, Rule 1, Code of Civil Procedure. 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 Rule 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 fact of the record and that a writ should issue, quashing the same with appropriate directions.

The appeal fails and is dismissed with costs.