Thangavelu Moopanar vs Kandaswami Moopanar and Another

Natesan, J.—This writ appeal has been preferred from the order of our learned brother Srinivasan J., discharging the rule nisi in an application for certiorari to quash an order of the Judicial Authority u/s 28 of the Madras Panchayats Act XXXV of 1958, hereinafter referred to as the Act. The Appellant and the first Respondent before us had both been elected as members of Kadambur panchayat, Udayarpalayam taluk, in the panchayat elections about the beginning of January 1935 and both were contestants in the election of the President for the panchayat. In that election held on 17th April 1965, the Appellant got elected as the President. On 27th May 1965, later the first Respondent as member of the panchayat, filed the application out of which these proceedings arise, before the District Munsif Ariyalur the Judicial Authority u/s 23 of the Act, for a decision contending that the Appellant was not qualified to be a member. It was the case of the first Respondent that the Appellant as he had subsisting contracts with the panchayat union. Thirumanur Block from before he filed his nomination paper, at the time of his election, and even subsequently and so was not qualified to be a member. In the petition the first Respondent had referred to Section 26(d) of the Act, but the Judicial Authority pointed out and dealt with the matter as one falling u/s 25 (c)of the Act, Section 26 (d) applying to interests in contract acquired subsequent to the election. On the evidence, the Authority found that the Appellant had subsisting interest in contract works which disqualified him to be a member of the panchayat. Contracts were found to have been subsisting from prior to the nomination. In respect of one contract, the final bill was made on 24th March, 1965. In respect of another contract, a part-payment bill was passed on 29th April, 1965. It is seen from the records that the final bill had not been passed in respect of this contract even at the time of the enquiry on the application. As noticed by our learned brother Srinivasan J., the Appellant had not only interest in a disqualifying contract on the date of the election but that contract continued to subsist even after the date of his election. Though Section 23 in terms does not refer to the President of the panchayat once the qualification of a person to continue as a member of the panchayat is challenged and it is declared that the member is not qualified to be a member, his election as President of the panchayat would automatically get invalidated.

It was urged for the unseated member before our learned brother, that if the disqualification existed even on the date of the election, only an election petition should be filed and that based on the same qualification which might continue after the date of the election resort could not be had to Section 28 of the Act. Another contention was raised that the member whose qualification was challenged, must continue to have a subsisting interest in the contract even on the date on which the judicial authority passed orders. Both the contentions were rejected by the learned Judge and the second contention has not been pressed before us in appeal. In fact, the grounds of appeal raised an entirely different point that the learned Judge in this Court failed to see that though the petition was filed u/s 26(d), the actual order was passed u/s 25 (c). It does not appear that this aspect was passed at all before the learned Judge. At any rate there was no argument before us on this point. Before us again, the contention was that the pre-election disqualification in question cannot be the subject of an enquiry, u/s 28 of the Act. It was submitted that the only remedy in respect of the pre-election disqualification was an election petition filed within the time stipulated. As we understand the argument, Section 28 should be taken to refer only to post election disqualification which attach to a member after he had been duly elected and not to disqualifications which existed even when he was a candidate for election and could form the basis of an election petition. Oar learned brother Srinivasan J., holding that Section 23 contemplates both kinds of disqualifications, that is, disqualification u/s 25 which relate to disqualification of candidates, and disqualification u/s 28 which deals with disqualification of member observes that when a person who is suffering any disqualification by reason of an interest in a subsisting contract stands for election and gets elected, he should be deemed to have acquired an interest in a subsisting contract in his capacity as a member. This is one way of looking at it, but, in our view, it is unnecessary to rely on any fiction, even a limited one, for, the language of Section 28 is plain as it stands. Ambiguity is sought to be imported into it by reading it along with the corresponding provisions in the District Municipalities Act particularly Section 51 and certain observations thereon in the Full Bench decision of this Court in Selvarangaraju v. Doraiswami Mudaliar ILR (1929) Mad. 732. The question in fact is not res integra but has been the subject of recent decisions in Panchayat Board of Sembakkam v. Gengadaran I.L.R.(1962) Mad. 1016 and Balusamy v. Election Court, Udumulpet ILR (1967) 2 Mad. 398.

Before referring to the decisions, it may be convenient to take up the relevant provisions of the Act. They are found in a group of sections under the subheading, qualification, disqualification etc., of members beginning with Section 22. Section 22 which deals with the qualification of candidates provides that no parson shall be qualified for election as a number of a panchayat unless his name appears on the electoral roll of the panchayat. This is a positive qualification. Then the Act specifies matters which disqualify a person thus qualified from standing for election. Of this we may leave out Section 23, for Section 24 which deals with disqualification of persons convicted of election offences. Persons convicted of the offences referred to in the section are disqualified from voting or from being elected in any election to which the Act applied or from holding the office of member of a panchayat or of a panchayat union council for a period of five years from the date of his conviction.: Section 25 which specifies disqualification of candidates provides by Sub-section (1), that a person who has been sentenced by a criminal Court to imprisonment for any offence involving moral delinquency such sentences not having been reversed shall be disqualified for election as a member while undergoing the sentence and for five years from the date of the expiration thereof. Sub-Section 2 deals with a number of other disqualifications. Under this Sub-section a person shall be disqualified for election as a member if at the date of nomination or election he is affected by any of the disqualifications specified in the sub-section. In this case we are concerned with the disqualification specified in Section 25(2)(c). Section 25 (2)(c) provides that a person would be disqualified if he is interested in a subsisting contract made with, or any work being done for, any panchayat or any panchayat union council except as a shareholder (other than a director) in a company. Section 26 deals with disqualifications of members, that is, disqualification that affects a person after he has become a member. It provides that subject to the provisions of Section 28, a member shall cease to hold office as such if the member suffers any of the disqualifications specified therein. Corresponding to Section 25(2)(c), Section 26 provides by Clause (d) that a member shall cease to hold office as such if he acquires any interest in any subsisting contract made with, or work being done for any panchayat or any panchayat union council except as a shareholder other than a director in a company or except as permitted by rules made under the Act. Taking the disqualification now under considerations found in Section 25 (2)(c) and Section 28 (d), a person qualified to stand as a candidate, his name being on the electoral rolls of the panchayat, may on the date of the nomination or election if he be interested in a subsisting contract or work being done for the panchayat or panchayat union council, get himself disqualified for election as a member. Or, a person while suffering from no disqualification on the date of the nomination or election may subsequently get interested in a contract made with or any work being done for the panchayat or panchayat union council and become disqualified after being duly elected as a member. Section 25 postulates the pre-election qualification for valid election as a member, and Section 26 deals with matters that would disqualify a person who was qualified at the time of the nomination and election and had validly become a member, that is with post-election or supervening disqualifications. In the former case, that is in cases falling u/s 25, there can be no valid election, may be the disqualifications not being noticed, the election had gone through unchallenged. Then we come to the crucial Section 28 which runs thus:

Whenever it is alleged that any person who has been elected as a member of a panchayat or who becomes a member of a panchayat union council is not qualified or has become disqualified under Sections 22, 24, 25, 26 or 27A and such person does not admit the allegation or whenever any member is himself in doubt whether or not he is qualified or has become disqualified for u/s 24 25, 26 or 27A such member or any other member may and the executive authority or the commissioner as the case may be shall, on the direction of the panchayat or panchayat union council or of the Inspector apply to the prescribed Authority whose decision shall be final Pending such decision the member shall be entitled to act as if he is qualified or was not disqualified.

As it stands we do not find any serious difficulty to the interpretation of this section, Section 28 first part, may be availed of to unseat a member whenever it is alleged that any person who has been elected as a member of a panchayat or who becomes a member of a panchayat union council is not qualified or has become disqualified, and he does not admit it. The qualifications and disqualifications referred to are to be found in Sections 22, 24, 25, 26 and 27A. Section 22 & Section 25 statedly deal with qualifications and dis. qualifications of candidates. Several of the disqualifications say like those in Sections 24, 25 (1) (25) (2)(a) and (c) and the want of the qualification specified in Section 22 may continue in a person even after the election. Sections 26 and 27A deal specifically with post election disqualifications. The words in Section 23 is not qualified or his become disqualified have to be applied in the context of the several qualifying or disqualifying sections specified and related appropriately. Having regard to the juxtaposition of the words, is not qualified and has become disqualified in relation to a person who has been elected as a member, it is clear that disqualifications or want of qualification alleged to be present at the time of nomination or election, and disqualifications alleged to have been suffered by a member after his election are all provided for disputation and decision u/s 28. The words, is-not qualified refer to an existing disqualification in a member without reference to the point of time when it arose, whereas the words has become disqualified indicate that the disqualification is a subsequent happening. When it is said that a person elected as a member has become disqualified, it clearly means that the member after election has become subject to the disqualification. Course for the Appellant would make a point, that the words used are, is not qualified and not is disqualified. In our view, in the context of the user there is no difference between the expressions, is not qualified and is disqualified. The words is not qualified takes in both absence of positive qualification like the one specified in Section 22 and the existence of disqualifications specified in Sections 24 and 25. There is nothing inappropriate in referring to a person who is qualified to be a candidate u/s 22 as a person who is not qualified if he suffers from any of the disqualifications for a candidate specified in Section 24 or 25.

No doubt the disqualifications that exist at the time of the nomination or election, can be challenged by an election petition as provided for under the rules made in the exercise of the powers conferred by Section 178 of the Panchayat Act. But the election petition could be filed only by a candidate or an elector whereas Section 28 entitles not only a member of the panchayat or panchayat union council but the executive authority or commissioner as the case may be, to get an adjudication as to the qualification of a person to continue as a member. The scope of the jurisdiction and the reliefs provided for on an election petition are different from the enquiry u/s 23. The Appellant''s Counsel relies upon the Full Bench decision of this Court in Selvarangaraju v. Doraiswami Mudaliar ILR (1929) Mad. 732 under the corresponding provisions of the District Municipalities Act, Sections 49, 50 and 51 corresponding to Sections 25, 26 and 28 of the Panchayat Act. Apart from the fact that the Full Bench decision in our view does not support the Appellant''s contention, the language of Section 51 is different and the observation therein on the scope of that section need not be applied to Section 28 of the Panchayat Act with which we are now concerned. The relevant part of Section 51 of the District Municipalities Act, the subject of Full Bench, ran:

Whenever it is alleged, that any person who has been elected or appointed as a council or is disqualified u/s 49 or Section 50 and such person does not admit the allegation or whenever any councilor is himself in doubt whether or not has he become disqualified for office, etc, etc,

In Section 51 we have only, the expression is disqualified whereas we have under the Panchayat Act the expressions, is not qualified and has become disqualified placed in juxtaposition to bring out the intention of the Legislature without any ambiguity. In fact the Full Bench has not accepted the contention now put forward on behalf of the Appellant that Section 61 referred only to post election disqualifications. The contention before the Full Bench was not that Section 51 did not provide for adjudication of pre-election disqualifications, but that an elector cannot in an election petition seek to set aside an election on the ground that the elected candidate was disqualified even at the time of the nomination, and that the question could be mooted only by the council or by the Chairman, that is, persons, connected with the municipality u/s 51 before the District Judge. In the case before the Full Bench ah election petition was filed challenging the election of, the Petitioner on the ground at the time of the nomination he was an Honorary Magistrate in a Bench Court and thus disqualified under Sections 49(2)(4) of the District Municipalities Act similar to Section 25(2)(e) of the Panchayat Act. On the election petition being allowed, it was contended in revision before the Full Bench that no election petition lay and that the matter could be dealt with only u/s 51 The Respondent argued that Section 51 referred only to post election disqualifications. The referring Judge Packenham Walsh J. felt that the contention for the Petitioner was against the plain words of Section 51 which contemplated all disqualifications, both under Sections 49 and 50. In the Full Bench, Wallace J. posed the question for decision thus:

Whether an elector in an election held under the Madras District Municipalities Act of 1920 can, in an election petition before the Subordinate Judge or District Judge urge as a ground for setting aside the election that the elected candidate was disqualified u/s 40 or Section 53 of the Act or can this matter be moved only by a councillor or by the Chairman u/s 51 and before the District Judge alone.

The learned Judge Wallace J., observed (at page 740):

However, the general sense of the section seems to be that when any question arises whether a person elected as councillor was disqualified u/s 49 at the time of nomination or election, or has since the election become disqualified u/s 50, the matter should be moved before the District Judge by a councillor or the Chairman. The question is whether that section is exhaustive so that the ordinary voter, when the election has resulted in the election of a can I late whom he regards as disqualified cannot agitate that matter in an election petition. It would seem strange if he could not and unless the Act and rules make it abundantly clear he cannot,

I should hold that no such prohibition exists.

Proceeding the learned Judge said (at page 742):

I think it (Section 51) applies to cases where the election has gone through without challenge and something has occurred thereafter which raises doubt about the qualification of some sitting councillor. The election Court decides whether or not there has been a proper election of a properly qualified candidate and its decision on that point is final. The District Judge u/s 51 decides where an election has not been challenged and has stood, whether subsequent doubts as to the qualification of any councillors are justified and his decision on that point is final.

The learned Judge Anantakrishna A Yyar J., in the Full Bench inter alia emphasised that the remedy provided by Section 51 would be availed of only by a councilor; it is not open under that section, to any voter or candidate to take action or move the District-Judge. He observed (at page 745).

It is clear that the rival candidate, who would be entitled to be declared elected if the returned candidate be held to be disqualified u/s 49 of the Act, could not have his proper rights secured to him, unless such a matter could be enquired into by means of an election petition.

The Full Bench decided that the disqualification u/s 49 could be made a ground for a petition impugning the election under rule I and rule II (c) of the rules of the decision of disputes as to the validity of an election and there was nothing u/s 51 to preclude such a course. We are unable to see anything in this Full Bench decision running counter to the view we are taking on the language of the Panchayat Act which we are called upon to consider. The contention before the Full Bench was that once an election had successfully gone through, as there was provision for enquiry in Section 51 of pre-election disqualifications also an election petition was not competent. It is this contention that was rejected. The Full Bench did not decide that for a pre-election disqualification an election petition is the only remedy.

As we observed earlier, the matter has been the subject of consideration by more than one Division Bench of this Court. In Panchayat Board, Sembakkam v. Gengadaran ILR (1962) 1 Mad. 1016 a question arose with reference to identical provisions in the Village Panchayat Act of 1950, whether Section 19(1) corresponding to the present Section 28(1) applied only to disqualifications arising after the election of a member or whether it applied also to disqualifications which existed prior to election. After referring to the Full Bench decision Seloaranga Raju v. Doraiswamy Mudaliar ILR (1929) Mad. 732 the learned Judges held that the word has become in Section 19 (1) of the Panchayat Act, 1950. have reference to post election disqualifications specifically mentioned in the appropriate Sections 13 15, 16 and 17 of the Act, corresponding to Sections 22, 24, 25 and 26 of the present Act and the phrase is not qualified was comprehensive enough to cover all the disqualifications mentioned in the fascicule of sections irrespective of when they arose, provided that they exist in the member on the date of the application for disqualifying him u/s 19(1). For dealing with an application to disqualify a member u/s 19 of the Act, the disqualifications mentioned in Sections 13, 15, 16 and 17 will apply irrespective of the fact whether they arose before or after the election. The learned Judges pointed out that neither Coutts Trotter C.J., nor Wallace J., in the Full Bench considered that Section 51 will apply only to disqualifications that arose after election and that they were really concerned with the forum where relief had to be sought in regard to disqualifying an elected member and not with the time of acquiring the disqualification.

Again in Balusamy v. Election Court, Udumalpet ILR (1967) 2 Mad. 398 when it was contended that the rules for the decision of the election dispute relating to panchayat were inconsistent with Section 28 of the Act and have, therefore, to be struck down as null and void, it was held referring to the corresponding provisions of the District Municipalities Act which was relied upon, that if the disqualification was not noticed and no objection was raised on the score resort should be had to Section 51 and that the existence of Section 51 did not preclude an elector from filing any election petition. If follows that the Judicial Authority had jurisdiction u/s 28 of the Panchayat Act to decide a dispute raised, that a member was disqualified for election as a member u/s 25(2)(c) on the date of the nomination and election and that the disqualification had continued after the election.

In the result, the writ appeal fails and is dismissed No costs.