Veeriah Ambalam vs Karuppan and another

Ramachandra Iyer, C.J.—This appeal, which is filed against the judgment of Veeraswami, J., raises an interesting question of election law. Allur Panchayat in Ramanathapuram Dt., which was constituted under the Madras Village Panchayats Act of 1950 consists of seven members. During the last election that was held on 20th November 1958, the appellant the first respondent and five others were elected as members of the Panchayat. The Panchayat had to elect its President and a meeting for the purpose was convened first on 27th November 1958. Although notice of the meeting was sent to all the members none but the appellant turned up for the meeting, and, there not being the requisite quorum, the meeting was adjourned to 16th January 1959. Under R. 2 (2) (ii) of the rules relating to the conduct of election of Presidents and Vice-Presidents to Panchayats, notice of the meeting for the adjourned date also shall be served on the members. This was done in the case of six members. In regard to the first respondent, who was the other member, notice appears to have been issued from the office of the Panchayat, but, it has been found, a finding which we accept, that such notice though pretended to have been served on the first respondent was not actually so done. An acknowledgment of service was produced on behalf of the appellant and that was found to be a forged one. The first respondent not being served with the notice, and, presumably not being aware of the date fixed for the meeting did not attend it. Even amongst others, three of them who were served with notice did not attend, with the result the remaining three alone of whom the appellant was one attended the meeting. The appellant was elected as the President on that day. The first respondent, who it is said was himself an aspirant for the office of President, filed an application to the Election Commissioner, Sivaganga (District Munsif) to set aside the election. The Election Commissioner as stated earlier found that there was no service of the notice of the meeting on the first respondent, that the purported acknowledgment of service relied on was a forgery. But, he held that as the failure to send the notice resulted in the loss of only one vote, viz., that of the first respondent at the meeting, the result of the election could not beheld to have been materially affected. He therefore upheld the election and dismissed the petition.

The first respondent, feeling aggrieved by the order, initiated proceedings in this Court under Art. 226 of the Constitution to quash it. Veeraswami, J., who disposed of the petition, held that the non-service of notice on a member of the Panchayat resulted in the meeting itself not being a legally convened one, and that the election of the appellant at that meeting was liable to be set aside. The learned Judge issued a writ of certiorari quashing the order of the Election Commissioner.

The Village Panchayat is a corporation. It co-operate act can be done only in a meeting with its members present. For the purpose of convening a meeting it is essential that a due notice for the meeting should be given to all its members. Election of the President of the Panchayat, under the rules relating to election, is to be made only in a meeting duly convened for that purpose. If therefore, the meeting convened for that purpose of election is held to be illegal, the election at such meeting will automatically have to fall to the ground. Such a case should be distinguished from one where a meeting had been lawfully convened but an irregularity is committed in the course of the election. If such art irregularity is of the nature specified in R. 11 (c) the election can be set aside only if the result of it has been affected by the irregularity.

In Crew on "Public Company and Local Government Meetings" 16th Edn., page 7, the learned author states :

Notice of meetings : The meeting may concern only an elected or selected class of people, in which case due and adequate notice must be given to each member entitled to be present in strict accordance with the standing orders or rules of the body, organisation, or society affected, and such notice must be issued by the proper officer, person or authority. Where no definite notice is required by the rules, a reasonable notice must be given which will enable those whose duty it is to allow to have the opportunity of attending........The omission to summon one member to a corporate meeting avoiding the act of that meeting............Where a certain act is to be done by a particular body all the members entitled to attend must be summoned if they are within reasonable summoning distance, and the omission to summon any one so entitled will invalidate the proceedings unless all reasonable enquiries have been made and he cannot be found.

The rules provide for the service of notice on the members for a meeting of the Panchayat. In view of the finding that there has been no service of notice on the first respondent, it must follow that the meeting had not been validly constituted and the election of the appellant at such meeting cannot be held to be a valid election.

Mr. V. V. Raghavan, who appears for the appellant, contends that an election to a representative body once made cannot be set aside unless the rules warrant, and that as under R. 11, Sub-Cl. (c), an election in the case of non-compliance with the provisions of the Act or the rules made thereunder, should be set aside only where the result of the election had been materially affected by reason of such irregularity or non-compliance and, as in the present case even the presence of the first respondent, at the meeting could not have affected the result of the election, the election could not be set aside.

In putting forward this contention learned Counsel is obviously under a misapprehension. As indicated earlier, the non-observance of the rules as to election is different from those illegalities which go to the soot of the election itself. If, for example, if a process is gone through which is not an election at all in the eye of law, it cannot be stated that the burden will be upon the person who challenges the election to show that the result would have been different if the election had been conducted in accordance with the law. In such a case, the election has got to be set aside, not for the reason that the result of the election had been vitiated by the non-observance of the rules, but, on the ground that it was not an election at ail. Recently we came across such a case in W. A. No. 10 of 1960. The position will however be different where the irregularity complained of relates only to the actual process of election.

Mr. Raghavan refers in this connection to the decision reported in Ramamurthi v. Ootacamund Municipal Council 67 M.L.J. 809= 40 L.W. 865. In that case there was a meeting of a Municipal Council for the purpose of electing a chairman. The Vice-chairman who presided on the meeting found that there was no valid notice to two of the Councillors who were actually present and for that reason adjourned the meeting. But soon after the meeting had been adjourned some of the other members continued the meeting and elected a particular person as chairman. That election was challenged before the Election Commissioner who found that the subsequent meeting was valid one and upheld the election. This adjudication of the Election Commissioner was challenged by an application in this Court for the issue of a writ of certiorari. Pandrang Row, J., held that in proceedings taken for the issue of a writ of certiorari it would not be competent for the Court to question the decision of the inferior authority, however erroneous, it might be, if it was acting within the ambit of its jurisdiction.

We cannot see how that decision at all helps us in the actual decision of this case. It will be noticed that even in regard to the facts of that case the two Councillors to whom notice had Dot been issued have actually come to the meeting. But that question apart, the decision was mainly based on the power of this Court to issue a writ of certiorari in matters within the competence of the Tribunal.

Reliance was then placed on the decision in Palaniappa Chettiar v. Krishnaswami Chettiar 48 M.L.J. 696-- 22 L.W. 429, where the order of the lower Court, setting aside an election without considering whether the result of the election had been materially affected and without even any evidence to that effect, was set aside by this Court. That decision was concerned with a non-compliance with the rules, in the process of election. Ahmed Thambi Marakayar v. Basava Marakayar 44 M.L.J. 69= 16 L.W. 898, was then referred to. That decision too presupposes an election in accordance with the law. When there has been no such election there would be no scope for application of that rule. Coming to the facts of the present case, there can be an election only if there has been a valid meeting. If, as it is now found, there has been no valid meeting of the Panchayat, there would be no election at all as contemplated by the Act, and it will be competent for the Court to declare in such a case that the purported election is illegal. There are, therefore, no merits in this appeal which is dismissed with costs.