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M.S. Avadhani Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 22 of 1953
Judge
Reported inAIR1954Kant18; AIR1954Mys18
ActsMysore Town Municipalities Act, 1951 - Sections 14, 14(1)(A), 14(2), 14(3) and 20; Constitution of India - Articles 190(3), 191, 192, 192(1), 193 and 226; Election Rules - Rules 2, 4, 5, 6, 8 and 10; Representation of People Act, 1951 - Sections 7
AppellantM.S. Avadhani
RespondentState of Mysore and ors.
Appellant AdvocateNittoor Srinivasa Rao, Adv.
Respondent AdvocateAdv. General and ;V.K. Gobindarajalu, Adv.
Excerpt:
.....ought to have challenged before duly constituted authorities like the returning officer and the election commissioner and the high court. stringent provisions like those embodied in section 14, clause (1) a (3), i. it is urged that a writ like the one now sought cannot be issued against the government. it is next urged that while passing orders like the present one the government or its minister is not acting in a judicial or quasi-judicial capacity but is only making an executive or administrative order. prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognised principles, of approach are required to be followed. but on appeal the supreme court while setting aside the 'writ' on the ground that the madras high..........at that election may apply, together with a deposit of fifty rupees as security for costs to the election commissioner appointed by the government in this behalf for the determination of the validity of the election. the election commissioner has large powers of summoning and enforcing the attendance of witnesses and to compel them to give evidence as if he were a civil court and for confirming or amending the declared result of the election, or setting the election aside. an appeal lies to this court from the order of the election commissioner provided it is only on a point of law and is preferred within one month from the date of such order. to accept the respondents' arguments would lead to a most uncertain state of affairs which could certainly have not been the scheme of the act,.....
Judgment:

Vasudevamurthy, J.

1. The petitioner offered himself as a candidate for election to the Town Municipal Council, Hiriyur, and was declared duly elected at the elections on 12-3-1952. On 5-5-1952 there was an election for choosing a President of the Council and the petitioner stood as a candidate and was declared duly elected then also. Thereupon he appears to have entered upon his duties as President.

Subsequently on 20-8-52 respondents 3 to 5 who are described as three other Municipal Councillors made an application to the Government purporting to be under Section 14, Mysore Town Municipalities Act, 22 of 1951, praying that the Government should declare that a vacancy had arisen in regard to a Municipal Councillorship of the 11th Division of the town out of which the petitioner had been elected and seeking his removal from the office of the President. On that application the Minister for Public Health and local Self-Government passed an order on 19-1-53 holding that Sri M. S. Avadhani, the petitioner, stands disqualified being less than 25 years of age. That order purports to have been passed under Section 14 (1) (A) (e), Mysore Town Municipalities Act. This disqualification continued to exist and therefore his seat was to be declared vacant by the Government. The petitioner has therefore filed this petition under Article 226 of the Constitution of India praying for the issue of a 'Writ' of 'certiorari' quashing the Government Order dated 19-1-53 or such other proper 'writ' as the Court may deemfit.

2. The petitioner has in his affidavit accompanying the petition described the procedure adopted in accordance with the relevant election rules and those facts are not disputed. The electoral roll of the Hiriyur Town Municipal Council was published on 25-1-1952. The final list of voters was published on 18-9-52.

Rule 2 of the Election Rules issued by the Government on 25-9-1951 and published in the Mysore Gazette dated 27-9-1951 provides that two months prior to the date of the expiry of the term of office of the municipal councillors, the Returning Officer, who is the Amildar of the Taluk in which the Municipal Council is situate, shall prepare for every division an electoral roll in which shall be included the names of all persons appearing to be entitled to be registered therein. It should be published in the Division together with a notice specifying the mode in which & the time within which claims for inclusion in the roll or objections to any names or particulars entered in the roll are to be preferred.

Under Rule 4 the electoral roll for each constituency should be prepared in Kannada in Form I, and under Rule 5 it shall contain the number and name of division, the name of each elector, the name of the father of each elector, or if the elector is a woman the husband's name, or other identifying particulars, and the sex, the 'age' of each elector and the number of the house at which he resides. The electoral roll is to be given wide publicity under Rule 6 by publication at the Municipal Office, Taluk Office and in such other conspicuous place in each division as the Returning Officer may deem fit, and any person whose name is not entered in the roll or is entered incorrectly, or any person who objects to the inclusion of his own name or the name of any other persons in the roll, has to prefer a claim or objection to the Returning Officer. All such claims and objections are to be made in writing and within 14 days from the date of the publication accompanied by any documents on which the claimant or objector relies.

Under Rule 8 the Returning Officer is bound to hold a summary enquiry into the claims or objections preferred and has to record his decision in writing; and that rule provides expressly that for the purpose of the Returning Officer's enquiry, the roll as published, shall be presumed to be correct and complete until the contrary is proved. The Returning Officer will then decide on all claims and objections and the orders passed by him are declared to be final under Rule 10. The Returning Officer has then to publish the final electoral roll with the said amendments in the same manner as is set out above and with the same publicity within 10 days from the last date of the receipt of objections, and a copy of the final electoral roll duly certified by the Returning Officer should be forwarded by him to the Deputy Commissioner for deposit in his office. Section 14 (1) (A) (e), Town Municipalities Act provides that no person shall be qualified for being chosen and for being a councillor who is less than 25 years of age.

3. It is undisputed that the petitioner's age was shown as 27 years in the preliminary as well as in the final electoral roll and that nobody then ever thought of disputing it. After he was declared duly elected no application was made contesting his election on the ground of under-age or any other ground. Later when he stood for Presidentship and was duly elected as such also neither the respondents nor anybody else took up the matter in appeal to the Deputy Commissioner as provided by Rule 10 of the Rules framed for the election of a President and Vice-President of a Town Municipal Council within 7 days of the election. The petitioner complains that without resorting to any of the above remedies provided by the statute respondents 3 to 5 made an application before Government months after all the abovementioned remedies were barred and that the order of the Government passed on such an application was entirely without jurisdiction and was wholly void.

4. This petition is opposed by respondents 3 to 5 as well as by the learned Advocate-General on behalf of the State though the latter has not filed any formal objections to the petition as others have done. In the main the question is to be decided by a reference to Section 14, Mysore Town Municipalities Act. Section 14 (1) (A) sets out certain general disqualifications for being chosen as and for being a councillor; and Clause (1) concludes that if any person is elected as a councillor in contravention of those provisions his seat shall be deemed to be vacant, and to that a proviso is added that nothing in that section shall invalidate the election if the disqualification is such as could have been brought to the notice of the Returning Officer at the time of or before the scrutiny of the nomination papers and has not been so brought to his notice. Clause (2) provides that in the event of any councillor during the term for which he has been elected or appointed 'becoming subject' to any of those or other disqualifications he is disabled from continuing to be a councillor and his office shall become vacant. Clause (3) provides that if any question or dispute arises whether a vacancy has occurred under that section, the orders of the Government shall be final for the purpose of deciding such question or dispute; and it is on the interpretation and effect to be given to the proviso and to Clause (3) that most of the arguments on behalf of both the petitioner and the respondents have been addressed.

5. In our opinion the proviso means that if a person, who is not qualified for being chosen as or being a councillor, his seat shall be deemed to be vacant but that, however, under the proviso his election is not invalidated if the disqualification is such as could have been brought to the notice of the Returning Officer at the time or before the scrutiny of the nomination papers and is not so brought to his notice. Clause (2), in our opinion, could only apply to cases of any disqualification attaching to a councillor during the term for which he has been elected or appointed or to vacancies arising out of such disqualification which could not have been brought to the notice of the Returning Officer at the time or before the scrutiny of the nomination papers.

6. It has been strenuously contended for respondents 3 to 5 that if they had no knowledge of the disqualification before at the time of scrutiny of the nomination papers and could not therefore bring it to the notice of the Returning Officer, they could later on raise it before the Government at any time during which the councillorwould be in office either as councillor or as President.

7. Section 20 of the Act provides that within a very short time after the date of declaration of the result of an election, any candidate who stood for the election or any ten persons qualified to vote at that election may apply, together with a deposit of fifty rupees as security for costs to the Election Commissioner appointed by the Government in this behalf for the determination of the validity of the election. The Election Commissioner has large powers of summoning and enforcing the attendance of witnesses and to compel them to give evidence as if he were a civil Court and for confirming or amending the declared result of the election, or setting the election aside. An appeal lies to this Court from the order of the Election Commissioner provided it is only on a point of law and is preferred within one month from the date of such order. To accept the respondents' arguments would lead to a most uncertain state of affairs which could certainly have not been the scheme of the Act, much less of any notions of fairness and finality of elections. Unless one is compelled to accept such a construction one would be loath to do so. The proviso would then have no meaning at all.

8. The learned Advocate-General could not say what in those circumstances would be the use of the proviso. But he suggested that if the disqualification was one which was known to the persons who challenged the election at or before the scrutiny of nomination papers and if they did not bring it to the notice of the Returning Officer they may be barred from raising it.

9. Some disqualification may arise or come into being or be discovered between the date of the scrutiny of the nomination paper and the elections or the declaration of the result. Such disqualifications, it may be, could not be put forward as grounds of objection before the Returning Officer or the Election Commissioner. The disqualifications referred to in the proviso are not defined as such as were not within the knowledge of the objectors but subjectively such as could have been brought to the notice of the Returning Officer.

Those words refer to the nature of the disqualification and not the capacity of the objectors. If the question of knowledge of the objectors was to be the criterion or intention of the legislature the proviso would have been differently worded and we would have expected some stringent provisions such as periods of limitation, proof of the want of knowledge earlier, the nature and extent of the interest of the objector who is bringing the objection to the notice of the Government etc.

Moreover neither in their application to Government nor in their objections in this Court have the respondents stated that they came to know of this petitioner's disqualification only after the election and just before making their application to Government.

10. There would really be no hardship or injustice if an interpretation is placed on that proviso and on Clause (3) in the way canvassed for it for the petitioner. The objectors would have a chance of putting forward their objections before the Returning Officer at the time of or before the scrutiny of the nomination papers. They or any ten persons of the town could take up the matter in appeal to the Election Commissioner and from his decision appeal to this Court. To hold otherwise would give a handle to any person irrespective of any interest he may have in the election to move the Government by an application without any safeguard of deposit or further appeal to the High Court at any time he chooses to nullify a duly held election which he could and ought to have challenged before duly constituted authorities like the Returning Officer and the Election Commissioner and the High Court. This, in our opinion, would lead to injustice and absurd consequences. As pointed out in Maxwell's Interpretation of Statutes no interpretation should be put on a statute which would lead to such consequences if it could be avoided. See Maxwell's Interpretation of Statutes 194G Edn., pp. 207-208 and 212-213.

11. Mr. Govindarajulu, learned counsel for respondents 3 to 5, admitted that it may be so, but contended that if Section 14(3) vested in Government the sole and absolute power to declare finally that a vacancy had arisen it was not within the province of any Court to deny them that power.

As against this it must be pointed out that the whole scheme of the Act has been designed with a view to afford a very large measure of internal autonomy to the Municipal Councils and for non-officials to manage their own affairs and to foster and encourage local Self-Government. Stringent provisions like those embodied in Section 14, Clause (1) A (3), i.e., holding an office of profit under the Government of India or the Government of State and Clause B(a) being a subordinate officer or servant of Government, have been provided in the Act obviously with a view to avoid the Government or its officers or supporters having any hand in its day to day management though of course Government has been entrusted with certain powers of superintendence and control over the Municipal Councils to prevent the abuse of the powers vested in them or to provide for a break down of the administration of the Council.

The Government has nowhere in the Act been given such large end unfettered powers as is now sought for it by the respondents to interfere with the result of elections duly held and confirmed. Such a power, as urged for the petitioner, may tend to make the elections a meaningless farce and place the members of the Council who have been duly elected by their constituencies in ever present, and constant danger of being unseated under the provisions of Section 14, Clause (3) at the intervention of any person who may not have either cared or ventured to question it before the Returning Officer or the Election Commissioner.

12. It is contended for the respondents that this is not a case in which a writ ought to or can be issued. It is urged that a writ like the one now sought cannot be issued against the Government. It has been recently held by a Pull Bench of this Court in -- 'Sampu Gowda v. State of Mysore' AIR 1953 Mys 156 (FB) (A), that a writ can be issued against Government in proper or appropriate cases under Article 226 of the Constitution to cancel an order passed by them without jurisdiction.

It is next urged that while passing orders like the present one the Government or its Minister is not acting in a judicial or quasi-judicial capacity but is only making an executive or administrative order. It has been pointed out by the same Full Bench case of this Court that this Court has power to interfere in the cases of even so-called administrative orders which are made in defiance of the articles of Constitution or the mandatory provisions of law and without any jurisdiction. Where orders are passed or action is taken under a statute or an Act of the Legislature by a Court or tribunal which is vested with the power to take and enforce decisions regarding the rights between rival parties who appear before the tribunal or between them and the State, then proceedings, orders and action cannot be said to be executive.In -- 'Avadesh Pratap Singh v. State of Uttar Pradesh' : AIR1952All63 (B), it has been observed:

'It follows therefore that by the phrase 'acting judicially' what is meant is not merely strictly judicial acting but also Quasi-judicial acting or in other words an acting analogous to judicial acting.'

In that case the Government were acting under the Court of Wards Act.

In -- 'Province of Bombay v. Khushaldas S. Ad-vani' : [1950]1SCR621 (C), it has been pointed out that when the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. When the law under which the authority is making a decision itself requires a judicial approach, decision will be quasi-judicial.

Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognised principles, of approach are required to be followed. Therefore, wherever any body of persons having legal authority to determine questions affecting rights of subjects and haying the duty to act judicially, act in excess of their legal authority a 'writ' of 'certiorari' may issue.

13. It is very difficult to accept (he argument that the order of the Government or the Minister who has got to decide a question of so vital and valuable interest to the petitioner, and the electorate, in pursuance of a statutory power or duty cast on the Government to do so under the Town Municipalities Act is one which is merely executive or administrative and incapable of correction under Article 226 of the Constitution in appropriate cases.

In -- 'Election Commission, India v. Saka Venkata Rao' : [1953]4SCR1144 (D), one Saka Venkata Rao had been convicted by the Sessions Judge of East Godavari and sentenced to a term of seven years' rigorous imprisonment in 1942. He offered himself as a candidate at a by-election to a reserved seat in the Kakinda constituency of the Madras Legislative Assembly in June 1952. But realizing that he was disqualified under Section 7 (b), Representation of the People Act, 1931 as five years had not expired from the date of his release on the Independence Day, 15-8-1947, he applied to the Election Commissioner for exemption. No reply to his application having been received till 5-5-1952, the last date for filing nominations, he filed his nomination on that day. No objection was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers. The election was held on 14-6-1952 and Venkata Rao who secured the largest number of votes was declared elected on 16-6-1952. The result of the election was published in the Fort St. George Gazette (Extraordinary) on 19-6-1952 and he took his seat in the Assembly on 27-6-1952. Meanwhile, the Cam-mission had rejected his application for exemption and communicated such rejection to him by a letter dated 13-5-1952, which, however, was not received by him. On 3-7-1952 the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice for such action as he may think fit to take the fact that Venkata Rao's application for exemption had been rejected.

A question was then raised as to his disqualification and the matter was referred to the Governor of Madras who forwarded the case to the Commission for its opinion as required under Article 192 of the Constitution. Venkata Rao thereupon challenged the competency of the reference and the action taken by the Governor. Nevertheless, the Commission notified Venkata Rao that his case would be heard on 21-2-1952. Accordingly the Chief Election Commissioner went down to Madras and partly heard the matter and adjourned it to 23-8-1952. On the same day (21-8-1952) Venkata Rao applied to the High Court under Article 226 of the Constitution contending that Article 192 of the Constitution applied only where a member became subject to a disqualification after he was elected but not where, as in his case, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before the Election Tribunal.

The Madras High Court issued a 'writ' as prayed for. But on appeal the Supreme Court while setting aside the 'writ' on the ground that the Madras High Court had no territorial jurisdiction to issue such a 'writ' to the Election Commissioner at Delhi observed that Article 191 of the Constitution which lays down the same set of disqualifications for election as well as for continuing as a member, and Article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications. It did not, however, necessarily follow that Articles 190(3) and 192(1) must also be taken to cover both. In their opinion those two articles went together and provided a remedy when a member incurred disqualification after he was elected as a member. 'Not only do the words 'becomes subject' in Article 190(3) and 'has become subject' in Article 192(1)', they said,

'indicate a 'change in the position' of the member 'after' he was elected, but the provision that his seat is to become 'thereupon' vacant, that is to say the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the Article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in Article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and far-fetched construction and cannot be accepted'.

In Article 190(3)(a) the words are 'becomes subject to any of the disqualifications mentioned in Clause (1) of Article 191' In Article 192(1) also the words are 'has become subject to .....' The wordsin Section 14(1)(A), Mysore Town Municipalities Act, 1951 'No person shall be qualified for being chosen as, and for being, a councillor .....(e) whois less than twenty-five years of age' and in Section 14(2) 'If any councillor during the term for which he has been elected or appointed ....(a) 'becomes'subject to any disqualification specified in Sub-section (1).....(d) A councillor whose office 'hasbecome vacant' under this sub-section shall, if his disability has ceased, be eligible for re-election or re-appointment' are very similar to the words found in Articles 190(3)(a) and 192(1) of the Constitution. We therefore think that that decision fully supports the petitioner.

14. It was urged for the respondents that according to the order of the Government which was passed on a report of the Deputy Commissioner, the age of the petitioner was less than 25 years on the date when the Government passed their order and this circumstance should disentitle the petitioner to the relief of a 'writ'. If the Government had no jurisdiction at all to embark about this particular disqualification any materials which might have, been tendered by the respondents or oven by the petitioner, may be under protest, cannot be looked into or taken into account for the purpose of determining the right of the petitioner to have those proceedings themselves quashed as being without Jurisdiction.

It is also urged that neither the report, nor the order of the Government, have taken into consideration some evidence which the petitioner placed before the Deputy Commissioner in obedience to a notice issued to him and the finding of the Deputy Commissioner is therefore wrong. The Government themselves have recorded no evidence and there is no provision in Section 20 of the Act or elsewhere for any report of the kind to be made to them by the Deputy Commissioner or the same to be acted upon by the Government in such a matter. The point at issue is whether the Government had jurisdiction to consider the present disqualification with which we are concerned in this case and if they had no such power the proceedings would have to be quashed.

15. In the result we direct that the order of Government No. L. 17867-71/ML. 65-52-2 dated 19-1-1953 declaring that the petitioner was disqualified from being chosen or acting as a Councillor and that, therefore, there is a vacancy under Clause (3) of Section 14 be quashed. Respondents 3 to 5 will pay the costs of the petitioner (Advocate's fee Rs. 100/-). Respondent l will bear his own costs.

16. Order quashed.


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