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Narra Lingayya Vs. Revenue Divisional Officer, Narsaraopet and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 548 of 1962
Judge
Reported inAIR1964AP433
ActsAndhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 - Sections 3(1), 4(1), 6, 6(1), 65 and 65(3); Constitution of India - Article 226
AppellantNarra Lingayya
RespondentRevenue Divisional Officer, Narsaraopet and ors.
Appellant AdvocateP.A. Chowdary, Adv.
Respondent AdvocateP. Babulu Reddy and ;I. Koti Reddy, Advs. and ;P. Ramachandra Reddy, 3rd Govt. Pleader
DispositionPetition dismissed
Excerpt:
.....to the statute, the complain) being merely that at a special meeting duly constituted the co-opted members were elected but such an election could not he valid because the er-officio members had not taken the oath of allegiance. on the contrary the following is the view expressed by ferris in his treatise on the law of extraordinary legal rermeidies, 1926 edition at page 397: it is well settled that questions of illegality or fraud in the conduct of an election already held or of illegal voting and the like, cannot be determined in mandamus proceedings. we are therefore of opinion that the challenge now put in issue could well form the subject-matter of an election dispute. but the practice is well established this court has never exercised a general power to enforce the..........referred to six members were co-opted at the election.immediately after the election of the co-opted members, notices were issued for the election of the president and the vice president on 30-5-1963 to all the members including the co-opted members. at the meeting held on 30-5-1962, all the members present, 33 in number, took their oaths of allegiance, and the president was elected at that meeting convened by the r. d. o. the petitioner alleges that there was no valid election of the co-opted members, respondents 2 to 7 at the special meeting held on 21-5-1962 as ex officio members that is to say, the presidents of all the panchayats in the martur block, had not taken the oath;, of allegiance as prescribed under section 65 of the act. in his affidavit he avers that there was no.....
Judgment:

Narasimham, J.

1. This is a petition praying for the issue of a Writ of mandamus directing the Revenue Divisional Officer Narsaraopet, to convene a fresh meeting of the members of the Panchayat Samithi, Martur, Guntur District for the election of members to he co-opted as specified in clause (iii) of Section (1) of Section 4 of the Andhra Pradesh Panchayat Samihis and Zilla Parishads Act, 1959 ( Act No. XXXV of 1959), hereinafter to be referred to as the Act,

2. The petitioner is a rate payer residing in Gannavaram within the Martur Panchayat Samithi area. The 1st Respondent herein is the Revenue Divisional Officer, Narsaraopet. Respondents 2 to 7 were co-opted as members at an election held by the 1st Respondent on 21-5-1962.

3. The circumstances under which the petition has been filed are these: The Government of Andhra Pradesh constituted the Martur Panchayat Board Samithi by a notification under Section 3 (1) of the Act with effect from 1-6-1962. On 21-5-1962 the Revenue Divisional Officer convened a special meeting of the Presidents of all the Pan-chayats in the Martur Block, who were ex-officio members of the Panchayat Samithi for the election of members specified in clause (iii) of Section (1) of Section 4 of the Act as contemplated under Section 6 (l) of the Act. Valid nominations were duly announced at the election that was conducted. At the special meeting no oath of allegiance to the Constitution of India was taken by the ex officio members referred to Six members were co-opted at the election.

Immediately after the election of the co-opted members, notices were issued for the election of the President and the Vice President on 30-5-1963 to all the members including the co-opted members. At the meeting held on 30-5-1962, all the members present, 33 in number, took their oaths of allegiance, and the President was elected at that meeting convened by the R. D. O. The petitioner alleges that there was no valid election of the co-opted members, respondents 2 to 7 at the special meeting held on 21-5-1962 as ex officio members that is to say, the Presidents of all the Panchayats in the Martur Block, had not taken the oath;, of allegiance as prescribed under Section 65 of the Act. In his affidavit he avers that there was no election in law on 21-5-1962 and that the interference of this Court is necessary for the issuance of a writ in the nature of a mandamus directing the R. D. O. to convene a special meeting afresh for the election of members to be co-opted under Section 4 (1) (iii) of the Act.

4. A counter-affidavit has been filed affirming that the elections were validly held and repudiating the allegations to the contrary and slating inter alia that no oath of allegiance was administered to the ex-officio members before the election of the co-opted members commenced, as the Samithi was not fully constituted by 21-5-1962 and no business was transacted by the Samithi as such.

5. The learned Government Pleader has raised a preliminary objection that inasmuch as the-election of co-opted members had taken place and the petitioner is questioning its validity, the proper remedy lies in filing an election petition as contemplated by Rule 47 of the Rules framed under the Act for the decision of election disputes. Ho points out that under sub-rule 11 (c) such an election shall be void if in the opinion of the Election Commissioner

'the result of the election has been materially-affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the rules made thereunder.'

He argues that in effect the petitioner's challenge comes within the meaning of an improper reception 'of votes and non-compliance with the provisions of the Act or the rules made thereunder and as such an election petition is an effective remedy prescribed under the Act and the rules mada thereunder. He would therefore contend that mandamus cannot issue when there is an effective remedy otherwise provided.

6. Sri Chowdary for the petitioner on the contrary has urged that he has properly chosen the remedy inasmuch as according to him the scheme of the election was contrary to the statute. He has relied on In re, Barnes Corporation, Ex Parte Hutter, 1933-1 KB 668.

In that case at a meeting of the council of a borough for the election of aldermen the chairman acting in pursuance of an arrangement to that effect previously made by the councillors, read aloud from the voting papers to the meeting only the surnames of the persons voted for and did not read there from the other matters therein contained in accordance with Section 60, Section (4) of the Municipal Corporation Act, 1882, namely the Christian names, places of abode and descriptions of these persons, and the names of the persons by whom the voting papers were signed, and as the result of the voting certain councillors were declared to have been elected aldermen and acted as such.

It was held that the chairman did not openly read the voting papers within the meaning of Subsection (5) of that section and that, instead of the Open election provided for by the Act, there had been a ballot or secret election which was not in accordance with the law and that further as there had been no lawful election and the offices of aldermen were unfilled, the proper remedy was not quo warranto, or an election petition under Section 87 of the Act, but a mandamus under Section 225 to hold an election of aldermen. At page 681 the Following occurs:

'It Is said by counsel for the respondents that, even if that be so, the case is not one for a mandamus, but for an election petition, and he relies upon Section 87 of the Act as supporting that view. It seems to me, however, that no part of that Section is applicable to this case. The question here is not whether certain persons were duly elected by a majority of lawful votes, but whe-ther the whole scheme of the election was not contrary to the character and to the statute.'

It is manifest that the teamed Judges bad reason to find that instead of an open election there was secret ballot and that such an election was contrary to the charter and the statute.

7. We do not consider that we could say in this case that there was an election contrary to the statute, the complain) being merely that at a special meeting duly constituted the co-opted members were elected but such an election could not he valid because the er-officio members had not taken the oath of allegiance. On the contrary the following is the view expressed by Ferris in his treatise on the law of Extraordinary Legal RermeIdies, 1926 edition at page 397: '

'It is well settled that questions of illegality or fraud in the conduct of an election already held or of illegal voting and the like, cannot be determined in mandamus proceedings.'

He cites certain English authorities in support of the said proposition. The Revenue Divisional Officer has affirmed that it is not provided in Section 6 (1) of the Act that the oath of allegiance should be administered to the ex-officio members before the election of the co-opted members and that further the Samithi was not fully constituted by the date of election and that no business of the Panchayat Samithi as such was transacted. We consider that there is considerable force in this affirmation as manifestly the Samithi was constituted only from 1st June, 1962, under Section 3 (1) of the Act and it cannot be posited that any business of the Samithi was transacted on 21-5-1962.

Further the plain language of Section 6 (1) of the Act does not indicate that the business of the Samithi was transacted on that day. We are therefore of opinion that the challenge now put in issue could well form the subject-matter of an election dispute. It is also fundamental that mandamus will not lie where there is another plain specific and adequate remedy in the ordinary course of the law. Having regard unto this proposition about which there can be no controversy and in the view that we are inclined to take, we may have to say that the remedy now sought is misconceived.

8. An objection is taken to the competency of the petitioner to maintain this application for mandamus. He is only a rate payer in the Panchayat Samithi area and at no material time was he associated with the election as such which he impeaches now. In R. v Guardians of Lewisham Union, (1897) 1 QB 498 at pp. 500, 501 Wright, J., observed thus:

'.......... I have always understood that the applicant, in order to entitle himself to a mandamus, must first of all show that he has a legal specific right to ask for the interference of the Court .... This Court would be far exceeding its proper functions if it were to assume jurisdiction to enforce the performance by public bodies of all their statutory duties without requiring clear evidence that the person who sought its interference had a legal right to Insist upon such performance.'

Bruce, J., who agreed with the said opinion, observed:

'..... but the practice is well established This Court has never exercised a general power to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal specific right to enforce the performance of those duties.'

9. The same basic reasoning is adopted by the Supreme Court in rejecting the application for a Writ of Mandamus or direction under Article 22 of the Constitution in State of Orissa v. Madan Gopal, : [1952]1SCR28 . ChiefJustice Kania has observed thus at page 35 of the report (SCR) ; (al p 14 of AIR):

'If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the cast- on its merits and come to a to a decision as to whether the petitioners succeeded in estabushing that there was an untringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature, and pending such determination it might have made a suitable interim order for maintaining the status quo ante, But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a Civil suit, it could not for the purpose of facilitating the institution at such suit, issue directions in the nature of temporary injunctions, under Article 226 of the Constitution. In our opinion, the language of Article 226 does not permit such an action.'

This ruling adumbrates two principles; Firstly the petitioner must establish that he has a legal right to seek the interference of the Court; and secondly, the existence of such a right is the foundation for the exercise of the jurisdiction of the Court order Article 226.

10. We may recall that that was also the view expressed in Charanjit Lal v Union of India, : [1950]1SCR869 That was also a case of prayer for a writ of mandamus. It would be sufficient to notice that the principle stated by Hughes, J., in McCabe v. Atchison, (1914) 235 US 151 was adopted. What was stated by Hughes, J., was set out thus at page 876 of the reports

'It is an elementary principle that in order to justify the granting of this extraordinary relief the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other person who may he injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant -- not to others-- which justifies indicial interference.'

11. We thus sec that the objection as to the competency of the petitioner to seek the remedy by a writ of mandamus is very well justified by consistent authority We have already indicated that the petitioner is just a rate payer in the Same the area and he had nothing to do with the election now called into question either directly on indirectly However, we do not finally express our opinion on this point as there are other good reasons why this petition cannot be accepted.

12. We now come to the main challenge to the co-option on the ground that the ex-officio members of the Panchayat Samithi i. e.. the Presidents of the Village Panchayats, did not fake oaths of allegiance- before the election of the co opted members on 21-5-62. Sri Chowdary argues that this constitutes an infraction of Section 65 and vitiates the election of the co-opted members

13. We may usefully peruse Section 65 of the Act in so far as it Is relevant:

'Section 65 (1) Every member of the Panchayat Samithi ...... shall, before taking his seatmake at a meeting of the Panchayat Samithi .......... an oath or affirmation of the allegiance to the Constitution of India in the following form namely:

x x x(2)*****(3) No such member shall take his seat at a meeting of the Panchayat Symithi ....................... or do any act as such member unless he has made the oath or affirmation as laid down in this section.'

Wo may also peruse Section 6 in juxtaposition as Sri Chowdhary very much relies on the words occurring in the said Section, Section 6, omitting the unnecessary portions reads as follows:

'Section 6 (1) The Collector shall, on a date not later than the date appointed for the constitution of the Panchayat Samithi under Section 3, or subject to the provision of Sub-section (3) of Section 3 .... convene at the Office of the Panchayat Samithi at the appointed time a special meeting of the members of the Panchayat Samithi specified in Clauses (i) and (ii) of Section (1) of Section 4 utter giving them a notice in writing of not less than ten clear days of such meeting for the election of the members specified in clause (iii) of Section (1) of Section 4.'

14. We may incidentally clarify that the election ol member, specified in Clause (iii) of Section (1) of Section 4 refers lo the election of the co-opted members, respondents 2 to 7 in this petition.

15. Sri Chowdary relies on Section 6 which sets out expresslv a special meeting of the mem hers of the Panchayat Samithi. He also relies on Section 65 Section (3) which mentions an act of a member of a Panchayat Samithi He correlates both in support of his argument. The learned Government Pleader argues that there is a fallacy in this reasoning for at least two reasons: Firstly, that the Panchavat Samithi came into being only on a future date. viz.. l-06-1962, and secondly, that the composition of the Panchayat Samithi as envisaged in Section 4 was incomplete on 21-5-1962. He would say that Section 65 is not attracted till the membership elections are over and till the Panchayat Samithi as such comes into being on 1-6-1962. He invites our attention to the use of the words 'meeting of the Panchayat Samithi the occurring in the relevant clause of Section 65 It seems to us that the contentions of the learned Government Pleader have to prevail Sections 85 comes into play when there is a meeting of the Panchayat Samithi as such and not before. There cannol he meeting of the Panchayal Samithi as such til) it comes into heing as and from the date of its constitution under Section 3 (1) of the Act If we accept the interpretation of Sri Chowdary, it would lead to a fallacy that the Panchaval Samithi, which is a body of members, would have been functioning, before it was validly constituted under Section 3 (1) of the Act and without its complement of members.

16. We may usefully refer to the relevant passage in Craies On Statute Law under the Caption 'Interpretation of Words', In Chapter V ofthe 5th Edition (1952) at page 151 the Following Occurs:

'The true mode of ascertainment is that said to have been first used by Thomas More, viz., that words cannot be construed effectively without reference to their context.

Their meaning is to be ascertained by reference to the whole pf the Act, including if necessary, the preamble and perhaps even the full title. A statute must be read as a whole, therefore, the language of one section may affect the construction of another'. (Ilbert, 250)

The learned author also postulates the use of the same words in different senses in the same Act. At page 159 this is what he said:

'It is a sound rule of construction' said Cleasby, B in Courtauld v. Legh, (1869) 4 Ex 126 at p. 130 'to give the same meaning to the same words occurring in different parts of an Act of Parliament.' The presumption that the same words are used in the same meaning is however very slight and it is proper 'if sufficient reason can be assigned to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act'.

That is to say

'as a canon of construction, though ordinarily the same meaning should be given to the same words occurring in different parts of the same Act, it is recognised that if sufficient reasons exist, a word can be construed in one part of an Act in a different sense from that it bears in another part.'

Vide Chidambara Nadar v. Rama Nadar, AIR 1937 Mad 385 (FB).

17. We refer to these rules of construction as Sri Chowdary has pleaded for the same meaning to be attached to the special meeting for election of members under Section 6 and the meeting contemplated under Section 65 (3) of the Act. The mere reference to the meeting of the members of the Panchayat Samithi in both the sections doe? not necessarily lead to the interpretation contended for. It has been seen that the Act has to be construed as a whole and that construction which leads to incongruity cannot be countenanced.

18. Sri Chowdary has cited P. Kutumba Rao v. P. Pamideshwara Rao, (1961) 2 Andh WR 327 : (W P. No. 1154 of 1959) : AIR 1962 Andh Pra 136), a decision of this Court, as supporting his contention. That was a case where the election ot the President and the Vice-President of the Bantumuilli Panchayat Samithi in Krishna District was challenged. The said Panchayat Samithi was constituted with effect from 1-11-1959. The election of members of the Panchayat Samithi was held on 24-10-1959, at a duly convened meeting of the members of the Panchayat Samithi. On that very day the R. D O issued a notice under Section 7 (2) of the Act calling for a special meeting of the Panchayat Samithi on 28-10-1959 at its office for the election of the President and Vice-President

On 28-10-1959 the members of the Panchayat Samithi elected the President and the Vice-President their election was challenged in the writ petition by a person who was a member of the Panchayat and who took part in the election, on the ground that the election of the President andthe Vice-President took place before the constitution of the Samithi which was contrary to the relevant provisions of the Act, and further that the members did not take their oaths of allegiance before the election as contemplated by the Act.

The contention advanced was that the election of the President and the Vice-President should be conducted only after the Panehayat Samithi was constituted and that the elections held prior to that contravened the provisions of the Act and therefore should be declared null and void. That contention was not accepted. After a discussion of the relevant provisions it was held that the process of election of the President and the Vice-President must be completed before the constitution of the Samithi.

The further contention was that there could be no meeting of the members before the constitution of the Samithi and consequently any oath taken at a meeting before the constitution was ineffective. That contention was not accepted recalling their finding that a meeting had to take place before the Constitution of the Samithi and if so an oath of allegiance could be made.

19. In -that case the matter now raised was not put in issue viz., that the ex-offieio members must make their oath of allegiance before the election of the co-opted members and the failure so to do vitiated their election. In fact a contention was advanced that any oath made at a meeting before the constitution of the Samithi was ineffective. What the learned Judges said there was that an oath could be taken at meetings held before the constitution of the Samithi in the manner prescribed by the Act and that could not be an ineffective oath. We do not think that this decision advances the contention of Sri Chowdary, any the more.

20. Sri Chowdary has invited our attention to the observations in . That was a petition for the issue of a Writ of Certiorari quashing the result of the voting recorded by the Revenue Divisional Officer Kandukur at a meeting convened by him for the purpose of voting at a meeting of no-confidence in the President (under Section 33 of the Act). The petitioner was the President of the Panchayat Samithi. His complaint was that the meeting of the Panchayat Samithi, which was called under Section 33, was only called tor the limited purpose ot considering the motion of no-confidence against the President, and statutorily the Revenue Divisional Officer could preside at the meeting but that be had no power to transact any other business. According to the petitioner's contention, the meeting was not called for to administer oaths ot allegiance to two of the members and it was not also included in the agenda For that reason it was contended that the no-confidence motion was bad and defective and should be quashed That contention was not accepted. After discussing the relevant provisions of the Act, certain observations were made which are now relied on: (at page 338)

'........ all that would be necessary in for the elected members of the Panchayat Samithis and non-official members of the Zilla Parishads to maka an oath 01 affirmation of their allegiance to theConstitution ot India at a meeting which can be Bay out of the meeting specified in. Sections 6, 7, 17 and 33, at which either the Collector or some person authorised by him OF the elected President would preside We cannot, therefore, accept the submission of the learned Advocate that there was anything irregular of contrary to law when the two members, one from the Panchayat Board of Kalampalli and the other from the Panchayat Board of Samanthapudi, took oath before the Revenue Divisional Officer.'

21. Manifestly the observations are torn out of the context and sought to be pressed into service in support of the argument that an oath has to be taken by the members at the special meeting contemplated under Section 6.

22. It is abundantly clear that the point, which is raised in the instant case, was never in issue in that petition. The observations do not purport to lay down anything to support the contention that under Section 6 there shall be oath taking before the election of the co-opted members and failure so to do would vitiate their election. We do not consider that the issue was presented or considered in this form previously.

23. For the said reasons we consider that Section 65 of the Act is not attracted in the matter of a special meeting for election of members under Section 6 (1) of the Act and that the election cannot be illegal for the reason that the ex-officio members did not make an oath of allegiance.

24. The petition is, therefore, dismissed with costs. Advocate's fee Rs. 100/-


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