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C.N. Nallappa Mudaliar Vs. the Election Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Reported in(1958)2MLJ423
AppellantC.N. Nallappa Mudaliar
RespondentThe Election Commissioner and ors.
Cases ReferredHrisk Ckandra v. Triloki Singh
Excerpt:
- - natesan had left off, and, after hearing argument, pronounced the order complained of. 9. the sub-rule it was suggested would make the provisions of order 18, rule 15 inapplicable to a case like the present. that provision is well-known and of long standing. the trial of an election petition is very much like the trial of a suit and express provision has been made that an election petition shall be tried in the same manner a suit......was that when there is a change in the personnel of the election commissioner there should be a de novo trial.3. the government have published various rules for the decision of election disputes under the madras districts municipalities act. the first rule is that no election held under the act shall be called in question except by an election petition presented in the prescribed manner. the election petition has to be heard by an election commissioner who shall be ' the subordinate judge, having territorial jurisdiction over the municipal area '. sub-rule (3) of rule 1 provides that aelection commissioner exercising jurisdiction under the rules shall be deemed to exercise such jurisdiction as a persona designaia.4. then we have got rule 6 which runs as follows:every election petition.....
Judgment:
ORDER

Balakrishna Iyer, J.

1. In October, 1955, an election was held in the seventh ward of the Municipal Town of Salem. After the votes were counted the petitioner was declared elected as he had secured 1198 votes. The second respondent was found to have secured 1122 and the third respondent 117 votes. Subsequently the second respondent filed an election petition before the Election Commissioner and Subordinate Judge, Salem, challenging the election of the petitioner on various grounds. In his petition the second respondent alleged that the petitioner and his agent had connived and obtained impersonation of voters. By an order he made on 19th August, 1957, the Election Commissioner held that three instances of impersonation had been established and set aside the election. The present petition has been filed for the issue of an appropriate writ to quash this order of the Election Commissioner.

2. Mr. Mohan Kumaiamangalam, the learned advocate for the petitioner, raised only one point, and, it was this. The election petition was filed before Mr. Natesan who was then the Sub-Judge. Mr. Natesan also recorded the evidence in the matter. At that stage he was transferred and Mr. Hammabba took his place. Mr. Hammabba continued the proceedings from where Mr. Natesan had left off, and, after hearing argument, pronounced the order complained of. The contention of Mr. Mohan Kumaramangalam was that when there is a change in the personnel of the Election Commissioner there should be a de novo trial.

3. The Government have published various rules for the decision of election disputes under the Madras Districts Municipalities Act. The first rule is that no election held under the Act shall be called in question except by an election petition presented in the prescribed manner. The election petition has to be heard by an Election Commissioner who shall be ' the Subordinate Judge, having territorial jurisdiction over the municipal area '. Sub-rule (3) of Rule 1 provides that a

Election Commissioner exercising jurisdiction under the Rules shall be deemed to exercise such jurisdiction as a persona designaia.

4. Then we have got Rule 6 which runs as follows:

Every election petition shall be inquired into by the Election Commissioner as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, igo8, to the trial of suits provided that it shall only be necessary for the Election Commissioner to make a memorandum of the substance of the evidence of any witness examined by him.

Explanation. - The Election Commissioner shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:

(a) discovery and inspection,

(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses,

(c) compelling the production of documents,

(d) examining witnesses on oath,

(e) reception of evidence taken on affidavit, and

(f) issuing commission for examination of witnesses and may summon and examine suo motu any person whose evidence appears to him to be material.

5. It will be noticed that Rule 6 corresponds to Section 90, Sub-section (1) of the Representation of the People Act, 1951 and that the Explanation to Ruls 6 corresponds to Section 92 of the Act.

6. The Supreme Court has held in Hrisk Ckandra v. Triloki Singh : [1957]1SCR370 , that the word 'trial' referred to in Sections 90 and 92 means

the entire proceedings before the Tribunal from the time that the petition is transferred to it under Section 86 of the Act until the pronoucement of the Award.

7. Now, if that is so, Order 18, Rule 15, Civil Procedure Code, would seem to apply, and, in that case, Mr. Hammabba would be competent to continue from the point where Mr. Natesan had left off.

8. But, said Mr. Mohan Kumaramangalam, we have got Sub-rule (3), Rule 1 of the Rules framed for the decision of election disputes which directs that

an Election Commissioner exercising jurisdiction under these Rules shall be deemed to exercise such jurisdiction as a. persona designata and not in his capacity as a Judge of the Court over which he presides.

9. The sub-rule it was suggested would make the provisions of Order 18, Rule 15 inapplicable to a case like the present. I do not think so. It seems to me that the purpose of the sub-rule is only to shut out Appeals and Civil Revision Petitions which would have ordinarily lain if the order had been passed, by a Sub-Judge as such.

10. In the Criminal Procedure Code we have an express provision for a de novo trial when there is a change in the personnel of a Magistrate or Judge. That provision is well-known and of long standing. That under the Rules framed no provision was made for a de novo trial seems to me to suggest that it was not intended that there should be a de novo trial when a change takes place in the personnel of the Election Commissioner. The trial of an election petition is very much like the trial of a suit and express provision has been made that an election petition shall be tried in the same manner a suit. There is no provision for the de novo trial of a suit merely because there has been a change in the personnel of the Judge. Both sides agree that there is no decision directly bearing on this subject. The matter is one of first impression. But, reading the Rules as a whole, I am inclined to take the view that the petitioner was not entitled to a de novo trial. This means, this Writ Petition fails and is dismissed with costs. Advocate's fee Rs. 125.


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