(1) The Panchayat of Meesanallur in Wandiwash Taluk has been divided into two wards under the Madras Village panchayats Act of 1950. It was notified that nominations would be received on 19-6-1958 and that the elections would be held on 20-6-1958. On 19-6-1958, only three persons filed their nomination papers for the three seats in ward No. 1. They were therefore declared elected unopposed. For the second ward, four persons filed their nomination papers in the morning of 19-6-1958. But in the evening of the same day all of them withdrew their nominations.
In consequence it was notified that fresh elections for the second ward would be held on the 16th and 17th July 1958, that nomination papers were to be filed on the 16th and that the election would be held on the 17th. However, on 16-7-1958 no person filed his nomination paper. Consequently, no election could take place the next day. On 26-7-1958, the Regional Inspector of Municipal Councils and Local Boards, North Arcot at Vellore, wrote to the petitioner, who having been elected President of the previous Panchayat continued to function as such pending the election of a new President that since no person was elected from ward No. 2 even in the second election the Panchayat should elect four qualified persons to fill the vacancies in accordance with the provisions of S. 11(2) of the Madras Village Panchayats Act.
Thereupon the petitioner issued noticed to the members that the elections would take place on 28-9-1958. However, on 25-9-1958 the Regional inspector of Municipal Councils and Local Boards wrote to the petitioner informing him that the Government had issued an order cancelling the elections which had been scheduled for 28-9-1958. The petitioner made oral representations to the Regional Inspector that the Government had no power to issue such an order. But of course the Inspector could do nothing. On 25-12-1958, the Regional Inspector wrote to the petitioner that fresh elections would be held for the second ward on 10-1-1959. The case for the petitioner is that under S. 11 of the Act, in the situation that had arisen in Meesanallur Panchayat, the only persons competent to fill the vacancies relating to ward No. 2 are the members who had been elected from Ward No. 1. He has therefore come to this court for the issue of an appropriate writ to quash the order of the Regional Inspector of Municipal Councils and Local Boards dated 25-12-1958.
(2) There was considerable argument in the case over the scope of sub-secs. (1) and (2) of S. 11 of the Act, and as the decision in this case would to a large extent turn on the proper construction of these sub-sections I shall quote them in full.
'(1) If at an ordinary or casual election, no person is elected to fill the vacancy or one of more of the vacancies, as the may be, a fresh election shall be held on such day as the Inspector may fix;
(2) If at such fresh election also, no person is elected to fill the vacancy or any of the vacancies, as the case may be, the panchayat may, in the manner prescribed, elect a qualified person to fill such vacancy.'
The first question is: what does the word 'election' in sub-sec. (2) mean. A number of processes are involved in an election. We start with the notification announcing the dates for various events connected with the election. Then there is the filing of nomination papers, the receipt of nomination papers, the scrutiny of nomination papers. The third stage would be the stage of polling and the last would be the announcement of the result. The word 'election' has been used in different statutes and even in different places in the same statute to comprehend one or more of the various processes involved in an election. The scope of the word 'election' as used in the District Municipalities Act and the rules framed thereunder came up for consideration in the Full Bench case in Selvarangam Raju v. Doraisami Mudaliar, ILR 52 Mad 732 : AIR 1929 Mad 727. On p. 743 (of ILR Mad): (p. 731 of AIR) Anantakrishna Aiyar J. observed as follows:
'The first question is, what exactly is the scope of what is termed 'election' in the District Municipalities Act and the rules framed thereunder. In Wharton's Law Lexicon, p. 312, the first meaning given to the word 'election' is the act of selecting one or more from a greater number for an office'. In Strouds's Judicial Dictionary Vol. II p. 609 it is stated as follows: 'In the Local Government Act of 1894, election includes both nomination and the poll (S. 75).' I think that in the Madras District Municipalities Act also 'election' should be taken to include both the nomination and the poll. Though a restricted view of the meaning of the word 'election' was taken in some cases, I think that the view that 'election' includes both nomination and the poll was the view adopted by a larger number of learned Judges in this court as seen from the cases cited in the judgment of Pakenham Walsh J. Notwithstanding the use of the words 'nomination' and 'election' in S. 43, cl. (2) of the Act, and speaking with all respect. I think that the latter is the correct view to take. The rules framed for conduct of elections of municipal councillors assume that nomination of candidates is included in the election.'
In Ponnuswami v. Returning Officer, Namakkal, 1952 1 Mad LJ 775, Venkatarama Aiyar J. made an exhaustive examination of the matter and summarised the position in these terms at p. 788:
'The result of the authorities is to establish the position that though the etymological meaning of the word election might be limited to the act of choosing the candidate, it has an extended meaning as including the entire process which ends with the choosing. In other words, it has become a term of art comprehending in its connotation the entire procedure of election. That, of course, does not mean that in any particular context the word might not be used in a narrow sense. The question is ultimately one to be decided on a construction of the statute.'
In other words, it depends upon the context what the word means. Mr. Srinivasan argued that the word 'election' in sub-sec. (2) of Sec. 11 means polling and that if no polling has take place, it would not be possible, to say that there had been an election; much less a fresh election within the meaning of that sub-section. I do not think this view is right. If it were so, sub-sec (2) can take effect only in those very exceptional or extraordinary cases where after nominations are properly made no votes at all are polled or where all the votes polled are found to be invalid. It is hardly likely that this sub-section was intended to provide for a situation of the kind which would ordinarily never arise.
Of course, sub-sec. (2) as it stands would cover a case, where no votes are polled or where all the votes polled are found to be invalid. But it would also apply to a case where no candidate stands for election or where all the candidate withdrew. It seems to me that the sub-section would take effect in every case where after the appropriate authorities have done everything necessary to hold an election, no candidate is elected either by reason of the fact that no one votes for any candidate or where all the votes are found to be invalid or where for any other reason the election becomes completely infructuous with the result that nobody is elected. The word 'election' in sub-sec. (2) would include not merely the stage or process of polling but also the process of nomination and that sub-section would apply where no person is elected whatever be the reason therefor.
(3) Mr. Srinivasan next said that there had been no fresh election within the meaning of sub-sec. (2), because there had been no valid or proper notification by the appropriate authority in that regard. In view of this contention a report was called for and the Additional District Panchayat Officer, Vellore, has submitted a report which makes it plain that the requisite notifications were published in the manner prescribed by the rules. That objection also must fail.
(4) Mr. Srinivasan next urged that the order of the Government directing that fresh elections be held on 10-1-1959 is administrative in its nature and that therefore no writ of certiorari can issue. It is no doubt true that the order is not judicial or quasi-judicial and that therefore a writ of certiorari which is the one the petitioner has asked for would not be appropriate. But where it is clear that the action complained of involves a contravention of the statute, an appropriate writ can be issued even though the writ of the particular kind which the petitioner has asked for may not be available to him. This argument is relevant only as regards the form of the matter and not its substance.
(5) Mr. Srinivasan next stated that the petitioner has an adequate alternative remedy and should elections be held as directed by Government he can always file an election petition. He pointed out that under Rule 11(c) of the rules framed for the decision of election disputes, an election can be set aside if the result of the election has been materially affected by non-compliance with any of the provisions of the Act. The contravention of the provisions of the Act would therefore entitle him to file a petition and if he shows that the result of the election has been affected, the election can be set aside. Now, it has always been held by this court that the existence of an alternative remedy is only a circumstance which would influence the discretion of this court and that it is not a matter which would effect its jurisdiction. Besides in the present case I do not consider that the existence of this alternative remedy can be regarded as in any way adequate.
(6) Mr. Srinivasan finally argued that the petitioner is not a person who is aggrieved in any way and that therefore he has no locus standi to file the present petition. In support of his argument he referred to the decision of Rajagopala Aiyangar J. in W. P. No. 1013 of 1957, G. Rajamannar Chetti v. State of Madras. That was a case in which the petitioner, who was a member of the Corporation of Madras, had voted for a resolution and wanted that the Government should be compelled to accept it. It was held that he had not sufficient interest to maintain the petition.
I do not think that this decision is applicable here. The petitioner is a member of the Panchayat having been elected from Ward No. 1 and if his contention is upheld, he along with two others would have a right to elect the four remaining members of the Panchayat. He has therefore a sufficient and proximate interest in the matter. If the order of the Government were to stand and elections held in the manner directed by the Government, the petitioner would be deprived of the right which he along with two others had of electing four other members of the Panchayat
(7) In the result, the petition is allowed and the writ will issue. The Government will forbear from proceeding with the election notified for ward No. 2, of the Meesanallur-panchayat. No costs.
(8) Petition allowed.