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R. Kandaswami Chettiar Vs. Municipal Council of Pollachi - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai
Decided On
Reported inAIR1933Mad260
AppellantR. Kandaswami Chettiar
RespondentMunicipal Council of Pollachi
Cases ReferredParthasaradhi Naidu v. Koteswara Rao
Excerpt:
- - 7. the expression 'has been elected' was clearly shows that the election prior to the objection; no candidate who has been defeated can apply. these are the objections raised to show that the lower court has no jurisdiction to entertain or decide this petition, and in my opinion they fail. on this point i will shortly say that i am not satisfied that the view of the learned judge is wrong......any action that might be taken by the council or at its instance presented this petition to the district judge, purporting to do so under section 51 of the act as amended, stating that unfounded questions and doubts had been raised about the validity of their election and asking for an order that such doubts and questions were unfounded and that they were holding their offices as councilors legally. the respondent to the petition was the municipal council which appeared through its chairman and put forward the objection that under section 49(2)(f) both the petitioners were disqualified for being elected as councilors on the ground that at the time of election one was the official superior and the other the official inferior of the other. this was the only question before the district.....
Judgment:

Pandalai, J.

1. This is a petition to revise an order of the learned District Judge of Coimbatore passed under Section 51, District Municipalities Act, on an application to him under the same section by the present petitioners. They were respectively the President and the Secretary of the Pollachi Town Bank, Limited, having been elected to these offices on 15th July 1931. They were also Councilors of the Municipal Council of Pollachi. The life of the council then in existence was, in pursuance of Section 177 of the Amending Act of 1930, extended by Government to 1st December 1931, some time previous to which the elections for the new council, which was to come into existence on the above date, took place. At that election which was governed by the District Municipalities Act as amended, the present petitioners, being still President and Secretary of the Bank, were re-elected members of the new council. No objection was apparently then taken. They entered on their offices and were functioning as such. After some time questions arose, at whose instance it does not matter, which led to the Chairman of the Council calling a special meeting to consider the matter. The petitioners forestalling any action that might be taken by the council or at its instance presented this petition to the District Judge, purporting to do so under Section 51 of the Act as amended, stating that unfounded questions and doubts had been raised about the validity of their election and asking for an order that such doubts and questions were unfounded and that they were holding their offices as councilors legally. The respondent to the petition was the Municipal Council which appeared through its Chairman and put forward the objection that under Section 49(2)(f) both the petitioners were disqualified for being elected as Councilors on the ground that at the time of election one was the official superior and the other the official inferior of the other. This was the only question before the District Judge. On an examination of the clauses of the Articles of Association of the Bank the learned Judge held that the first petitioner, President, was the official superior of the second petitioner the Secretary of the Bank, and therefore they were both disqualified for election to the council.

2. In the grounds of the petition to this Court the only ground taken is that the Secretary is not an official inferior of the President of a Bank, and that the learned Judge was in error in taking that view. A preliminary objection was taken for the respondent against the petition being heard on the grounds stated in the petition on the ground, that assuming that the learned Judge took an erroneous view, this Court is not competent to revise that opinion, and for this Clause 2, Section 51 of the Act was relied upon, which says that the said Judge after making such inquiry as he deems necessary shall determine whether or not such a person is disqualified under Sub-section (1), Sections 48, 49, Section 50 or Section 60, and his decision shall be final. On this section a number of decisions of this Court have put it now beyond dispute that, provided the District Judge was acting within his jurisdiction, his decision however erroneous on the facts or even on the construction of the rules, cannot be revised by this Court. In Umar Uduman v. Moideen Pillai : AIR1929Mad257 it was held that, although a District or Subordinate Judge deciding an election petition under the rules is not a persona designate but a Court subordinate to this Court's jurisdiction, yet if all the fault that can be founds with the decision of that Court is that it was wrong on the merits or even upon a doubtful question of construction of the rules, this Court will not interfere. That however was in an election petition. The case in Duraiswami Nadar v. Joseph : AIR1926Mad319 was also one of an election petition. In Ramaswami Goundan v. Muthu Velappa Gounder AIR 1923 Mad 192 it was held that a District Judge inquiring into an objection under Section 57, Local Boards Act (corresponding to Section 51, District Municipalities Act), cannot give himself jurisdiction to entertain a matter not within it by committing an error of law. And this opinion was repeated in Parthasaradhi Naidu v. Koteswara Rao AIR 1924 Mad 561 where the ultimate decision was in a contrary sense, namely, that the Judge had jurisdiction. At p. 379(of 47 Mad). Ramesam, J. said

that where a District Judge who has jurisdiction to inquire into an election petition under the rules, passes, as the result of his inquiry, an erroneous order based on an errounecus construction of the sections of the Act or the rules, the order cannot be interfered with in revision, and it cannot be said in such a case that on account of his error of law the District Judge exercised a jurisdiction which did not exist.

4. This being the state of authority, it follows, that unless the petitioners can establish that the District Judge exceeded his jurisdiction in making the present order, this Court cannot revise it however wrong it was on the facts. But the petitioners' learned advocate attempted to show that the Judge had no jurisdiction, and he attempted it in many ways. His first argument was that objections to election under Section 49 of the Act were not applicable at all in the case of these petitioners because they were elected, according to him, in pursuance of the transitory provisions of the Amending Act, 1930, and he referred to Section 177 which says that the terms of office of the members of every Municipal Council holding office on the date of the commencement of this Act (26th August 1930) shall subject to the provisions of Sub-section (2), Section 48 and Sections 50, 51 and 60 of the said Act as amended by this Act, extend to, or expire on such date as the Local Government may fix, etc. That date was 1st December 1931.

5. These petitioners were Municipal Commissioners till that date. Because Section 177 does not refer to Section 49 as one of the sections subject to which the extension is to be granted, therefore objections to qualification based on that section are not applicable to the Commissioners whose term was so extended. This argument is based upon a fallacy. All that Section 177 purports to do is to enable the Government to extend the tenure of the Commissioners holding office on the date when the Act came into force and that extension is expressly made subject to four Sections 48(2), 50, 51 and 60. Section 48(2) is the provision which disqualifies Government servants generally, except village officers and part time officers, from being elected. Section 50 relates to disqualification arising after election. Section 51 is the section which deals with orders by the District Judge in cases of disputed disqualification and Section 60 is another instance of subsequent disqualification by reason of conviction for electoral offences. Section 177 was not concerned to deal with the election which was to be held for the new Council at all because that election would be governed by all the provisions relating to elections under the Act. All that the section needed to do and did do was to enable the Government to extend the term of the existing Councilors and the mention of certain specific sections is to make it clear that if during the extension any of the so-extended Councillors took Government service under Section 48(2) or became subject to any of the disqualifications mentioned in Section 50 or Section 60, they would still be liable to be declared disqualified under Section 51. There was no intention to exempt future elections from the conditions necessary for all elections. The argument therefore based upon this misapprehension is incorrect.

6. Then next argument was that proceedings under Section 51 are not applicable to disqualifications of Councillors existing prior to the election and that the section properly operates only in case of disqualification subsequently arising under Sections 50 and 60. I find it very difficult to follow this argument in the face of the words of Section 51 which expressly say that

whenever it is alleged that any person who has been elected as a Councillor is disqualified under Sub-section (1), Section 48, Section 49, Section 50 or Section 60, etc.

7. The expression 'has been elected' was clearly shows that the election prior to the objection; in other words, that an objection is raised to an election which has already taken place, and if one of the permissible objections is based upon Section 49 which itself concerns only previously existing disqualifications it follows that objections under Section 51 may embrace disqualifications existing before the election.

8. The third point was that a Councillor cannot under Section 51 apply to the District Judge to decide on his own disqualification under Section 49 but that every such objection must be about someone else's disqualification. There is some but not in my opinion substantial foundation for this argument. Section 51 says that when it is alleged that any person who has been elected as a Councillor is disqualified under Section 48(1), Section 49, Section 50 or Section 60 and such person does not admit the allegation or whenever any Councillor is himself in doubt whether or not he has become disqualified for office under Section 50 or Section 60 such Councillor or any other Councillor or the Chairman at the request of the Council shall apply to the District Judge, etc. It is obvious that the applicant under the section must be some Councillor or the President at the request of his Council. No stranger can apply; that is no voter can apply; no candidate who has been defeated can apply. This provision is entirely in favour of the Councillors and the Council acting through its Chairman. It is reasonable to suppose that the person against whom the application under the section on the footing of Section 49 was contemplated was not the person under disqualification himself, because the section says or supposes that such person does not admit the allegation, which implies that he disputes it and that some other Councillor makes the application. The only case of a Councillor applying about his own disqualification is when he is in doubt as to Section 50 or Section 60. However that may be, these two petitioners may be regarded as having filed an application in the character of 'any other Councillor' about each other. It is now too late for them to say that they made a petition against themselves and that they are not willing to be bound by the result. The petitioners having invoked the jurisdiction of the District Judge, no doubt hoping for a favourable order, cannot be heard to repudiate it now that it is pronounced against them. These are the objections raised to show that the lower Court has no jurisdiction to entertain or decide this petition, and in my opinion they fail. Therefore, even if the decision that the petitioners are subordinate and superior to each other be incorrect, I should not be empowered to interfere. As however the matter has been argued, I ought to notice the objection taken that on a proper construction of Section 49(2)(f) persons who stand in the relation of official subordination or superiority to a Councillor holding office on the said date must be persons holding some Government office. I think that this is quite unfounded for the reason that Section 48(2) of the Act debars Government servants as a class from standing for election and it was not necessary to enact this clause to exclude from election Government officials standing in subordinate or superior position to some Councillor holding office on a particular date. But it was said that Government officials are not totally excluded and that village officers are eligible, and also the only officials are excluded are whole time servants of the Government remunerated by salary or fees. In other words part-time Government servants, whether remunerated or not by salary or fees, are not excluded. In my opinion the effect of Section 49(2)(f) is not merely to disqualify Government village officers or part-time Government officers who are subordinates or superior of sitting Councillors. The much more natural and reasonable meaning of the words is that persons standing in a superior or subordinate position to a sitting Councillor and holding office as such, not necessarily Government office, should be excluded from election. The reason is that it is necessary to maintain the independence of Municipal Councils and the purity of their administration, which would be imperilled if subordinates or superiors of existing Councillors in an official capacity were to be allowed to compete for seats as they would have the natural advantage of the influence and position of the sitting Councillors and, if successful, might form cliques and factions with them.

9. The only remaining and last point was that the Secretary of this bank by its rules does not occupy a subordinate position to the President. On this point I will shortly say that I am not satisfied that the view of the learned Judge is wrong. The petition fails and is dismissed with costs.


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