Skip to content


R. Narayanaswami Vs. T.K. Srinivasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1966)2MLJ315
AppellantR. Narayanaswami
RespondentT.K. Srinivasan and anr.
Cases ReferredHindu Religious and Endowments Board v. Nallathambi Ayyaswami
Excerpt:
.....is annulled under section 43 of the act. the learned counsel submits that if section 73 of the provincial insolvency act is borne in mind in interpreting section 25(2)(b) of the madras panchyats act, it will be clear that when the legislature used the words in section 25(2)(b), a person shall be disqualified for election as a member if he is an undischarged insolvent 'it meant that excepting an insolvent who obtained an order of discharge, a person like the first respondent who failed to apply for discharge and in that sense was not a dicharged insolvent, would also be subject to disqualification. a better position than a person whose application for adjudication is pending or whose application for discharge is pending or to whom an order for discharge, absolute or conditional, has..........of 1965 to the prescribed judicial authority (district munsif, coimbatore) under section 28 of the madras panchayats act, 1958 (xxxv of 1958) alleging that the first respondent was disqualified for election on the ground that he was an undischarged insolvent. the facts on that point are really not in dispute. the first respondent had filed a petition himself (exhibita-1) i.p. no. 15 of 1962 under sections 10 and 13 of the provincial insolvency act (v of 1920) in the court of the district munsif, coimbatore, to be adjudged insolvent. he was adjudged insolvent on 12th march, 1963 and he was given six months' time to apply for discharge. but he did not file an application within the time or the extended time granted to him. the result was that on 20th june, 1964 his adjudication was.....
Judgment:
ORDER

K.S. Venkataraman, J.

1. These two Revision Petitions have been filed by one R. Narayanaswami under the following circumstances. Towards the end of March, 1965, one T.K. Srirangan, the contesting respondent in these petitions, was declared elected as a member of the Kondayampalayam Panchayat Board. The petitioner was also one of the persons declared elected as a member. The petitioner did not file any objection then that the first respondent Srirangan was disqualified for election as a member. On 15th April, 1965 he filed a petition O.P. No. 29 of 1965 to the prescribed judicial authority (District Munsif, Coimbatore) under Section 28 of the Madras Panchayats Act, 1958 (XXXV of 1958) alleging that the first respondent was disqualified for election on the ground that he was an undischarged insolvent. The facts on that point are really not in dispute. The first respondent had filed a petition himself (ExhibitA-1) I.P. No. 15 of 1962 under Sections 10 and 13 of the Provincial Insolvency Act (V of 1920) in the Court of the District Munsif, Coimbatore, to be adjudged insolvent. He was adjudged insolvent on 12th March, 1963 and he was given six months' time to apply for discharge. But he did not file an application within the time or the extended time granted to him. The result was that on 20th June, 1964 his adjudication was annulled under Section 43 of the Provincial Insolvency Act, the actual order being ' Discharge Petition not filed. Adjudication annulled.' Section 25(2)(b) of the Madras Panchayats Act runs:

A person shall be disqualified for election as a member if, at the date of nomination or election, he is an applicant to be adjudicated an insolvent or ah undischarged insolvent.

2. Along with the application O.P. No. 29 of 1965, the petitioner filed an application for temporary injunction to prevent the first respondent Srirangan from contesting the presidential election scheduled to take place on 19th April, 1965. An ex parte injunction was granted. In view of that, the first respondent who appeared at the time of the election in order to contest the presidential seat was prevented from contesting that seat at the election. The petitioner Narayanaswami was elected as President unopposed. Thereafter, Srirangan filed O.P. No. 31 of 1965 to set aside the election of the petitioner Narayanaswami on the ground that he had not really incurred the disqualification under Section 25(2)(b) of the Madras Panchayats Act, his point being that .when the insolvency was annulled, it was wrong to speak of him as an insolvent and therefore wrong to describe him as an undischarged insolvent. He also urged that Section 172 of the Madras Panchayats Act was an absolute bar to the civil Court issuing the temporary injunction in respect of the election on 19th April, 1965. He also pointed out that under Section 28(2) of the Act, pending the decision in O.P. No. 29 of 1965, he, Srirangan, shall be entitled to act as if he was qualified or were not disqualified.

3. Both the petitions O.P. Nos. 29 and 31 of 1965 were heard together and the learned District Munsif accepted the contention of the first respondent Srirangan both on the interpretation of Section 25(2)(b) of the Panchayats Act and the effect of Section 172 of the Act. He accordingly held that the first respondent had not incurred the disqualification under Section 25(2)(b) of the Act and that the injunction preventing him from taking part in the presidential election was wrong. He, therefore, set aside the election of the petitioner. Narayanaswami has preferred these two Revision Petitions--C.R.P. No. 557 of 1966 against the decision in O.P. No. 29 of 1965 and C.R.P. No. 558 of 1966 in respect of the decision in O.P. No. 31 of 1965.

4. Sri Mohan, learned Counsel for the petitioner, submits that in interpreting Section 25(2)(b) of the Panchayats Act we must have regard to Section 73 of the Provincial Insolvency Act, which runs thus:

73. (1) Where a debtor is adjudged or re-adjudged insolvent under this Act, he shall subject to the provisions of this section, be disqualified from-

(a) being appointed or acting as a Magistrate ;

(b) being elected to any office of any local authority where the appointment to such office is by election or holding or exercising any such office to which no salary is attached ;

(c) being elected or sitting or voting as a member of any local authority.

(2) The disqualification which an insolvent is subject to under this section shall be removed, and shall cease if-

(a) the order of adjudication is annulled under Section 35, or

(b) he obtains from the Court an order of discharge, whether absolute or conditional, with a certificate that his insolvency was caused by misfortune without any misconduct on his part.

(3) The Court may grant or refuse such certificate as it thinks fit, but any order or refusal shall be subject to appeal.

The contention of the learned Counsel is that on the terms of Section 73 of the Provincial Insolvency Act, the first respondent Srirangan was disqualified from being elected as member of the Kondayampalayam Panchayat Board, because he had not obtained from the Insolvency Court any order of discharge with a certificate that the insolvency was caused by misfortune without any misconduct on his part. The learned Counsel submits that Section 73(2) of the Provincial Insolvency Act clearly shows that excepting where the order of adjudication is annulled under Section 35 on the ground that the adjudication should not have been made at all or where the debts have been paid in full or where the insolvent gets an order of discharge with the certificate that the insolvency was caused by misfortune without any misconduct on his part, in all other cases, once an adjudication is made, the person will be disqualified from being elected to any office of a local authority even though the adjudication is annulled under Section 43 of the Act. The learned Counsel submits that if Section 73 of the Provincial Insolvency Act is borne in mind in interpreting Section 25(2)(b) of the Madras Panchyats Act, it will be clear that when the Legislature used the words in Section 25(2)(b), 'A person shall be disqualified for election as a member if he is an undischarged insolvent ', it meant that excepting an insolvent who obtained an order of discharge, a person like the first respondent who failed to apply for discharge and in that sense was not a dicharged insolvent, would also be subject to disqualification. Learned Counsel submits that this is how Section 16(2)(b) of the Village Panchayats Act (Madras Act X of 1950) corresponding to Section 25(2)(b) of Madras Act XXXV of 1958 has been interpreted by a Bench of the Kerala High Court, (Koshi, C.J., and Vaidialiangam, J.,) in Koman Nambiar v. Narayanan Nambiar I.L.R. 1958 Ker. 215 : (1957) 1 Ker. L.J. 1183. Section 16(2)(b) of Madras Act (X of 1950) ran thus:

A person shall be disqualified for election as a member, if, at the date of the nomination or election, he is an applicant to be adjudicated an insolvent or an undischarged insolvent.

In that case also the adjudication of the candidate was annulled under Section 43 of the Provincial Insolvency Act. It was held that he would be an undischarged insolvent within the meaning of Section 16(2)(b) of the Act. Construing the provision in the light of Section 73 of the Provincial Insolvency Act, the learned Judges observed:

It would shock the Court's conscience to hold that a person whose adjudication has been annulled under Section 43 will so far as the civic or citizenship rights are concerned be in. a better position than a person whose application for adjudication is pending or whose application for discharge is pending or to whom an order for discharge, absolute or conditional, has been granted without a certificate contemplated by the latter part of Section 73(2)(b). To hold so would, in our opinion, be a mockery of justice. Indeed that is the view which Mack, J. of the Madras High Court took in Hindu Religious and Endowments Board v. Nallathambi Ayyaswami (1953) 2 M.L.J. 518 : A.I.R. 1954 Mad.88

5. In the last mentioned case, Mack, J., applied the same reasoning in a similar situation with reference to more or less similar words occurring in Section 54(1)(b) of the Madras Hindu Religious Endowments Act (II of 1927). The learned Judges of the Kerala High Court pointed out that the effect of Section 37 of the Provincial Insolvency Act is only to affect the rights of the creditors or the Official Receiver in respect of the property of the insolvent and cannot remove the disability attached to the erstwhile insolvent in respect of his civic or citizenship rights. The point need not be laboured because Section 73 is clear on the point. The argument based on Section 73 of the Provincial Insolvency Act was, however, not addressed to the learned District Munsif in this case, and I am sure, if it had been addressed before him he would also have come to the same conclusion. I respectfully follow the decision of Mack, J., and the Kerala High Court and hold that in this case the first respondent Srirangan had incurred the disqualification under Section 25(2)(b) of the Madras Panchayats Act read with Section 73 of the Provincial Insolvency Act. I may add that another way of looking at the matter is that even if Section 25(2)(b) of the Madras Panchayats Act will not in terms apply, it cannot preclude the application of Section 73 of the Provincial Insolvency Act and on the terms of that section alone, the first respondent was disqualified.

6. The next question is the proper order to be passed now. It is true that, by virtue of Section 172 read with Section 28(2) of the Madras Panchayats Act the issue of the injunction was wrong. But it has now been found that the first respondent was disqualified to be a member, and apart from him the election of the petitioner as President has not been contested by any other person. It is, therefore unnecessary to set aside the election of the petitioner as President. Accordingly, both the civil revision petitions are allowed. It will be declared that the first respondent Srirangan was disqualified for election as a member under Section 25(2) of the Panchayats Act read with Section 73 of the Provincial Insolvency Act and that the election of the petitioner as President on 19th April, 1965 was valid. The parties will, however, bear their own costs in the two revision petitions.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //