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Thangalakshmi Ammal Vs. Arunachalam and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Reported in(1958)1MLJ184
AppellantThangalakshmi Ammal
RespondentArunachalam and ors.
Cases ReferredKumaraswami Pillai v. Venkataramana Rao
Excerpt:
.....a court of law or equity, and though there is no such express power given in the case of municipal election petitions, like the power under section 83(3), we are of the opinion that that power must be implied to exist and to be included in the power of amendment under order 6, rule 17, civil procedure code, which, even according to mr. 8. we are satisfied that mr. it is desirable to apply uniform rules regarding corrupt practices and irregularities which clearly affect the results in the interests of clarity and public benefit wherever there is no law to the contrary. we have no compunction, in the matter, seeing how important it is to ensure the purity of elections in the democratic set up of our country and also seeing that the appellant himself was not charged with any corrupt or..........amendment giving new heads of corruption or irregularity which is forbidden according to the above bench ruling. we have no compunction, in the matter, seeing how important it is to ensure the purity of elections in the democratic set up of our country and also seeing that the appellant himself was not charged with any corrupt or criminal or quasi-criminal or shady act, like making persons impersonate dead or living voters which will make him liable to prosecution or affect his reputation. nor is it as if a rival has been declared elected. the whole election has been set aside, and the appellant, who was declared elected simply because of his securing one vote more is free to compete again and get elected.9. mr. jagadisan frankly conceded that, even if we allow this appeal and confine.....
Judgment:

Panchapakesa Ayyar, J.

1. This is an appeal filed by one Thangalakshmi Ammal for setting aside the order of Rajagopalan, J., dismissing her Writ Petition No. 1018 of 1956.

2. The facts are briefly these : The appellant had stood for election from Ward No. 13 of the Tiruchirapalli Municipality, a double member constituency, one of the seats being reserved for a member of the scheduled castes. The appellant and respondents 1 to 7 were the eight candidates who stood for the election held on 10th October, 1955. Respondents 2, 3 and 7 alone were eligible to stand for the reserved seat. Respondent 3, who obtained 680 votes, was declared elected to the reserved seat. The appellant, who got 653 votes, as against the 2nd respondent who polled 652, was declared elected to the non-reserved seat on the strength of his having secured one more vote. The 1st respondent obtained only 616 votes. Respondents 1 and 2 filed O.P. No. 138 of 1956 to set aside the election of both the candidates who had been declared successful. The Election Commissioner pointed out that no allegation of the commission of any corrupt practice by the candidates or by their agents had been mentioned and pressed for adjudication, and that the election had been sought to be avoided only on the ground that the irregularities in the conduct of the election had materially affected the final result of the election. He found, after a scrutiny of the votes cast, with the help of his clerks the candidates themselves being absent (1) that 158 voters polled their votes at wrong booths, and that the reception of their votes was in contravention of Rule 27-A (1)(c) of the Rules for Conduct of Election of Municipal Councillors : (2) that there were 12 instances where the same voter had voted twice ; (3) that there were two-instances , of personation of dead voters ; (4) and that there were four instances-of personation of living voters. He held applying these facts, to the facts of this election, that the results of the election had been materially affected by the improper reception of the above votes in the final counting by the Returning Officer. Her therefore, set aside the election, and ordered a fresh election.

3. Irregularities under each of the above four heads had been alleged and relied on in the petition, and instances were given in the lists attached to the petition, as. required by Rule 2. But, on finding that some of the particulars mentioned in the lists were not correct, as per the facts discovered later on, respondents 1 and 2 sought and obtained permission to amend the particulars in the lists. This amendment petition, which was allowed by the Election Commissioner, is LA. No. 147 of 1956. The legality of that amendment was the thing most hotly contested in the writ petition before Rajagopalan, J., and before us in this appeal.

4. Some minor contentions, which were raised before Rajagopalan, J., are not now raised before us by Mr. Jagadisan, the learned Counsel for the appellant. The most important of these was that the Election Commissioner did not count these votes in the presence of the candidates, and that this contravened the rules of natural justice and vitiated his counting. But, as it was not alleged that the counting, as. a matter of fact, was not correct, or that the Election Commissioner had acted wrongly or with improper motive, Rajagopalan, J., negatived that contention, and Mr. Jagadisan did not very properly raise it again before us. Some things like examination for age or impotency or veneral disease, need not be done of one party, in the presence of the other by doctors etc.

5. Rajagopalan, J., did not agree with the contention of the appellant in the writ petition that the Election Commissioner had no power at all to allow any amendment to the petition, giving further particulars of additional persons who had voted in the wrong booths, or who cast double votes or impersonated dead and living persons. He overruled the contentions of the appellant that was not allowed to be covered by an amendment, regarding Municipal Election Petitions, though Section 83(3) of the Representation of the People Act gave such a right of amendment in those petitions ; relying on the Supreme Court ruling in Harish Chandra Bajpai v. Triloki Singh : [1957]1SCR370 , Rajagopalan, J., finally dismissed the writ petition though without costs.

6. We may add here that the third respondent, who had obtained a larger number of votes than the appellant, and whose election too had been set aside, has not filed any writ petition.

7. We have perused the records and heard the learned Counsel on both sides in this appeal. The main, and indeed the only, contention of Mr. Jagadisan before us was that Rajagopalan, J., was not right in relying on the decision of the Supreme Court (given after the filing of the writ petition) in Harish Chandra v. Triloki Singh : [1957]1SCR370 , as it was not applicable to this case of Municipal Elections and as it did not, and could not overrule the direct ruling of Rajagopala Ayyangar, J., in W.P. No. 74 of 1956 in a Municipal Election Petition, or the observations of a Bench of this Court in Komaraswami Pillai v. Venkataramana Rao : (1956)1MLJ40 , approving of the observations in that decision, namely, that further particulars involving mention of further persons guilty of the corrupt acts alleged originally in the petition, could not be allowed to be covered by any amendment, and that only the charges relating to the persons already named in the lists attached to the petition should be gone into. Mr. Jagadisan relied strongly on the observations of the Bench that an Election Tribunal is not a Court of law or equity but a creature of statute and has no Common Law powers. He pointed out that the Supreme Court had relied on the provisions of the Representation of the People Act, and especially on the provisions of Sections 83(3), 90(2) and 92, and that he had held that there were two powers of amendment open to the petitioner under that Act, namely, the specific power of amendment given under Section 83(3), which would not be limited to the period allowed for filing the election petition itself, and a residuary power regarding amendments not covered by Section 83(3), and exercised under Order 6, Rule 17, Civil Procpdure Code arising out of Sections 90(2) and 92, but to be exercised within the period of limitation allowed for filing the petition. He went on to argue that, as there is no provision similar to Section 83(3) of the Representation of the People Act in the case of Municipal Election Petitions, that power must be deemed not to exist. We cannot agree with his contention. Though an Election Tribunal has no inherent or Common Law powers, like a Court of law or equity, and though there is no such express power given in the case of Municipal Election Petitions, like the power under Section 83(3), we are of the opinion that that power must be implied to exist and to be included in the power of amendment under Order 6, Rule 17, Civil Procedure Code, which, even according to Mr. Jagadisan, would exist in the case of Municipal Election Petitions also under the Supreme Court ruling. Mr. Jagadisan wanted to urge that, because only six matters have been mentioned in the Explanation to Rule 6, as (a) to (f), the power of amendment would not exist in the case of Municipal Election Petitions, but, when pointed out that there is no word ' only ' after the phrase, ' the following matters ' in the Explanation, and that the six matters appear to be illustrative and not exhaustive, he finally had to agree, after perusing the Supreme Court ruling, that the power to amend given by Order 6, Rule 17, Civil Procedure Code would exist in the case of Municipal Election Petitions also, but only subject to the limitation period of one month. But this power is not mentioned in the Explanation to Rule 6 which shows that it is only illustrative.

8. We are satisfied that Mr. Jagadisan is right in regarding the non-applicability of the Supreme Court decision directly to this case which is governed by the Municipalities Act and Rules. But we are of the opinion that analogously the same principle should be applied, as the principles on which amendments are granted under Order 6, Rule 17 and on which elections are set aside are more or less common to Municipal Elections and Panchayat Elections and Elections to Legislatures and Parliament. The importance alone varies. It is desirable to apply uniform rules regarding corrupt practices and irregularities which clearly affect the results in the interests of clarity and public benefit wherever there is no law to the contrary. Here there was admittedly the power of amendment given under Order 6, Rule 17 regarding further instances of the same corrupt acts or irregularities given in the petition. It is only an amendment giving new heads of corruption or irregularity which is forbidden according to the above Bench ruling. We have no compunction, in the matter, seeing how important it is to ensure the purity of elections in the democratic set up of our country and also seeing that the appellant himself was not charged with any corrupt or criminal or quasi-criminal or shady act, like making persons impersonate dead or living voters which will make him liable to prosecution or affect his reputation. Nor is it as if a rival has been declared elected. The whole election has been set aside, and the appellant, who was declared elected simply because of his securing one vote more is free to compete again and get elected.

9. Mr. Jagadisan frankly conceded that, even if we allow this appeal and confine ourselves to the original lists filed by the petitioner, and take only the proved cases of voting in the wrong booths and impersonation of dead or living voters, the appellant cannot succeed straightaway in the Election Petition, and the petition would have to be sent back for further investigation and inquiry and orders, as we have rejected his contention that the Election Commissioner acted illegally in scrutinising the ballot papers in the petitioner's absence. Then also there would be a delay, perhaps even a greater delay, than by the re-election ordered by the Election Commissioner. But he stated that the appellant was naturally anxious to avoid fresh election and to rest on his legal rights and try at least to sit for a while as Councilor, by filing a stay application and try his luck once more that way, instead of facing a new election with all the expenses and uncertainty. We cannot help him.

10. We are unable to agree with Mr. Jagadisan that the power under Order 6, Rule 17, Civil Procedure Code should be limited, in the case of petitions attacking Municipal Elections, to the period of one month within which the petitions themselves should be filed, even though he could not deny that all such instances in the case of elections by ballot will take more than one month to find out. The observations of the Supreme Court to that effect in Bajpai's Case (1957) S.C.J. 297: A.I.R. 957 S.C. 444 (S.C.)., regarding the exercise of the powers of amendment under Order 6, Rule 17, Civil Procedure Code, in a petition under the Representation of the People Act, rested, in our opinion, on the fact that there was ample power of such amendment given under Section 83(3) of that Act, and Order 6, Rule 17 was only a supplementary provision for other amendments where Section 83(3) would not apply. The Bench ruling in Kumara-swami Plllai v. Venkataramana Rao , confined amendments regarding new corrupt acts, etc., alone to the period of limitation. So the ruling of the Supreme Court regarding that matter must be confined to the provisions under the Representation of the People Act, and cannot be held to apply to the implied powers of amendment under Order 6, Rule 17, Civil Procedure Code in the case of Municipal Election Petitions where no powers of amendment similar to that of Section 83(3) of the Representation of the People Act is given. We may note that under Section 83(2) as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice is directed to be filed by the petitioner in an election petition. In view of the less drastic wording in Rule 2 regulating Municipal election petitions it is obvious that the implied powers of amendment, under Order 6, Rule 17, Civil Procedure Code given in the case of Municipal Election Petitions would be larger. Of course, it is for the Tribunal to decide what particular amendments, even within the restricted scope, it would allow or not, regard being had to the delay, and to justice and equity.

11. We are unable to agree with the ruling of Rajagopala Ayyangar, J., in Writ Petition No. 74 of 1953, where the learned Judge held against any power of amendment, at all, and did not allow amendment even by way of adding more persons in the lists under the heads of corruption and irregularity already given. Mr. Ramachandra Iyer, the learned Counsel for the opposite side, relies on the ruling of Govinda Menon, J., as he then was, in Writ Petition No. 893 of 1953, a panchayat re-election case, holding directly an opposite view to that of Rajagopala Ayyangar, J., and allowing an amendment. We consider that it will apply also to Municipal Election Petitions. Those are thus two decision by single Judges (letting alone the judgment of Rajagopalan, J., under appeal and we, constituting a Bench, have the right to choose between them or even to differ from them all. For the reasons given already we prefer the view of Govinda Menon, J., and hold that in the case of Municipal Election Petitions there is a power of amendment, under Order 6, Rule 17, Civil Procedure Code without reference to the limitation period of one month, but restricted to giving further names of persons guilty of corrupt practices and material irregularities already alleged in the petition. The Bench ruling in Kumaraswami Pillai v. Venkataramana Rao : (1956)1MLJ40 , did not directly decide this point as pointed out by Rajagopalan, J. The observations in the Bench judgment approving of the observations in the judgment of Rajagopala Ayyangar, J., must be construed to be mere obiter, as the particular point did not directly arise for decision before the Bench. So, there is no conflict between the decision of that Bench and our view now, and there is no need to refer the matter to a Full Bench. The judgment of Rajagopala Ayyangar, J., on this point in Writ Petition No. 74 of 1956, is in our opinion, wrong and is overruled. It follows that this appeal deserves to be and is hereby dismissed, but in the peculiar circumstances, without costs. Counsel's fee Rs. 100.


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