Skip to content


Chellaswami Konar Vs. Korusal Sangama Kayakar - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai
Decided On
Reported inAIR1927Mad935
AppellantChellaswami Konar
RespondentKorusal Sangama Kayakar
Excerpt:
- .....were registered and scrutinised. it is argued that as the nomination papers were presented to the vice-president and not to the president of the taluq board and as the nomination papers were scrutinized similarly not by the president but by the vice-president, the election itself should be declared to be void. i agree with the subordinate judge in thinking that at most the provision with regard to the president and not the vice-president being an authority for the said purpose, cannot be regarded as mandatory and that any infringement of the provision can only be an irregularity which would be available for setting aside the election only if and when it should be made out that such irregularity affected the result of the election. there has been not even an attempt made to show that the.....
Judgment:

Srinivasa Aiyangar, J.

1. The petitioner in this civil revision petition has applied to this Court for revising and setting aside the order of the Subordinate Judge of Ramnad dismissing an election petition filed by the petitioner for setting aside the election of the respondent as a member of the Taluq Board of Sivakasi to represent the Sattur circle.

2. The learned Advocate-General who appeared for the petitioner argued that having regard to the grounds of the petition this Court had jurisdiction to entertain the petition and set aside the order. It has been held in this Court in a number of cases that this Court has jurisdiction to interfere in proper cases. But I do not propose to discuss the question in what cases this Court would or should interfere in revision. It may generally be stated that in cases of gross miscarriage of justice this Court as the Court of supervision would have the requisite power. There can also be no doubt that though the statutory tribunal to give a a final decision with regard to the election may be the lower Court, still if this Court should find on revision that by reason of any misdirection of itself or misconstruction of any important provision of law or rule, the decision of the lower Court has been a decision on a basis different from that contemplated by the statutory provisions, then this Court would, apart altogether from any question of jurisdiction or material irregularity affecting it, have the power to revise the order. But as, on the merits of the petition, I have come to the conclusion that no case has been made out for the interference by this Court, it has become unnecessary to deal with or decide the question whether the circumstances are such as to justify this Court invoking such power.

3. Two points have been argued by the learned Advocate General with regard to the merits of the decision. The first related to the agency by which nominations in this case were registered and scrutinised. It is argued that as the nomination papers were presented to the vice-president and not to the President of the Taluq Board and as the nomination papers were scrutinized similarly not by the President but by the vice-president, the election itself should be declared to be void. I agree with the Subordinate Judge in thinking that at most the provision with regard to the president and not the vice-president being an authority for the said purpose, cannot be regarded as mandatory and that any infringement of the provision can only be an irregularity which would be available for setting aside the election only if and when it should be made out that such irregularity affected the result of the election. There has been not even an attempt made to show that the violation of the provision could even be regarded as having possibly affected the result of the election. But I am unable to agree with the learned Subordinate Judge in his vie v. that there was even an irregularity. The irregularity alleged consisted in the vice-president and not the president accepting the nomination papers and afterwards scrutinizing the same. Though the electoral rules speak of the president as the proper authority, still, under the Act, itself, is provided by Section 23, Clause 2, that during the temporary absence of the president of the Taluq Board, the President's function shall devolve on the vice-president. The learned Advocate-General argued as if the expression 'temporary absence' indicated some such thing as temporary absence on leave, or, in other words, the temporary cessation of functioning altogether by the president. To put it in another way, it was contended that if the President was merely in the house or even as acting as President elsewhere there is no case of temporary absence of the president. It seems to me that having regard to the language employed it is impossible to accede to such a contention. The term 'absence' indicates the non-presence at a particular place and at a particular point or period of time. The word 'temporary' is sufficient also in itself to indicate that the absence has reference only to a period of time. If a particular place and time. therefore, had been fixed for the purpose of receiving or registering nominations and the President of the Taluq Board being still the President is not at that place at the time, he mist be regarded as temporarily absent, and there is no reason why, if there and then the vice-president should be present, the President's function should not devolve on him as provided in C1, 2, Ss, 23. The expression 'absence' while being apt and sufficient to indicate the non-presence at a particular place and time, is neither apt nor sufficient to indicate any cessation of the exercise of powers. It is impossible to construe the expression 'absence' as either absent from office or absent from the taluq or other territorial division. If any such thing had been intended, I feel sure that the legislature would and should have employed language much clearer and much more apt for the purpose.

4. It is also impossible to agree with the view taken by the learned Subordinate Judge that a direction to do something subsequent to the passing of .an order as contained in prov. (b) to Section 23, can be regarded as a condition precedent to the validity of an order. However, in the view I have taken of the expression 'temporary absense' it becomes unnecessary to consider the further question whether the telegraphic communication from the President to the vice-president is a proper delegation in writing of his duties within the meaning of Section 23 of the Act.

5. The other point that was argued by the learned Advocate-General was that the pulling arrangements at the Union office polling station at Sattur were so unsatisfactory that about two hundred voters were not afforded a fair and free opportunity to vote at that polling station. With regard to this the Subordinate Judge has found as a fact that it has not been proved that as many as two hundred were so prevented. It is perfectly clear, however that the arrangements for the polling at the particular station were very unsatisfactory. It is a matter greatly to be regretted that the arrangement made by the authorities for the pulling should have been such as to have denied an opportunity to many voters to record their votes.

6. In these days of democratic institutions I think it behoves the authorities, if only to escape the charges of partisanship and ulterior motive, to make suitable arrangements so as to make it possible for every voter to come and record his vote easily. However, in this case, the learned Subordinate Judge, has, in fact, found that, taking it at the most and at the best for the petitioner, no more than 40 or 50 could be held to have been so prevented. This is a finding of fact with which I cannot interfere in revision. But the learned Advocate-General has argued that the moment a serious irregularity like that is proved, the burden of establishing that it has not affected the result of the election is on the respondent. But I do not see how any question of burden of proof now arises on the actual finding of fact by the Subordinate Judge.

7. I am unable to say that this finding of fact by the learned Subordinate Judge has been vitiated by any mistake or misdirection with regard to the burden of proof in such cases.

8. In view of such a finding, I am unable to hold that it has not been established affirmatively that the irregularities, such as there were, did not affect the result of the elections.

9. Lastly, in this case, I may also observe that this petition relates to an election which was held in June of the year 1921. The judgment of the Subordinate Judge was pronounced in December 1924, and this civil revision petition was presented in March 1925, and for some reason re-presented on the 17th July 1925, and finally admitted in August 1925. It has been pending, therefore, in this Court for considerably over a year. Though the petitioner may not be the person responsible for all this delay, still the Court should be disinclined after such length of t me to disturb an election which has been given effect to and acted on for about 30 months. If a civil revision petitions should be admitted in respect of election petitions, I think care should be taken for disposing of them as early as possible; otherwise it goes without saying that the vary object of the petition may be entirely frustrated.

10. In the result the petition is dismissed with costs.


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