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E.M. Narayanaswami Vs. T.V. Chinnathambi and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Reported in(1969)1MLJ601
AppellantE.M. Narayanaswami
RespondentT.V. Chinnathambi and anr.
Cases ReferredReg v. Vine L.R.
Excerpt:
- .....that if a statute creates disqualifications for the public good and not as a punishment to the person disqualified, it should not be treated as penal so as to exclude its being construed retrospectively. the language employed in section 25 of madras act xxxv of 1958 ''a person who has been sentenced' is descriptive of a candidate at the time of nomination. grammatically considered, the words predicate certain quality of the subject which may just as well attach by a conviction before as after the new act.8. there is no substance in the contention that the words 'date of expiration there of' should mean the date of conviction and sentence and the period of five years must be counted from the date on which the sentence was passed. this is to ignore that the section provides for the.....
Judgment:

M. Natesan, J.

1. This appeal arises out of proceedings under Article 226 of the Constitution to quash the order of the Election Tribunal (District Munsif of Tiruchirapalli) setting aside the election of the appellant held on 2nd February, 1965 under the Madras Village Panchayat Act (XXXV of 1958) to Madakkudi Panchayat. Even at the time of the nomination of the appellant on 31st January 1965 as a candidate for the election, the nomination was challenged before the Presiding Officer on the ground of his disqualification under Section 25 (1) of the Act. But the Presiding Officer overruled the objection and allowed the appellant to contest The appellant got elected. On the Election Petition filed by the first respondent herein, a defeated candidate at the election, the Election Tribunal, finding the appellant disqualified under Section 25 (1) of the Act, set aside his eletion and declared the first respondent as duly elected in the place of the appellant. The basis of the disqualification is a sentence of imprisonment suffered by the appellant for an offence involving moral delinquency.

2. There is no dispute that the appellant Was found guilty under Section 406, Indian Penal Code, for an offence of misappropriation and convicted and sentenced to two months R. I. on the 10th of June, 1959. The appeal from the conviction and sentence was dismissed on 13th July, 1959 by the District Magistrate and a revision thereon to the High Court was dismissed on 28th July, 1960 confirming the conviction and sentence. The appellant had meanwhile got himself elected to the Panchayat under Act X of 1950, in June, 1959. After the dismissal of the revision by this Court, the appellant had to go to jail to undergo the sentence. He entered jail on 19th August, 1960 and after undergoing the sentence came out of jail on 3rd October, 1960.

3. Section 25 (1) of the Madras Village Panchayat Act XXXV of 1958 runs thus:

A person who has been sentenced by a criminal Court to imprisonment for any offence involving moral delinquency (such sentence not having been reversed) shall be disqualified for election as a member while undergoing the sentence and for five years from the date of the expiration thereof.

While not disputing that the offence for which the appellant was convicted is one involving moral delinquency, two contentions are raised with reference to Section 25 (1). First it is urged that Madras Act XXXV of 1958 came into force only on 2nd October, 1961, and that to apply Section 25 (1) to the appellant with reference to his conviction and sentence in 1960, would be to give retrospective effect to the provision. Our attention was drawn to Section 16 of the Village Panchayats Act (X of 1950) which was current at the time the appellant was convicted and during the period he underwent the sentence, whereunder, for a sentence by a criminal Court to disqualify a candidate, the sentence must be transportation or imprisonment for a period of more than six months. Act XXXV of 1958 has prescribed no minimum period of imprisonment and any sentence of imprisonment would disqualify the candidate. It is urged that, as the new Act imposed a disability which did not exist when the conviction was suffered, the new Act XXXV of 1958 must be held to be prospective in its operation. It is submitted that every Act which attaches a new disability in respect of transactions already passed, must be presumed to be intended not to have retrospective effect.

4. In our view, the application of Section 25 (1) to circumstances as in this case is not really to give retrospective effect to the section. While there is a presumption that an Act does not render unlawful what was originally lawful, there is no scope for the application of the presumption here, particularly having regard to the clear language of Section 25. The Act, while conferring a right to get elected, prescribes the existence of certain facts as qualifying or disqualifying a candidate for election under the Act. The fact that the Act depends, for its qualifying or disqualifying person for election, on facts and circumstances existing at the time of its application which may have had their origin in past events, or which may have been existing from a time antecedent to the coming into force of the Act, does not, properly speaking, by itself, make the Act retrospective or retroactive in its operation. There is no question of relation back in time. The presumption against retrospectivity of a statute is applied only to preserve an accrued or vested right. To avoid the operation of a statute on the basis of the presumption, the right affected must be a vested right in the strict sense of the expression. The existence of a mere option, or of an opportunity to take advantage of rights and privileges under an existing enactment in citizens generally or any class of them, without any act done by an individual availing for himself of the option or the opportunity is not properly, a right accrued ' or ' right vested'. The appellant has no vested right to get elected and the fact that he was not disqualified under the prior Act is neither here nor there. His nomination was filed under the new Act. The Act prescribes its own qualifications and disqualifications for the members. Retrospective operation, properly so described of an Act, is one matter, modifying or affecting rights provided for by an existing statute on certain events, which rights have not been availed of and vested in an individual, the requisite events not happening before the new Act came into existence, is another. Most statutes act on existing state of things. Of course, a statute may expressly or by implication limit itself to events and conditions happening after the statute comes into force. Sections 8 of the General Clauses Act (Madras) referred to does not, in the least, help the appellant.

5. The intendment of the Act is clear. Panchayat electorates are generally closed and compact bodies, and members of the Panchayat are expected to be in close contact with the electorate. They cannot live in anonimity. For proper functioning of a Panchayat members have to command the confidence of the villagers and the Legislature might well have thought that in such circumstances, any imprisonment, whatever be its duration, provided it involves moral delinquency, debars a candidate from membership. It will be anomalous, why inequitable, if a person who has undergone, say, four months imprisonment for an offence involving moral delinquency and comes out of jail just a day before coming into force of the new Act could stand for election, while another who has been a day after the new Act came into force sentenced to imprisonment for four days, for a similar offence, is disqualified for five years and could not contest the election. But that will be the result of acceding to the argument for the appellant.

6. Learned Counsel for the appellant referred to the decision in In re School Board Election for Parish of Pulborough Bourke v. Nutt L.R. (1894) 1 Q.B. 725. In that case a person had become bankrupt prior to the English Bankruptcy Act of 1883 and had been elected a member of a School Board after passing of the Act. Section 32 of the Bankruptcy Act, 1883 provided that 'where a debtor is adjudged bankrupt, he shall....be disqualified or....being elected to the office of member of a school board ' On the question whether the disqualification under the Bankruptcy Act applied to the person, the Court of Appeal by a majority held that the section had no retrospective operation, and therefore, the disqualifications created by it did not apply to a person, made a bankrupt before the passing of the Act. The decision is clearly distinguishable and is based on an interpretation of the words is adjudged bankrupt. It was further pointed out that the Act was not a School Board Act, but a Bankruptcy Act, for the primary purpose of defining the liabilities and consequences of bankruptcy, and the new disability was imposed by the Bankruptcy Act on a bankrupt. The well-known principle in the construction of statutes, that where words admit of two constructions they are not to be construed so as to produce a retrospective effect or impose disabilities on the passing of the Act, was applied.

7. The decision directly in point is Reg v. Vine L.R. 1950 Q.B. Cases referred to and distinguished in the School Board Case L.R. (1894) 1 Q.B. 725. There Section 14 of the Wine and Beer Amendment Act, 1870 provided that, 'every person convicted of felony shall for ever be disqualified from selling spirit by retail.' It was held that the disqualification applied to a man who had been convicted before but had obtained a licence after the Act was passed. Mellor, J. said:

It appears to me to be the general object of this statute that there should, be restraints as to the persons who should be qualified to hold licences, not as a punishment, but for the public good, upon the ground of character.

The case proceeded on the principle, that if a statute creates disqualifications for the public good and not as a punishment to the person disqualified, it should not be treated as penal so as to exclude its being construed retrospectively. The language employed in Section 25 of Madras Act XXXV of 1958 ''a person who has been sentenced' is descriptive of a candidate at the time of nomination. Grammatically considered, the words predicate certain quality of the subject which may just as well attach by a conviction before as after the new Act.

8. There is no substance in the contention that the words 'date of expiration there of' should mean the date of conviction and sentence and the period of five years must be counted from the date on which the sentence was passed. This is to ignore that the section provides for the passing of five years from -' the date of expiration thereof.' The effect of the reference back can only be, having regard to the previous words, that he shall be disqualified for election as a member while undergoing the sentence and for five years from the date on which, the sentence the person was undergoing; expired, that is, five years from the completion of the term of imprisonment. In the present case, the appellant came out of jail on 3rd October, 1960 and the disqualification subsisted for five years from that date. The disqualification ended with 2nd October, 1965. It follows that the Election Tribunal correctly set aside the election of the appellant.

9. The appellant challenges the order of the Tribunal declaring, in the circumstances, the election petitioner, the defeated candidate, to be duly elected in the place of the appellant. In our view, the challenge has to prevail. The ward in question was a three members constituency and there were five nominations. Though the nomination of the appellant was challenged, the Presiding Officer overruled the objection, and, one of the candidates Ramiah, withdrew his candidacy within the prescribed time. Among the contesting candidates, the appellant secured 308 votes and, of the other two who were elected, one got 323 votes and another, 316 votes. The election petitioner who was defeated secured only 13 votes. The Election Tribunal is conscious that it is not bound to declare the defeated candidate elected and may order re-election. One cannot speculate that Ramiah would have withdrawn his candidacy even if the appellant's nomination had. been rejected. In our view, it would be a mockery of democracy, if the defeated candidate who had secured only 13 votes while others inclusive of the appellant each secured over 300 votes, should be declared elected. In the result, while holding that the election of the appellant has been properly set aside, we have to quash the order of the Election Tribunal declaring the election petitioner to be duly elected. It follows that there is a vacancy and there will have to be fresh election. Under Rule 12 of the Rules for decision of election disputes relating to Panchayats, at the conclusion of the enquiry, if the Election Court declares the election of the returned candidates void, it shall further pass an order either (a) declaring that another party to the petition who has under the rules claimed the seat has been duly elected or ' (b) ordering a fresh election. Therefore, proceeding Under Article 227, we direct the Election Tribunal to pass appropriate orders in the circumstances.

10. The writ appeal succeeds to the extent indicated above. The parties will bear their respective costs.


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