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The Panchayat Board of Senbakkam by Its President Sri A. Masilamani Vs. S.M. Gengadaran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1963)1MLJ385
AppellantThe Panchayat Board of Senbakkam by Its President Sri A. Masilamani
RespondentS.M. Gengadaran and ors.
Cases ReferredSrikantiak v. Election Officer
Excerpt:
- .....that any person who has been elected as a member of a panchayat is not qualified, or has become disqualified under sections 13, 15, 16 or 17 and such person does not admit the allegation, or whenever any member is himself in doubt whether or not he is not qualified or has become disqualified under sections 15, 16 or 17 such member or any other member may, and the executive authority shall, on the direction of the panchayat or of the inspector, apply to the prescribed judicial authority whose decision shall be final. 4. it contains two parts. the first one disqualifies a sitting member on an allegation made about his disqualification by a third party who may be another member of the panchayat or by the executive authority acting on the direction of the panchayat or of the inspector of.....
Judgment:
ORDER

1. The facts which have given rise to this writ appeal are set out succinctly in the Judgment of Veeraswami, J. in W.P. No. 978 of 1960 against which this appeal has been filed by the 1st respondent therein. The petitioner in the Writ Petition was elected as a member of the Panchayat Board of Senbakkam on 5th May, 1958. It is not in dispute that prior to his election he had been convicted for offences under Sections 348 and 330 of the Indian Penal Code and sentenced to rigorous imprisonment for three years and that at the time of the election five years had not elapsed from the date of the expiry of the period of the sentence. This would, therefore, have been a disqualification under Section 16(1) of the Madras Village Panchayat Act, 1950 (hereinafter called the Act) for his election as a member. Apparently nobody took the objection before his election. On a petition by the President of the Panchayat Board, filed in February, 1960, under Section 19(1) of the Act and numbered as O.P. No. 37 of 1960 on the file of the Court of the learned Principal District Munsif, Vellore, it was held that the present petitioner was not qualified to hold office as a member of the Panchayat under Section 19(1) of the Act and that he should, therefore, cease to hold the office.

2. Jurisdiction to disqualify an existing member of a Village Panchayat, is conferred under Section 19(1) of the Acton the prescribed judicial authority, who is the District Munsif in this case. We will presently deal in some detail with the provisions of this section. The question that arose in the Writ Petition, was whether Section 19(1) of the Act applied only to disqualifications acquired after the election of a member or whether it would apply also to disqualifications that existed prior to the election. Section 19(1) refers to certain disqualifications, enumerated in a fascicule of four preceding sections in the Act namely, Sections 13, 15, 16 and 17. Veeraswami, J., held that to disqualify a member on the score of any of the qualifications mentioned in Sections 15, 16 and 17, the disqualifications should be one acquiredafter the election and not before it. In the present case, since the conviction of the .member was prior S.M. Gengadaran v. Panchayat Board, Senbakkam : (1962)1MLJ327 to his election, and since this is a disqualification enumerated in Section 16 of the Act, the learned Judge held that Section 19(1) will not apply to this case. Consequently the learned Judge quashed the order of the District Munsif. The 1st respondent appeals.

3. Section 19(1) of the Act with which we are concerned reads:

Whenever it is alleged that any person who has been elected as a member of a panchayat is not qualified, or has become disqualified under Sections 13, 15, 16 or 17 and such person does not admit the allegation, or whenever any member is himself in doubt whether or not he is not qualified or has become disqualified under Sections 15, 16 or 17 such member or any other member may, and the Executive Authority shall, on the direction of the Panchayat or of the Inspector, apply to the prescribed judicial authority whose decision shall be final.

4. It contains two parts. The first one disqualifies a sitting member on an allegation made about his disqualification by a third party who may be another member of the Panchayat or by the Executive Authority acting on the direction of the Panchayat or of the Inspector of Local Boards. The member concerned does not admit the allegations against him, and hence he becomes a respondent in the petition. The second part of the section deals with the application of a member himself when he is in doubt about his own qualification and he seeks an authoritative decision thereon. In this case we are having an application under the former category.

5. The first part of Section 19(1) uses two phrases, (1) 'is not qualified' and (2) 'has become disqualified' , and both these phrases refer to Sections 13, 15, 16 and 17 of the Act. Before construing the two phrases by examining the related four sections, it will be worthwhile to explain the meaning of the two phrases themselves as understood in English phraseology. The phrases express two methods of acquiring a disqualification. The words 'has become' introduce the idea of 'becoming' or a change. It therefore deals with a disqualification acquired later in point of time, by one who did not have it before. The words 'has become' , or 'become' are used in other enactments, and they have been the subject-matter of interpretation by Courts. Article 190(3)(a) of the Constitution uses the word ' becomes ' in the case of a sitting member of the Legislature. Article 192(1) of the Constitution again uses the word ' become ' to define a disqualification in the case of a sitting member of the Legislature. The Supreme Court held in Election Commission v. Venkata Rao : [1953]4SCR1144 that the above Articles apply only to disqualifications to which the member becomes subject after he is elected as such and they do not apply to disqualifications acquired long before his election. In Krishnamurthi v. Deputy Registrar of Co-operative Societies, Madras (1954) 1 M.L.J. 542 Rajamannar, C.J., and Somasundaram, J., had to construe the word ' become ' used in Rule 27(2)(e) of the Rules framed under the Madras Co-operative Societies Act. The disqualification was a pre-existing relationship between a member of the Society and an employee of the society. The Bench applied the Supreme Court decision and held that the member will not cease to hold office as the disqualification was one that existed even prior to his election.

6. In accordance with the Supreme Court decision cited above if the only words to be construed in Section 19(1) are has ' become disqualified ' there can be no doubt that only disqualifications that arose after the election will be attracted by the section. But the words ' is not qualified' are also used in relation to all the four Sections 13, 15, 16 or 17. Section 13 says that no person shall be qualified for election as a member of Panchayat unless his name appears on its electoral roll. Prima facie it refers to a disqualification before the election. But as long as the member's name is not on the electoral roll, it will remain a disqualification even after the election. Section 15 refers to disqualification by conviction under Chapter IX-A of the Indian Penal Code, or under certain election laws. The first part of it prescribes that such conviction will be a disqualification for a voter. We are not here concerned with this. Secondly such convictions are also disqualifications for a person who seeks to be elected. As in Section 13, this defines a pre-election disqualification. But the disqualification will continue to remain even after the election. The third part of Section 15 says that a conviction will disqualify a member for holding office. This portion of Section 15 stresses the fact that a disqualification can be acquired after election. Section 16(1) refers to conviction for certain serious offences as well as offences involving moral turpitude, and the disqualification remains for 5 years from the date of the expiry of the sentence on conviction. Section 16(1) refers to a conviction as a disqualification for election. As in the case of Section 13 and the second part of Section 15 this can be a disqualification at the time of election but it will continue to be so even after the election. Section 16(2) refers to disqualifications on the date of nomination or election; unsound mind, being a deaf-mute or a leper, insolvent or undischarged insolvent, etc. It is obvious that these disqualifications can continue even after the election also. Section 17 states that a member shall cease to hold office if he is sentenced by a criminal Court to such punishments as are stated in Sub-section (1) of Section 16, or becomes of unsound mind, etc. Obviously it relates to disqualifications after a person has become a member.

7. It is clear that the above fascicule of four sections deals specifically with post election disqualifications in Section 15(3) and Section 17 and with pre-election disqualifications in the remaining sections, but the latter may continue as disqualifications even after the election. With reference to the principles laid down in the Supreme Court decision cited above and followed in Krishnamurthi v. Deputy Registrar of Co-operative Societies, Madras (1954) 1 M.L.J. 542 the words ' has become ' in Section 19(1) will have reference to post-election disqualifications specifically mentioned in the appropriate sections within the fascicule. At the same time the phrase ' is not qualified ' used in Section 19(1) is comprehensive enough, and covers all the disqualifications mentioned in the fascicule irrespective of when they arose provided that they exist in the member on the date of the application for disqualifying him under Section 19(1) of the Act.

8. In the judgment now under appeal the learned Judge split up the fascicule of four sections and observed that there was dichotomy between the qualifications prescribed in Section 13, and the disqualifications enjoined by Sections 15, 16 or 17. Since Section 13 pertains to a qualification, he held that the words ' is not qualified ' has reference to it. At the same time the learned Judge recognised that it would have been more appropriate if the word ' was ' had been used instead of the word ' is ' in the phrase just now mentioned. He next observed that Sections 15, 16 and 17 deal only with disqualifications, and therefore, the words ' is not qualified ' will not have reference to these three sections. After adopting a reasoning based upon the abovementioned dichotomy in the language of the sections the learned Judge held that the words ' has become disqualified ' will refer to disqualifications in Sections 15, 16 and 17 and the words ' is not qualified ' will refer to Section 13. Since the appellant in the present case is alleged to be disqualified under Section 16, the learned Judge was of the view that his case would not come under Section 19(1) as the disqualification existed before the election. This is the basis on which he quashed the order.

9. The dichotomy in the language of the sections referred to above ignores the fact that Sections 15 and 16 also refer to disqualifications that existed at the time of election. As pointed out above the words ' has become ' or ' become connote the idea of something newly acquired. Further, the words ' is not qualified ' and the words ' is disqualified ' mean the same thing, and there is no point in drawing a distinction on that account between Section 13 on the one hand and Sections 15, 16 and 17 on the other. The learned Judge himself has suggested that the word ' was' should have been more appropriately used before ' not qualified ' and not the word ' is ' . But the Courts have to take the language of an enactment as it is for the purpose of construction, and cannot import a hypothetic alteration of the language for the purpose. Further, in the second part of Section 19(1) when a member feels a doubt about his disqualifications, both the phrases ' is not qualified ' and ' has become disqualified ' are used without making any distinction in relation to Sections 15, 16 or 17. This would show that it is not correct to make a distinction that the words ' is not qualified' should apply to Section 13 and the words ' has become disqualified' to Sections 15, 16 or 17. It is, therefore, clear that the plain language of Section 19 of the Act, in the context of the four earlier sections referred to therein confirms the view that for dealing with an application to disqualify a member under Section 19 of the Act, the disqualifications mentioned in the four sections will apply irrespective of the fact whether they arose before of after the election.

10. Veeraswami, J., was of the opinion that the decision of the Full Bench of this Court in Selvarangaraju v. Doraiswami : (1929)57MLJ241 gave support to his interpretation. The Full Bench dealt with an election petition under Section 51 of the District Municipalities Act (V of 1920). That section is analogous to Section 19(1) of the Madras Village Panchayats Act but with a prominent difference. In the first part of the section only the words ' is disqualified ' are used in relation to previous sections 48, 49 or 50, and does not use the words ' has become disqualified ' for the purpose. The words ' has become disqualified ' are used in the second part when a member feels a doubt about his disqualifications and seeks a decision thereon. The question that arose before the Full Bench was whether a disqualification on the ground that at the time of nomination the member was an Honorary Magistrate and thus disqualified under Section 49(2)(iv) of the Madras District Municipalities Act could be considered only in an election petition before the Election Court or could be also considered on a petition before the District Judge under Section 51 of the Act. Coutts Trotter, C.J., was of the view that Section 51 could only apply where there had been an election of the candidate as a Councillor, which was apparently valid on the face of it, and it could not apply to the inchoate stage of nomination, which had not resulted in at least something which purported to be an election. Wallace, J., observed that the wording of Section 51 was unhappy. The present tense ' is disqualified ' could not be aptly used of Section 49 since it referred to the present state of the Councillor who had been elected, whereas Section 49 referred to his prior state on the date of the nomination. It was not clear what differentiation was intended between ' is qualified ' in reference to an allegation by outsiders and ' has become disqualified ' in reference to the doubts of the Councillor. After expressing the above doubts, Wallace, J., held that the general sense of the section seemed to be that when any question arose as to whether a person elected as Councillor was disqualified under Section 49, at the time of the nomination or election or had since the election become disqualified under Section 50, the matter should be moved before the District Judge by a Councillor or the Chairman. Wallace, J., also observed that Section 51 appliee to cases where the election had gone through without challenge and something had occurred thereafter which raised doubt about the qualification of some sitting Councillor. The District Judge under Section 51 decides where an election has not been challenged and has stood, whether subsequent doubts as to the qualification of any Councillors are justified, and his decision on that point is final.

11. It is to be noted that neither Coutts Trotter, C.J., nor Wallace, J., considered that Section 51 will apply only to disqualifications that arose after election. The stressed the fact that when an election has gone through without challenge, and the qualification of a member is attacked after his election by a Councillor or a Chairman the matter can be properly decided under Section 51, by an application before the District Judge. They were really concerned with the forum where relief has to be sought in regard to disqualifying an elected member and not with the time of acquiring the disqualification.

12. Ananthakrishna Ayyar, J., the third Judge in the Full Bench, observed at page 250 :-

The expressions ' is disqualified ' and 'has become disqualified ' occurring in the section seem to me to postulate a case where a person has validly become a Councillor either by means of a proper and regular election, or by a proper appointment; and they seem to provide only for cases where a person has been validly and properly elected or appointed as a Councillor, but where a question is raised that, owing to the present existence in him of a particular disqualification he should cease to be a Councillor.

Here again the learned Judge stressed only ' the present existence ' and did not refer to the time of acquiring the disqualification--whether it was before or after the election. This is also seen from the subsequent observation of the learned Judges:

If the above view be correct, then Section 51 could not apply to a stage prior to such person having become a Councillor; it cannot apply to the stage of 'nomination' of candidates, and dispute about the disqualification of a candidate who has been 'nominated'.

After making the above observations, the learned Judges in the Full Bench considered the question whether there was any conflict between the jurisdiction conferred on the District Judge under Section 51 of the District Municipalities Act, and the jurisdiction conferred on the Election Court when the election is challenged by the rival candidates in an election petition. They emphasised that there was really no conflict because Section 51 applies to the stage after the election has gone through without challenge whereas the jurisdiction of the Election Court relates to a challenge of the election itself by a voter or a candidate. A similar point came up for decision in the Andhra High Court before Subba Rao, C.J., (as he then was) and Bhimasankaram, J., in Srikantiak v. Election Officer (1956) A.W.R. 1161 : A.I.R. 1957 AP 683. They had to interpret sections 48, 49 and 51 of the District Municipalities Act (Madras Act V of 1920). The view of the Andhra High Court was that Sections 48(1) and 49 specified the grounds of disqualification for election as a Councillor, that is to say, a person who suffers from any of the disabilities mentioned therein is not qualified even to stand for the election. It was right therefore that there should be an authority to disallow the candidature of a person subject to any such infirmity. But the Legislature at the same time contemplated that it might happen that the disqualification was not noticed at the time of the election; and where such was the case, an elector or a rival candidate might in an election petition impeach the validity of the election on the ground that the returned candidate was not qualified for election. Further, if no such petition was filed and a person became a Councillor, even then his disqualification at the time when he stood as a candidate might still be brought up at the instance of the persons named in Section 51 for consideration by the District Judge. However, the Andhra High Court differed from the view of the Full Bench of the Madras High Court that there would be no conflict of jurisdiction. It might be possible that in an election petition a particular view about a disqualification was taken. But that would not preclude any subsequent proceedings under Section 51 where the same question might come up for consideration with possible conflict of jurisdiction. But this aspect of a conflict of jurisdiction does not arise for consideration in the case before us.

13. It is clear in view of the foregoing discussion that there was no proper basis for the distinction drawn in the jurisdiction under appeal by the learned Judge between Section 13 on the one hand and Sections 15, 16 and 17 on the other, nor for the view taken by him that a disqualification under Section 16(1) if acquired before the election cannot be relied upon for unseating a sitting member by an application under Section 19(1) of the Act.

14. The appeal is allowed with costs throughout. The Writ Petition is dismissed and the rule nisi is discharged. Advocate's fee Rs. 100 each for the appeal and writ.


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