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P.R. Narayanaswami Chettiar Vs. R. Subbaratnam Aiyar and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai
Decided On
Judge
Reported in122Ind.Cas.33; (1929)57MLJ551
AppellantP.R. Narayanaswami Chettiar
RespondentR. Subbaratnam Aiyar and anr.
Cases ReferredThevar v. Murugaiyan Chettiar
Excerpt:
madras district municipalities act (v of 1920), sections 51 and 55 - election rules, rule 11a--allegation of commission of offences under section 52 in preparation of electoral roll proof of result of election having been affected, whether necessary--finality of electoral roll, whether prevents inquiry into commission of offence--revision against order setting aside election on ground of commission of offence--question of sustainability of conviction, whether can be raised. - .....on the application of a voter.2. the facts of the case may be stated thus,3. in october, 1925, a list of voters was prepared for the ward in question. this list contained 61 names which were not included in the previous list of voters. the election was held in september, 1926. forty one of the sixty-one new voters attended the election and voted. the petitioner who was then acting as an agent for the 2nd respondent, who was one of the candidates for the election, challenged these forty-one votes on the ground that they were not validly put on the electoral roll. even when the names appeared in the preliminary list, ex. a3 objection was taken to the inclusion of these names, but the revising authority decided against the objection. the election resulted in the election of the 1st.....
Judgment:

Vepa Ramesam, J.

1. This revision petition is filed against the order of the Additional Subordinate Judge of Trichinopoly in O.P. No. 393 of 1926 setting aside the election of the 1st respondent in the Court below to the 12th ward of the Trichinopoly Municipality on the application of a voter.

2. The facts of the case may be stated thus,

3. In October, 1925, a list of voters was prepared for the ward in question. This list contained 61 names which were not included in the previous list of voters. The election was held in September, 1926. Forty one of the sixty-one new voters attended the election and Voted. The petitioner who was then acting as an agent for the 2nd respondent, who was one of the candidates for the election, challenged these forty-one votes on the ground that they were not validly put on the electoral roll. Even when the names appeared in the preliminary list, Ex. A3 objection was taken to the inclusion of these names, but the revising authority decided against the objection. The election resulted in the election of the 1st respondent by a majority of 270 votes. It is, therefore, clear that, even if the 41 voters were not entitled to vote a their inclusion in the electoral roll did not materially affect the election. The 1st respondent would have been successful in any event. But the application to set aside the election of the 1st respondent was made under Rule 11 (a) of the Rules for the decision of disputes as to the validity of elections. Rule II (6) does not obviously apply as the election has not been materially affected by the inclusion of the 4l voters. The ground of the petition is that the 1st respondent who was returned as the candidate, 'has committed or abetted the commission of any one of the offences described in Sections 52 to 58 of the District Municipalities Act.'

4. Section 52 of the Act refers to the case of a person who does not possess the qualifications to vote claiming such qualifications or by any other deceitful means procuring improper entry of names in the electoral roll. Section 55 refers to the offence of a person who applies for a ballot paper at an election knowing that he is not qualified to vote thereat. The Subordinate Judge has found that the 1st respondent was guilty of the offence under Section 52 (1) and of having abetted the offence under Section 55 and set aside the election. For the purpose of Rule 11 (a) it is not necessary that the election itself should be materially affected by the commission of any of the offences. The 1st respondent files this revision petition.

5. It is argued for him by Mr. Ramadoss that the electoral roll is final and that after the electoral roll was completed there can be no question of the offences being committed under Section 52 or 55 of the Act and no such enquiry can be made. If this contention is correct, there would never be any scope for the operation of Sections 52 and 55. But apart from this obvious consideration Mr. Ramadoss referred to some decisions of this Court. The decision in Palanisatni Pillai v. Srinivasarangachariar 85 Ind. Cas. 322 : 47 M.L.J. 795 : 20 L.W. 851 : A.I.R. 1925 Mad. 160 : (1925) M.W.N. 283 refers to the case of a candidate's name being wrongly entered in the electoral roll. It was held that the electoral roll was final. At any rate, there was no question in that case of any offence having been committed under Sections 52 and 55. That case cannot, therefore help the petitioner. In Janardhanan v. Verghese 87 Ind. Cas. 113 : 48 M.L.J. 451 : (1925) M.W.N. 305 : A.I.R. 1925 Mad. 707, it was held that no ground was made out for an enquiry under Rule 11. Krishnan, J.'s decision in that case is really against the petitioner. He there refers to Rule 11 (a) and observes:

I have looked carefully into the allegations in the petitions filed by the objectors in these two cases but I can find none there of any offence having been committed under e. 52 by the candidates or their agents.

6. This observation shows that, if appropriate allegations had been made in that case, the learned Judge would have held that there was a case for enquiry and there being no such allegations it was held that the electoral roll was final. Even when there are such allegations it may be that the electoral roll is final in the sense that the voters who were wrongly put in the electoral roll are entitled to vote and their votes may be counted. But all this does not preclude any enquiry under Sections 52 to 58. In R.S. Naidu v. J. Ramier 97 Ind. Cas. 450 : 51 M.L.J. 701 : (1926) M.W.N. 561 : A.I.R. 1926 Mad. 947 : 24 L.W. 863 the election was for the office of the Chairman of a Municipality and there was no question of an electoral roll or of any offence under Section 52 being committed. The decision in Lakshmanan Chettiar v. Kannappar : AIR1927Mad93 , relates to an election in Madras and it was held that the Chief Judge of the Presidency Small Cause Court was not a Court. On the other hand in Athimoolam Servai v. Gropalakrishna Kone 105 Ind. Cas. 216 : 54 M.L.J. 269 : 26 L.W. 323 : (1927) M.W.N. 646 : A.I.R. 1927 Mad. 921, my brother, Jackson J., held that an allegation that an offence under Section 52 has been committed may be enquired into by the Court and ought to be enquired into. I entirely agree with this decision and with observation at page 271 Page of 54 M.L.J,-[ed.]. Mr. Ramadoss suggested that this decision was not followed in the matter of an election from the Kistna District to the Legislative Council. That decision is not a decision of a Court but of a Special Tribunal. We have not got a report of that decision and I am not bound by it. But I may observe that in the matter of the Election Offences Act bearing on elections to the Legislative Council there is no section corresponding to Section 52 of the District Municipalities Act. If an allegation is made in the matter of an election to the Legislative Council that a candidate committed acts which would amount to an offence under Section 52 of the District Municipalities Act, it would not be an offence under the Election Offences Act relating to the Legislative Council. The Special Tribunal who decided that case was therefore right in disallowing an enquiry into those allegations. The decision in Vaidya-natha Thevar v. Murugaiyan Chettiar : AIR1928Mad1077 relates to the election of a President of a Union Board. There can be no question of an electoral roll and this case cannot help the petitioner. I am, therefore, of opinion that the first contention of Mr. Ramadoss fails.

7. The next point argued by the learned Advocate is that the facts proved do not amount to an offence within the meaning of Sections 52 and 55 and no conviction could be sustained under these flections on the evidence before the Court. In my opinion the latter consideration is irrelevant. We are not concerned now with a criminal case, nor is there any conviction of the first respondent for any offence. I am not to be understood as conceding that the evidence on record will not be sufficient to sustain such conviction. It may be enough or it may not be enough. It is not a matter with which I am concerned or the Subordinate Judge is concerned. The only question in this case is whether in the opinion of the Subordinate Judge an offence has been committed and whether there is evidence for the conclusion that an offence has been committed. In my opinion there is ample evidence in this case to sustain the findings of the Subordinate Judge. Sitting in revision I am not competent to weigh the evidence. It is enough for me to observe that there is evidence to go to a Jury. The following facts namely (1) that the 61 voters were not in the prior list, (2) that the new list made on or about the 28th October stated that all these persons began their profession on the 1st October, (3) that this list was not signed by the Bill Collector of the Municipality but by the 1st respondent and he took it to his fellow councillor of the ward who signed it without scrutinising its contents (Vide the evidence of P. W. No. 2) and then only the bill collector signed it, (4) that all the 61 persons were omitted in the next list and thus they continued as voters only for a period of six months, the omission being before the election now in question, (5) that their profession tax was paid by some unknown person (it does not appear that notices were served on them; their signatures do not appear on the other side of the notices served which is the usual practice), and (6) that at the time when the profession tax is said to have been paid, most of them had already left the Municipality, their addresses were not known and they were not residents therein-in my opinion support the conclusion of the Subordinate Judge.

8. In the result the petition is dismissed with costs of the 1st respondent who is the only person that appears before me.


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