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Chellasami Konar Vs. Korusalsangama Nayakar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in103Ind.Cas.821
AppellantChellasami Konar
RespondentKorusalsangama Nayakar
Excerpt:
madras local boards act (xiv of 1920), section 23, clause 2 - rules for conduct of elections--election to union board membership--'temporary absence, meaning of--president absent at place of receiving nomination paper--vice--president, whether can act--irregularity--high courts--revision in election cases--interference. - .....regarded as having possibly affected the result of the election. but i am unable to agree with the learned subordinate judge in his view that there was even an irregularity. the irregularity alleged consisted in the vice president and not the president accepting the nomination papers and afterwards scrutinising the same. though the electoral rules speak of the president, as the proper authority, still, under the act itself, it is provided by section 23, clause (2) that during the temporary absence of the president of the taluk board the president's functions had devolved on the vice-president the learned advocate general argued, as if the expression 'temporary absence' indicates some such thing as temporary absence on leave or in other words the temporary functioning altogether by the.....
Judgment:

Srinivasa Iyengar, 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 Taluk 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 the final decision with regard to the election may be the Local Court, still, if the 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 to that contemplated by the statutory provisions then this Court would, apart altogether from any question of jurisdiction, or material illegality affecting it, have the power to revise the order. But on the merits of the petition, l have came 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 with the question whether the circumstances are such as to justify this Court, invoking such power. Two points have been argued by the learned Advocate General with regard to the merits of the decision. The first related to the emergency by which nominations in the case were registered and then sanctioned. It is argued as the nomination papers were presented to the Vice President and not to the President of the Taluk Board, and as the nomination papers were sanctioned 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 provisions with regard to the President, and not the Vice-President being the authority for the same 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 an irregularity affected the result of the election. There has been not even an attempt made to show that the citation of the provision could be even regarded as having possibly affected the result of the election. But I am unable to agree with the learned Subordinate Judge in his view that there was even an irregularity. The irregularity alleged consisted in the Vice President and not the President accepting the nomination papers and afterwards scrutinising the same. Though the electoral rules speak of the President, as the proper authority, still, under the Act itself, it is provided by Section 23, Clause (2) that during the temporary absence of the President of the Taluk Board the President's functions had devolved on the Vice-President The learned Advocate General argued, as if the expression 'temporary absence' indicates some such thing as temporary absence on leave or in other words the temporary 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 'temporary 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 of nominations and the President of the Taluk Board being still the President is not at that place at the time, he must be regarded as temporarily absent, and there is no reason why if then and there the Vice-President should be present, the President's function should not devolve on him as provided in Clause 2 of Section 23. The expression 'absence' which 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.

3. It is also impossible to agree with the view taken by the learned Subordinate Judge that the direction to do something subsequently to the passing of an order as contained in proviso (b) to Section 23 can be regarded as condition precedent to the validity of an order. However, in the view I have taken of the expression 'temporary absence' it becomes unnecessary to cousider 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.

4. The other point that was argued by the learned Advocate-General was that the following 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 bean proved that as many as two hundred were so prevented, It is perfectly clear, however, that the arrangements for the poll in gat the particular station were very unsatisfactory. It is a matter greatly to be regretted that the arrangement made by the authorities for polling should have been such as to have denied an opportunity to many voters to record their votes.

5. 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, as a 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.

6. 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.

7. In view of such a finding, lam unable to hold that it has not been established affirmatively that the irregularities, such as there were, did not affect the result of the election.

8. Lastly in this case I may also observe that this petition relates to an election which was held in June of the year 1924, The judgment of the Subordinate Judge was pronounced in December 1921 and the civil revision petition was presented in March 1925 and for some reason represented 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 time to disturb an election which has been given effect to and acted on for about 80 months. If a civil revision petition 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 very object of the petition may be entirely frustrated.

9. In the result the petition is' dismissed with costs.


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