T VNARASINGAPPA Vs. T PSIDDAPPA

JUDGEMENT

(1.) The point for consideration in this appeal is whether the learned Civil Judge had jurisdiction to entertain the election petition filed before him by the present Appellant under Section 20 of the Mysore Town Municipalities Act 1051. The ground on which the election of Respondent was sought to be set aside was that not being 25 years of age he was disqualified to be a Municipal Councillor by virtue of Section 14 (1) (e). Under Section 14 (3) it is provided that, if any question or dispute arises whether a vacancy has occurred under that section, the orders of the Government shall be final for the purpose of deciding such question or dispute. Under Section 20 of the Act any candidate who stood for election or any ten persons qualified to vote at that election, may apply to the Election Commissioner for the determination of the validity of the election. The learned Civil Judge before whom the election petition came up for consideration in his capacity as Election Commissioner held that the only forum before which the question of disqualification should be raised was the Government by virtue of Section 14 (3) and that, therefore, the matter could not be agitated before the Election Commissioner under Section 20. He accordingly held that the election petition was not maintainable and dismissed it on this preliminary point.

(2.) In the course of his order, the learned Judge says that the election petition in question and another election petition were ported to hear the respective Counsel in view of the decision reported in D. Siddaiah v. S. Rudrappa, AIR 1954 Mys 49 (A), where it has been held that the policy of the Legislature and the rule-making authority in framing the Act and the rules thereunder as well as the entire scheme of election is clearly opposed to allowing questions being raised before the Election Commissioner with regard to the contents of an electoral roll and that, therefore, the Election Commissioner cannot go into the question of the age of the voters. He also refers to the decision reported in M. S. Avadhani v. State of Mysore, AIR 1954 Mys 18 (B), in which it is observed with reference to the proviso to Section 14 (1) of the Town Municipalities Act and Sub-section (3) of that section that the proviso means that if a person is not qualified for being chosen as a Councillor his seat shall be deemed to be vacant, but that, however, under the proviso his election is not invalid if the disqualification is such as could have been brought to the notice of the Returning Officer at the time of or before the scrutiny of the nomination papers and has not been so brought to his notice. He also refers to the observation in this decision, viz.,

(3.) It appears to us that the learned Judge's view that there was any conflict between the views in the cases reported in AIR 1954 Mys 49 (A) and AIR 1954 Mys 18 (B), is without foundation. The question for decision in AIR 1954 Mys 49 (A), as is clear from the reference made to the decision by the learned Judge himself was whether the finality of the electoral roll including the question of the qualifying age of a person to have his name entered in the electoral roll could be agitated before the Election Commissioner. The question for decision in AIH 1954 Mys 18 (B), was whether Government had jurisdiction to go into the question of the disqualification of a Municipal Councillor when that disqualification existed at the time of election. While one dealt with the question of the capacity for voting the other dealt with the capacity for membership of a Council. These are governed by different provisions of law except to the extent that every candidate has also to be on the voter's list. In the Supreme Court case referred to by the learned Judge the question of a voter's qualification or disqualification did not come up for consideration at all. It is, therefore, difficult to see either the conflict between the Mysore decisions or the concurrence of views as between the AIR 1954 Mys 49 (A) and the Supreme Court case or how the - learned Judge finds that the observations in the Supreme Court case express the same view as that found in AIR 1.954 Mys 49 (A).