KELAPPAN NAMBIAR Vs. NARAYANAN NAMBIAR

JUDGEMENT

(1.) This petition is directed against an order of the District Munsiff of Taliparamba in his capacity as Election Commissioner under the Madras Village Panchayats Act, 1950 (Madras Act X of 1950). At the election held on 12-10-1955 for the office of the President for the Panchayat Board in the Pariyaram Amsom, the respondent herein was duly declared elected, but the validity of his election was challenged by the defeated candidate before the learned Election Commissioner in O. P. No. 89 of 1955. Though more an two candidates were nominated to stand for election, the ultimate contest was between the respondent and the petitioner in the said Original Petition the other nominees having withdrawn their candidature. The ground on which the election was challenged was that the returned candidate (the respondent) was a disqualified person within the meaning of S.16(2)(b) of the Madras Village Panchayats Act, X of 1950 inasmuch as having got himself adjudicated as insolvent, he allowed his application for discharge to be dismissed for non prosecution and the adjudication annulled. According to the defeated candidate the respondent was therefore an undischarged insolvent on the material dates, namely, the date of the nomination and the date of the election.

(2.) On the ground of the said disqualification the validity of the returned candidates nomination itself was challenged by the rival candidate before the Election Officer, but the objection was repelled and as the result of the voting that followed the respondent was declared elected. In the election petition filed by the defeated candidate he not only sought to have the returned candidates election set aside, but also claimed the office of the President for himself on the ground that as the returned candidate was a disqualified person, his nomination ought to have been rejected by the Election Officer and as the only duly nominated candidate who had not withdrawn from contest, he (the petitioner) ought to have been declared elected at that stage itself without a poll. The learned Election Commissioner found that no disqualification as alleged remained attached to the returned candidate on the date of the nomination or the election and that the petition was therefore unsustainable. The order dismissing the petition (O. P. No. 89 of 1955) was made by the Election Commissioner on 27-2-1956 and soon afterwards on 26-4-1956 this revision was filed by the petitioner therein before the Madras High Court. That Court admitted the revision on 5-5-1956, but the revision petitioner died on 26-5-1956. The Court being appraised of that fact the revision petition was adjourned for three weeks for steps. This was on 10-8-1956. Then on 16-8-1956 one of the candidates for election who had withdrawn his candidature filed a petition (C.M.P. No. 7239 of 1956) seeking to get himself impleaded in place of the deceased petitioner. The Madras High Court ordered notice on that application on 14-9-1956 and thereafter, as a result of the States Reorganisation the case was transferred to the file of this Court.

(3.) In this Court C. M. P. No. 7239 of 1956 (M) came up for hearing before Varadaraja Iyengar, J. and the respondent opposed the petition on the ground that the right to question the election did not survive the death of the original petitioner. Without prejudice to this contention the learned Judge allowed the petitioner to be impleaded. As the main petition, that is, C.R.P. No. 888 of 1956 (M). though filed as a revision invoked not only the High Courts powers under S.115, Civil Procedure Code, but also those under Art.227 of the Constitution, the two petitions since name up for hearing before this Division Bench. Before us the respondents learned counsel, Mr. V. P. Gopalan Nambiar, first took up the preliminary objection that the petitioner in C. M. P. No. 7239 of 1956 had no right or locus standi to be impleaded. As Varadaraja Iyengar, J. left that question open we have to deal with it, as also with the merits of the main petition in case we do not uphold the objection. The preliminary objection has of course to be dealt with first.