C B C WARRIER Vs. G P MANGALATHUMADOM

JUDGEMENT

(1.) In the General Election conducted to the Kerala State Legislative Assembly the petitioner and the respondent as duly nominated candidates contested from the Haripad assembly constituency. The petitioner was the candidate put up by the Communist Party of India (Marxist) whereas the respondent belongs to Praja Socialist Party (P.S.P.) which joined the Government at the relevant time. The polling took place on 19 3 1977 and the counting took place on 20 3 1977. The respondent was declared as duly elected by the Returning Officer. The election of the respondent is challenged by the petitioner as invalid for the reasons set out in Para.5 of the petition. The respondent was the President of the Travancore Devaswom Board constituted under Act 15 of 1950 as amended by Act 20 of 1974 at the time when he tiled the nomination paper and he continued to occupy that position till the declaration of the election results The Travancore Devaswom Board is a statutory corporation constituted under Ss 3 and 4 of Act 15 of 1950 receiving contribution from the State Government. The recurring income of the Board is paid out of the consolidated fund of the Kerala Government By the relevant provisions of the Act, Devaswom fund includes a sum given out of the consolidated fund. The President of the Board had absolute control and supervision of the administration of the Board, and consequently, the respondent falls within the ambit of the term 'manager' contained in S.10 of the Central Act 43 of 1951. As the President of the Devaswom Board the respondent was receiving a remuneration of Rs 450/- per mensem The respondent was thus disqualified from contesting the election by virtue of Art.191 of the Constitution. There were irregularities in the matter of counting of votes The process of counting adopted by the Returning Officer deviated from the methods adopted during the previous elections. A recounting of the votes is therefore necessary The two prayers contained in the petition are: (a) for a declaration that the election of the respondent is void since he was disqualified to contest, and (b) for a recount of the votes polled to find that the respondent has not polled the majority of valid votes in the election

(2.) In his written statement the respondent has raised the following contentions. The petitioner relies on S.10 of the Representation of the People Act, 1951 as well as Art.191 of the Constitution. It is submitted that the allegation that the respondent was disqualified under S.10 of the Act falls within clause (I) of sub clause (e) of Art.191 of the Constitution. In view of Art.192, the question of disqualification on the ground of corrupt practice can be decided only by the President and an enquiry into the allegations made in the petition, by this court, is barred by Art.192 of the Constitution. Again, since the petitioner did not personally present the petition, S.81 of the Act is violated. There is no proper presentation of the petition, and so the petition is liable to be dismissed. The averments in Para.1 to 4 of the petitions are admitted. The respondent was not disqualified to be chosen as a candidate for the election. The respondent was the President of the Travancore Devaswom Board at the time of filing the nomination paper and continued to be the President till the date of the declaration of the election results. No objection was raised at the time of scrutiny of nomination paper. Under S.4 of Act 15 of 1950 the Board is a body corporate. The averment in paragraph D that the capital of the statutory corporation under S.3 and 4 of Act 15 of 1950 are fully contributed by the State Government is denied. The Board is not a statutory corporation. The Devaswom (Amendment) Proclamation of 1123 made it an obligation on the State of Travancore to contribute from its general revenue a sum of Rs. 50 lakhs to the devaswom fund. By the Constitution (Seventh Amendment) Act, 1956, Art.238 was repealed and Art.290A was inserted. Art.290A provided that a sum of Rs 46,50,000/-shall be a charge and paid out of the consolidated fund of the State of Kerala every year to the Travancore Devaswom Fund. It is submitted that the amount so charged is not a contribution from the State, but it is in discharge of a liability 0:1 the part of the Government. The liability has been incurred consequent on the assumption of devaswoms in Travancore in the year 987 M. E. In implementation of a sannad dated 3rd Kanni 987 M. E. issued by the then Resident Diwan of Travancore, 348 major devaswoms and 1123 minor devaswoms were brought under the management of the Government. The income from the landed properties of those devaswoms amounted to 15,80,491 paras of paddy and Rs. 53,092/- in cash. This was steadily on the increase and the average of 5 years from 987 was 16,06,281 paras of paddy and Rs. 60,608/-in cash besides the other fluctuating income in the shape of offerings from devotees and income from Cherikkal lands and the increase in revenue. The State was contributing from the general revenue an annual sum of Rs. 2,75 lakhs by way of grant towards the maintenance of the temples. On assumption of management of these devaswoms the income from these devaswoms were added on to the State revenue and brought under Revenue Administration of the State. Large amounts were due to these devaswoms from tenants at the time of assumption of manag-ment By a Proclamation dated 3rd Meenam 987 all the arrears accrued upto 983 M. E were given remission of and arrears were collected only of those accrued from the year 984 Large portion of the immovable properties of the aforesaid devaswoms had been treated in course of time as Pandaravaka lans and inconsequent became incapable of identification and separation. During the survey and settlement many of the temple properties were entered in the accounts then prepared as Sirkar properties and the tenure as Pandaravaka. The determinate income from the devaswom lands amounted to the proportion of 40% of the land revenue of the State. To this extent the devaswoms were entitled to a guarantee from the government Taking into account these and various other circumstances, in 987 M E , the government accepted the position that they a.e bound to meet from the general revenues the entire cost of the Devaswoms and their administration. Thereupon a proclamation dated 30th Meenam 1097 was promulgated organising a Devaswom Department for the better and more efficient management and more effective control of the devaswoms and directing to meet the expenses from the general revenues of the State. The provision to pay as a charge on the consolidated fund of Kerala a sum of Rs. 46.5 lakhs to the Devaswom Fund represents a portion of the annual revenue of the lands which once belonged to the devaswoms but merged in the State. This is not a governmental contribution; but a payment towards a liability. The assumption of management was in exercise of the Melkoima right exercised by the former Ruler of Travancore. The assumption of management of Devaswom is traceable only to the power of superintendence. The position of the government was only that of a trustee. Melkoima rights of superintendence and the administration of the Hindu religions institutions exercised by the Maharaja vested in the Board constituted for the purpose at the time when the Ruler of the State surrendered his sovereignty by the covenant. After the covenant the administration of the devaswoms was not a governmental function. The Board is an autonomous boas corporate. The amount which it receives and which the government pays as enjoined in Art.290 A of the Constitution is really part of the amount belonging to the Devaswoms. The respondent was the President of the Board. The administration of incorporated and unincorporated devaswoms and all Hindu Religious Endowments and all their properties and funds are vested in the Board. The Hindus among the council of ministers nominated one of the members of the Board as its President. The President has no powers apart from that of the Board except to the extent stated in S.13 of Act 15 of 1950. The respondent was not a 'manager' within the meaning of S.10 of Central Act 43 of 1951. The Devaswom Board is not a corporation having a share capital. As President of the Devaswom Board the respondent was receiving an honorarium of Rs. 450/- per mensem. He was not receiving any remuneration. The respondent was not holding any office of profit under the Government of the State and he was not disqualified for being chosen as a member. Under Art.192 of the Constitution the question has to be referred to the President for his decision. The court has no jurisdiction to enquire into the question as the authority to make such enquiry is the Election Commission under clause (2) of Art.192. The provisions of the Representation of the People Act 1951 to that extent should be deemed to have been repealed by the Constitution (Forty-second Amendment) At. There was no irregularity in the counting of votes and there was no malpractice. The counting of votes was done in accordance with law. The allegation regarding failure of light and consequent inconvenience is denied. The petitioner is not entitled to any of the reliefs prayed tor.

(3.) After discussing with both sides the following issues were raised: