KRISHNAMURTHI AIYAR Vs. GOVINDASWAMI PILLAI

JUDGEMENT

(1.) THIS application under Art. 227 of the Constitution has been preferred questioning the legality and regularity of an order passed by the Election Court under the Madras Panchayats Act 1958, pending an Election petition under the Act at the instance of the first respondent herein. By the impugned proceeding, the election Court has directed the petitioner herein to appear before the Medical officer, Government Leprosy Subsidiary centre, Vridhachalam, and submit himself for medical examination, for the purpose of ascertaining the fact whether he was suffering from leprosy. The petitioner herein is the first respondent in the Election petition above referred to and the successful candidate as against the first respondent herein in the election held for one seat for the Srinushnam Town panchayat, South Arcot Dt. The election of the petitioner is challenged inter alia on the ground that he was suffering from leprosy and therefore, disqualified under section 25 (2) (a) of the Panchayat Act. Under the rules Section 178 (2) of the Act, the District Munsif having territorial jurisdiction over the place in which the office of the Panchayat is situated is the Election Court and Rule 3 specifically provides that the District Munsif exercising jurisdiction under the rules shall be deemed to exercise such jurisdiction as persona designata and not in his capacity as a munsif.

(2.) IN this case the first respondent herein, (hereinafter referred to as the respondent), the other party being only a pro forma party, filed before the Election court an application purporting to be under Rule 6 (2) (a) and (f) praying that the respondent may be directed to appear in Court in person on a given date for a personal inspection and discovery both by the Court and by the Medical Officer referred to in his affidavit. In his affidavit, the respondent stated that the order is necessary for examination of the blood by a medical officer and after necessary discovery and inspection the medical officer may be examined on his result about the inspection. The present petitioner, the successful candidate and the first respondent in the Election petition, denied that he was suffering from leprosy, averred that it is a false and vexatious plea, and contended inter alia that there was no provision of law or procedure under which he could be compelled to submit himself for medical examination and test. He, however, produced a medical certificate to show that he was not disqualified. The Election Court (District Munsif, vridhachalam) took the view that "suffering from leprosy" was a statutory disability and by necessary implication the Court was clothed with such power to have it determined and it would be possible to so determine only by exercising the court's jurisdiction in ordering the medical examination of the petitioner herein and test by the Government medical officer. Certain observations in George swamidoss Joseph v. Sundari Edward (1954) 67 Mad LW 676, a case under the indian Divorce Act, are relied upon for arriving at the conclusion that the Court could compel the petitioner to submit himself for medical examination and test.

(3.) MR. K. Gopalachari learned counsel appearing for the petitioner, contends that the election Court, which in this case had not even all the powers of an ordinary court, the District Munsif functioning as Election authority only as persona designata, had absolutely no jurisdiction whatsoever to order compulsory medical examination of the respondent in an election petition. Learned counsel contends that such power had not been given to the election Court either by statute or by rules and that no other law warrants such interference with the liberty of the person and the sanctity of the human body. Neither the Evidence Act nor the Civil procedure Code provide for such compulsory medical examination and against a party respondent at the instance of a petitioner. I shall immediately refer to three decisions bearing on the matter in consideration, which directly negative the existence of such power even in regularly constituted Courts.