THANGAVELU MOOPANAR Vs. KANDASWAMI MOOPANAR AND ANR.

JUDGEMENT

(1.) This writ appeal has been preferred from the order of our learned brother Srinivasan J., discharging the rule nisi in an application for certiorari to quash an order of the Judicial Authority under Sec. 28 of the Madras Panchayats Act XXXV of 1958, hereinafter referred to as the Act. The Appellant and the first Respondent before us had both been elected as members of Kadambur panchayat, Udayarpalayam taluk, in the panchayat elections about the beginning of January 1935 and both were contestants in the election of the President for the panchayat. In that election held on 17th April 1965, the Appellant got elected as the President. On 27th May 1965, later the first Respondent as member of the panchayat, filed the application out of which these proceedings arise, before the District Munsif Ariyalur the Judicial Authority under Sec. 23 of the Act, for a decision contending that the Appellant was not qualified to be a member. It was the case of the first Respondent that the Appellant as he had subsisting contracts with the panchayat union. Thirumanur Block from before he filed his nomination paper, at the time of his election, and even subsequently and so was not qualified to be a member. In the petition the first Respondent had referred to Sec. 26(d) of the Act, but the Judicial Authority pointed out and dealt with the matter as one falling under Sec. 25 (c)of the Act, Sec. 26 (d) applying to interests in contract acquired subsequent to the election. On the evidence, the Authority found that the Appellant had subsisting interest in contract works which disqualified him to be a member of the panchayat. Contracts were found to have been subsisting from prior to the nomination. In respect of one contract, the final bill was made on 24th March, 1965. In respect of another contract, a part -payment bill was passed on 29th April, 1965. It is seen from the records that the final bill had not been passed in respect of this contract even at the time of the enquiry on the application. As noticed by our learned brother Srinivasan J., the Appellant had not only interest in a disqualifying contract on the date of the election but that contract continued to subsist even after the date of his election. Though Sec. 23 in terms does not refer to the President of the panchayat once the qualification of a person to continue as a member of the panchayat is challenged and it is declared that the member is not qualified to be a member, his election as President of the panchayat would automatically get invalidated.

(2.) It was urged for the unseated member before our learned brother, that if the disqualification existed even on the date of the election, only an election petition should be filed and that based on the same qualification which might continue after the date of the election resort could not be had to Sec. 28 of the Act. Another contention was raised that the member whose qualification was challenged, must continue to have a subsisting interest in the contract even on the date on which the judicial authority passed orders. Both the contentions were rejected by the learned Judge and the second contention has not been pressed before us in appeal. In fact, the grounds of appeal raised an entirely different point that the learned Judge in this Court failed to see that though the petition was filed under Sec. 26(d), the actual order was passed under Sec. 25 (c). It does not appear that this aspect was passed at all before the learned Judge. At any rate there was no argument before us on this point. Before us again, the contention was that the pre -election disqualification in question cannot be the subject of an enquiry, under Sec. 28 of the Act. It was submitted that the only remedy in respect of the pre -election disqualification was an election petition filed within the time stipulated. As we understand the argument, Sec. 28 should be taken to refer only to post election disqualification which attach to a member after he had been duly elected and not to disqualifications which existed even when he was a candidate for election and could form the basis of an election petition. Oar learned brother Srinivasan J., holding that Sec. 23 contemplates both kinds of disqualifications, that is, disqualification under Sec. 25 which relate to disqualification of candidates, and disqualification under Sec. 28 which deals with disqualification of member observes that when a person who is suffering any disqualification by reason of an interest in a subsisting contract stands for election and gets elected, he should be deemed to have acquired an interest in a subsisting contract in his capacity as a member. This is one way of looking at it, but, in our view, it is unnecessary to rely on any fiction, even a limited one, for, the language of Sec. 28 is plain as it stands. Ambiguity is sought to be imported into it by reading it along with the corresponding provisions in the District Municipalities Act particularly Sec. 51 and certain observations thereon in the Full Bench decision of this Court in Selvarangaraju v/s. Doraiswami Mudaliar, I.L.R. (1929) Mad. 732. The question in fact is not res integra but has been the subject of recent decisions in Panchayat Board of Sembakkam v/s. Gengadaran, I.L.R.(1962) Mad. 1016 and Balusamy v/s. Election Court, Udumulpet, I.L.R. (1967) 2 Mad. 398.

(3.) Before referring to the decisions, it may be convenient to take up the relevant provisions of the Act. They are found in a group of Ss. under the subheading, qualification, disqualification etc., of members beginning with Sec. 22. Sec. 22 which deals with the qualification of candidates provides that no parson shall be qualified for election as a number of a panchayat unless his name appears on the electoral roll of the panchayat. This is a positive qualification. Then the Act specifies matters which disqualify a person thus qualified from standing for election. Of this we may leave out Sec. 23, for Sec. 24 which deals with disqualification of persons convicted of election offences. Persons convicted of the offences referred to in the Sec. are disqualified from voting or from being elected in any election to which the Act applied or from holding the office of member of a panchayat or of a panchayat union council for a period of five years from the date of his conviction.: Sec. 25 which specifies disqualification of candidates provides by Sub -section (1), that a person who has been sentenced by a criminal Court to imprisonment for any offence involving moral delinquency such sentences not having been reversed shall be disqualified for election as a member while undergoing the sentence and for five years from the date of the expiration thereof. Sub -Section 2 deals with a number of other disqualifications. Under this Sub -section a person shall be disqualified for election as a member if at the date of nomination or election he is affected by any of the disqualifications specified in the sub -section. In this case we are concerned with the disqualification specified in Sec. 25(2)(c). Sec. 25 (2)(c) provides that a person would be disqualified if he is interested in a subsisting contract made with, or any work being done for, any panchayat or any panchayat union council except as a shareholder (other than a director) in a company. Sec. 26 deals with disqualifications of members, that is, disqualification that affects a person after he has become a member. It provides that subject to the provisions of Sec. 28, a member shall cease to hold office as such if the member suffers any of the disqualifications specified therein. Corresponding to Sec. 25(2)(c), Sec. 26 provides by Clause (d) that a member shall cease to hold office as such if he acquires any interest in any subsisting contract made with, or work being done for any panchayat or any panchayat union council except as a shareholder other than a director in a company or except as permitted by rules made under the Act. Taking the disqualification now under considerations found in Sec. 25 (2)(c) and Sec. 28 (d), a person qualified to stand as a candidate, his name being on the electoral rolls of the panchayat, may on the date of the nomination or election if he be interested in a subsisting contract or work being done for the panchayat or panchayat union council, get himself disqualified for election as a member. Or, a person while suffering from no disqualification on the date of the nomination or election may subsequently get interested in a contract made with or any work being done for the panchayat or panchayat union council and become disqualified after being duly elected as a member. Sec. 25 postulates the pre -election qualification for valid election as a member, and Sec. 26 deals with matters that would disqualify a person who was qualified at the time of the nomination and election and had validly become a member, that is with post -election or supervening disqualifications. In the former case, that is in cases falling under Sec. 25, there can be no valid election, may be the disqualifications not being noticed, the election had gone through unchallenged. Then we come to the crucial Sec. 28 which runs thus: