BALASUNDARA GOUNDER Vs. THE JUDICIAL AUTHORITY AND ANR.

JUDGEMENT

(1.) THIS writ petition raises a question of some interest with regard to the scope of the powers of the prescribed judicial authority under Section 28 of the Madras Panchayats Act, 1958. Under Section 26 of the Act, in so far as it is relevant for purposes of this case, 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 this Act. The second respondent herein filed a petition under Section 28 of the Act to the prescribed judicial authority, that is, the District Munsif, Tindivanam, alleging that the petitioner had become disqualified to be a member of the Panchayat Board under the provisions of Section 26 above referred to. That petition was adjourned for a number of days and was finally dismissed for default. Subsequently it appears that the second respondent filed an application for restoration of the application which was dismissed for default and that was restored to file. The petitioner alleges that this was done without notice to him. That aspect of the matter I shall deal with later.

(2.) BUT his main point is that the prescribed judicial authority under Section 28 of the Act has no power to restore a petition dismissed by it for default. Notification 7 which finds a place at page 264 of S. V. Jayaraman on the Madras Panchayats Act, 1958 reads:

(3.) THE petitioner refers to the decision in Tiruppulisami v. Manickam, (1954) 2 M.L.J. 680, where Rajamannar, C.J., in dealing with the question which arose under Section 51 of the District Municipalities Act, in which the language used is exactly the same as in Section 28 of the Madras Panchayats Act, held that the District Judge in dealing with a question under Section 51 would be a Tribunal within the meaning of the term under Article 227 of the Constitution. Incidentally the learned Judge observed that the District Judge acting under Section 51 of the Act might be a persona designates, that is to say, he would differ from the District Court, over which he was presiding, and this observation is relied upon by the petitioner to urge that the prescribed Judicial authority in this case acting as persona designata. The question whether the District Judge deciding a question under Section 51 was a persona designata or was deciding it as a Judge, presiding over the District Court was not finally decided by that learned Judge, because it was not necessary for purposes of that case. The learned Judge was only referring to the argument of the Advocate before him and in relation to such an argument, went on to say that it cannot be said that the District Judge was not a tribunal within the meaning of the term in Article 227 of the Constitution. Even as an observation it is not a final expression of opinion. Therefore, this decision does not help to decide the question at issue before me. The petitioner also drew my attention to the decision in Koti Reddi v. Venkayya, I.L.R. (1952) Mad. 104 :, (1951) 1 M.L.J. 347, where a Bench of this Court in dealing with the question whether an Election Commissioner hearing an election petition was doing so as a persona designata, held that in the absence of an express provision empowering him to set aside his own orders either by way of a review or by way of application under Order 9, Civil Procedure Code, the Election Commissioner had no jurisdiction to set aside an earlier order of his. But in that case unlike as in this case the Election Commissioner' was not an officer presiding over a Court. In National Telephone Co. Ltd. v. Postmaster General, L.R. (1913) A.C. 436, Viscount Haldane, L.C. pointed out.