N KOTAYYA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Order of the Court Was delivered by the Hon'ble Mr. Justice Viswanatha Sastiy. This is a petition under Art. 226 of the Constitution for the issue of a writ of Certiorari quashing an order, G. O. Ms. No. 719 (Local Administration) dated 29-7-1954, of the first respondent, the State of Andhra. The second respondent is the Regional Inspector of Municipalities and Local Boards, Northern Range, Vijayawada. Purporting to act in exercise of the powers delegated to him by the Inspector of Municipal Councils and Local Boards under Sec. 127 (2) of the Madras Village Panchayats Act of 1950 (hereinafter referred to as 'the Act'), the second respondent issued a notification under Sec. 3 (2) excluding Swarnapalem, a hamlet of Swarna from the Swarna Panchayat and including it in the neighbouring Panchayat of Kodavali varipalem. The remaining extent of Swarna, without the hamlet, was constituted as the Swarna Panchayat. On the basis of the extended jurisdiction fixed by the notification of the second respondent, elections to the Panchayat of Kodavalivaripalem were held on 16-2-1954. On the same day the petitioner was also elected President of the Panchayat of Kodavalivaripalem. On 29-7-1954 the Government of Andhra acting under Sec. 128 of the Act made the order now sought to be quashed. In and by the order, the Government declared the notification of the second respondent excluding Swarnapalem, hamlet of Swarna, from the Swarna Panchayat and including it in the neighbouring Kodavalivaripalem Panchayat to be illegal and also set aside the elections held for the reconstituted Kodavalivaripalem Panchayat as being null and void. It is this order of the Government that is challenged by the petitioner as being illegal and without jurisdiction. It was argued that elections to the Panchayat having been held and the President of the Panchayat having also been elected, the only manner in which these elections could be set aside was by a petition presented under the Rules framed under the Act for the decision of election disputes. Under Rule 1 (1) no election held under the Act whether of a member or a president of a Panchayat "shall be called in question except by an election petition presented in acccordance with these rules to an Election Commissioner .by any candidate or elector" against the returned candidate. The Election Commissioner in most cases would be a judicial Officer and the proceedings for setting aside an election are directed to be inquired into as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code to the trial .of suits. Under Rule 11 (c) the election of the returned candidate shall be void, if, in the opinion of the Election Commissioner, the result of the election has been materially affected " by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the Rules made thereunder." It was urged that if the elections had been held without compliance with the provisions of the Act or the Rules, whatever be the nature of the provisions disobeyed or disregarded, still the only remedy available for setting aside the election of the returned candidates is by a petition to the Election Commissioner under Rule 1 (1) of the Rules. It was urged that the Government could not under the guise of exercising its revisional power under Sec. 128 of the Act, set aside elections and that it had no jurisdiction to upset the verdict of the electorate in this indirect manner. It is true that the Election Commissioner is a special tribunal created under the Act for hearing objections to the election of a member or president of a panchayat and that he is empowered to declare the election of the returned candidate void if the result of the election has been materially affected by any non-compliance with the provisions of the Act or the Rules made thereunder. If the election of a returned candidate is sought to be set aside by an elector of a rival candidate, it can only be done by a petition under the Rules. It is also true that Judicial knowledge, fairness and impartiality in dealing with objections to an election were considered by the framers of the Rules as so essential to the freedom and purity of elections that the District Munsif having local jurisdiction was designated as the Election Commissioner to try these objections and his decision was also made final.

(2.) The present case is not a dispute between an elector or a candidate for election and the returned candidate, about the validity or regularity of the election. The very foundation of an election to a panchayat is the constitution of one or more villages as a Panchayat by the Inspector under Sec. 3 of the Act. The village has to be divided into wards and the number of members to be returned by each ward and the total number of members of a Panchayat have to be determined and notified by the Inspector under Sec. 6 and 9 of the Act. Under Sec. 10 (2) the election authority has to fix the date of the election. These fundamental requisites must be complied with, before there could be any election at all. Orders made by the Inspector or any person authorised by him with regard to these preliminary steps which have to precede an election are open to revision by the Government under Sec. 128 of the Act. Under Rule 1 (1) of the Rules, objections to elections "held under the Act" have to be determined by the Tribunal designated by the Rules and in the manner prescribed thereby. The rules for the decision of election disputes contemplate an ex facie regular election where the preliminary steps preceding the election and required by law have been taken by the appropriate authorities. If an election is purported to be held for an area not legally constituted as a Panchayat the election itself would be void. If the essential steps required by law to be taken as preparatory to an election have not been taken, or if such steps have been taken in a manner opposed to law, then, in that case, the election would be void ab initiv and wholly without jurisdiction and no question as to the Result of the Election being materially affected would arise as envisaged by Rule 1 (1). Rule 11 contemplates the setting aside of the election of the returned candidate or the President of the Panchayat on one or more of the grounds set out therein. Among these grounds are the commission of an election offence by the returned candidate, the violation of any law or rule relating to the secrecy of elections, bribery of electors or candidates, provision of free conveyance for electors, improper reception or rejection of a nomination paper or vote, etc. The commission of election offences under Sec. 58 of the Act or Chapter IX-A of the Penal Code by the candidate or his election agent or some other person with his connivance, renders the election liable to be set aside on that ground without more. In other cases the election of the returned candidate must be shown to have been procured or induced or the result of the election to have been materially affected, by the corrupt practices enumerated above. It is only if the objections raised to the election of the retumed candidate or the president fall within one or other of the three clauses of Rule 11 that the Election Commissioner is empowered to declare the election void. Breaches or transgressions of the law regulating the formation of constituencies for which elections are to be held, committed before the beginning of the elections, do not fall within the purview of Rule 11. Ordinarily the first formal step in every election is the notification fixing the date therefor. The commissioner for the decision of election disputes does not come into the picture till the date for election is notified. The order of the Government cancelling the notification of the second respondent excluding Swarnapalem, a hamlet of Swarna from Swarna Panchayat and including it in the neighbouring Kodavalivaripalem Panchayat was not repugnant to Rules 1 and 11 of the Rules for the decision of election disputes. The order, though passed by the Government after elections to the reconstituted panchayat were held, was one which related to a preliminary step preceding the election taken by the second respondent establishing a new constituency and forming a panchayat with an extended area, by a notification purporting to be issued under Sec. 3 (2) of the Act. Sec. 128 of the Act gives the Government revisional power over the orders and proceedings of the second respondent and in the exercise of that power the Government cancelled the notification of the second respondent as being illegal. Whether the view of the Government is legally correct will be presently considered. The declaration by the Government of the invalidity of the elections purporting to have been held for the reconstituted panchayat was Consequential upon and merely followed as a necessary and inescapable result of the cancellation of the notification of the second respondent reconstituting the Kodavalivaripalem panchayat.

(3.) Therefore the only question that remains for our consideration is whether the order of the Government cancelling the notification of the second Respondent purporting to take away the hamlet of Swarnapalem from Swarna Panchayat and incorporating it with the neighbouring Kodavalivaripalem was validly made. It is necessary to refer to the relevant provisions of the Act and the Rules. Sec. 2 (22) of the Act defines "revenue village" as meaning