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Case Number

W.P No. 557 of 1954

Attorney(S)

For the Appellant: D.V. Reddi Pantulu, Advocate.
For the Respondent: M. Seshachalapathi, P. Babula Reddi, Advocates.

Judges

K. Subba Rao, C.J
Viswanatha Sastry, J.

Acts

S. 127 (2) of the Madras Village Panchayats Act of 1950 (hereinafter referred to as the Act),
Rule meant the Madras Local Boards Act, 1920.
Madras Local Boards Act, 1920.
Act." Section 2 (25)
1(1). Rule 11

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Smart Summary

Judgment Summary — Viswanatha Sastri, J.

Factual and Procedural Background

This is a writ petition under Article 226 of the Constitution challenging Government Order G.O. Mis. No. 719 (Local Administration) dated 29 July 1954 (first respondent, State of Andhra). The second respondent was the Regional Inspector of Municipalities and Local Boards, Northern Range, Vijayawada.

Acting purportedly under delegated powers, the second respondent issued a notification under S. 3(2) (referenced earlier as effected under S.127(2) delegation) excluding the hamlet of Swarnapalem from the Swarna Panchayat and including it in the neighbouring Kodavalivaripalem Panchayat; the remainder of Swarna was constituted as Swarna Panchayat.

On the basis of that notification, elections for Kodavalivaripalem Panchayat were held on 16 February 1954; the petitioner was elected President that day. On 29 July 1954 the Government, acting under S. 128 of the Madras Village Panchayats Act, declared the second respondent's notification illegal and set aside the elections held for the reconstituted Kodavalivaripalem Panchayat as null and void. The petitioner challenged that Government order as illegal and without jurisdiction.

Legal Issues Presented

Whether the Government's order cancelling the second respondent's notification (which excluded Swarnapalem from Swarna Panchayat and included it in Kodavalivaripalem) was validly made under the Act.
Whether the Government, in exercise of revisional power under S.128, could set aside elections held after the second respondent's notification, or whether elections could be set aside only by an election petition to the Election Commissioner under the Rules (R.1(1) and R.11).

Arguments of the Parties

Petitioner's Arguments

The petitioner argued that once elections to the panchayat had been held and the President elected, the only manner to set aside those elections was by an election petition presented under the Rules framed under the Act to the Election Commissioner (R.1(1)).
R.1(1) provides that no election shall be called in question except by an election petition presented in accordance with those Rules to an Election Commissioner by any candidate or elector against the returned candidate.
R.11(c) permits the Election Commissioner to declare the election of a returned candidate void if, in his opinion, the result has been materially affected by irregularity, improper reception/refusal of a nomination paper or vote, or any non-compliance with the provisions of the Act or the Rules.
The petitioner contended that even if elections were held without compliance with provisions of the Act or Rules, the remedy to set aside the election remains a petition to the Election Commissioner; the Government could not, under the guise of S.128 revisional power, set aside elections and thereby upset the electorate's verdict indirectly.

The opinion does not set out detailed affirmative arguments presented by the respondents in the record; the court's reasoning reflects statutory interpretation and factual findings.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded along the following lines, relying on the statutory provisions and Rules quoted in the opinion:

The court acknowledged that the Election Commissioner (a tribunal designated by the Rules) has jurisdiction to hear petitions by electors or rival candidates to set aside the election of a returned candidate where the result has been materially affected by specified irregularities (R.1(1) and R.11).
However, the court drew a clear distinction between (a) disputes between electors/candidates and returned candidates about the validity or regularity of an election and (b) challenges to the very constitution of the panchayat or the formation of the electoral constituency — i.e., the preliminary administrative steps that must precede any valid election.
The court observed that the "very foundation" of an election is the constitution of one or more villages as a panchayat by the Inspector under S.3 of the Act, and related preparatory steps (division into wards, number of members, fixing dates under Ss.6, 9 and 10(2)). These preliminary acts must be validly performed before an election can lawfully take place.
Orders by the Inspector (or persons authorised by him) with respect to these preliminary constituency-formation steps are expressly subject to Government revision under S.128 of the Act; therefore the Government has revisional power to examine the validity of such preliminary acts.
The Rules that create the Election Commissioner and provide for election petitions (R.1 and R.11) presuppose an ex facie regular election — i.e., that the preliminary administrative steps required by law have been taken. Where an election is purported to be held for an area not legally constituted as a panchayat, the election is void ab initio and does not fall within the scope of R.11's post-election remedies.
Applying these principles to the facts, the court reviewed the relevant statutory definitions and provisions: S.2(22) (definition of "revenue village" including hamlets when notified), S.2(25) (definition of "village"), S.3(1) (declarations of villages by the Inspector based on population thresholds), S.3(2)(a)-(c) (power of Inspector to exclude revenue villages and the mandatory obligation to give affected panchayats a reasonable opportunity to show cause), and the transitional Rule 2 of Sch. III (treating existing villages/panchayats as duly constituted but subject to exclusion and re-declaration where applicable).
Fact-finding: Swarnapalem was a hamlet of Swarna at the commencement of the Act and did not itself constitute a revenue village. Historical notifications under the old Madras Local Boards Act (16 April 1940) showed Swarna (including the hamlet) and Kodavalivaripalem each constituted then as panchayats. The second respondent's later notification (18 December 1953) purporting to exclude Swarnapalem from Swarna and include it in Kodavalivaripalem was the subject of Government cancellation.
The court identified three specific statutory defects in the second respondent's notification that justified Government revision:
- The Inspector (second respondent) should have first notified Swarnapalem as a revenue village under S.2(22) before excluding it under S.3(2)(a); in the absence of such a notification Swarnapalem could not validly be excluded or included elsewhere.
- The Inspector failed to give the Swarna Panchayat a reasonable opportunity to show cause against the proposal, contrary to the mandatory requirement of S.3(2)(c).
- The Inspector did not ascertain whether the population of the hamlet exceeded 500 prior to including it in Kodavalivaripalem; if the population exceeded 500, inclusion would have been inadmissible under S.3(1)(i).
Because these defects concerned the formation of the constituency and the legal competence to reconstitute the panchayat area, the Government's exercise of revisional power under S.128 to cancel the second respondent's notification was within the statutory scheme and properly corrective of jurisdictional error. The setting aside of the elections was consequential to and followed necessarily from cancellation of the reconstitution notification.
Consequently, the court concluded that the Government order cancelling the notification was legal and proper and that the Government was entitled to effect that cancellation under S.128. The petition challenging the Government order was therefore not maintainable.

Holding and Implications

Petition dismissed.

Holding (core ruling): The court upheld the Government's order cancelling the second respondent's notification (which sought to exclude the hamlet of Swarnapalem from Swarna Panchayat and include it in Kodavalivaripalem) and dismissed the petition challenging that order. The court found the second respondent's notification invalid for three statutory defects: failure to notify the hamlet as a revenue village under S.2(22), failure to consult the affected Swarna Panchayat as required by S.3(2)(c), and failure to ascertain whether the hamlet's population exceeded 500 as required by S.3(1)(i).

Implications (direct consequences): As the Government's cancellation was upheld, the elections purportedly held for the reconstituted Kodavalivaripalem Panchayat were rendered void as a necessary consequence of the cancellation. The application was dismissed with costs (advocate's fee Rs. 100). The opinion does not purport to establish or state any new binding legal precedent beyond applying the statutory scheme to the facts of this case.

Disposition

The application is dismissed with costs (Advocate's fee Rs. 100). Petition dismissed.

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Nalluri Kotayya v. State Of Andhra

Judgement

VISWANATHA SASTRI, J. :- This is a petition under Art. 226 of the Constitution for the issue of a writ of certiorari quashing an order G. O. Mis. No. 719 (Local Administration), dated 29th July, 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 S. 127 (2) of the Madras Village Panchayats Act of 1950 (hereinafter referred to as the Act), the second respondent issued a notification under S. 3 (2) excluding Swarnapalem, a hamlet of Swarna from the Swarna Panchayat and including it in the neighbouring Panchayat of Kodavalivarpalem. 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 16th February, 1954. On the same day, the petitioner was also elected President of the Panchayat of Kodavalivaripalem. On 29th July, 1954. the Government of Andhra acting under S. 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 re-constituted 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.

2. It was argued that elections to the panchayat having been held and the President of the Panchayat haying 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 R. 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 accordance 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 R. 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 provision 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 R. 1 (1) of the rules. It was urged that the Government could not under the guise of exercising its revisional power under S. 128 of the Act, set aside elections and that it had no jurisdiction to upset the verdict of the electorate in this indirect manner.

3. 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 or 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.

4. 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 S. 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 Ss. 6 and 9 of the Act. Under S. 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 S. 128 of the Act.

Under R. 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 the 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 initio and wholly without jurisdiction and no question as to the result of the election being materially affected would arise as envisaged by R. 1(1).

Rule 11 contemplates the setting aside of the election of the returned candidate or the President of 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 Rules 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 S. 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 returned candidate or the President fall within one or other of the three clauses of R. 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 election, do not fall within the purview of R. 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, hamlet of Swarna from Swarna Panchayat and including it in the neighbouring Kodavalivaripalem, Panchayat was not repugnant to Rr. 1 and 11 of the Rules for the decision of election disputes.

The order, though passed by the Government after elections to the re-constituted 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 S. 3 (2) of the Act. Section 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 second respondent re-constituting the Kodavalivaripalem Panchayat.

5. 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. Section 2 (22) of the Act defines "revenue village" as meaning "any local area which is recognised as a village in the revenue accounts of Government.......... and includes a hamlet in existence at the commencement of this Act and notified by the Inspector to be a revenue village for the purposes of this Act."

Section 2 (25) defines a "village" as meaning any local area which is declared to be a village under this Act." Section 3 of the Act so far as it is now material, runs thus :

"Section 3 (1) : The Inspector shall, as soon as may be after the commencement of this Act, by notification :- (i) declare every revenue village with a population of not less than five hundred to be a village for the purposes of this Act, and specify the name of such village;

(ii) group a revenue village with a population of less than five hundred, with any contiguous revenue village or villages so that the total population of all the revenue villages so grouped is not less than five hundred, declare the revenue villages so grouped to be a village for the purposes of this Act, and specify the name of such village.

(2) (a) The Inspector may, by notification, exclude from a village any revenue village comprised therein, provided that the population of the village, after such exclusion, is not less than five hundred.

(b) In regard to any village so excluded, the Inspector shall take action under sub-s. (1) according as it has a population of not less than five hundred or of less than five hundred, as the case may be.

(c) Before issuing a notification under cl. (a) or under cl. (b) read with sub-s. (1). Inspector shall give the panchayat or panchayats which will be affected by the issue of such notification a reasonable opportunity for showing cause against the proposal and shall consider the explanation and objections, if any, of such panchayats."

Rule 2 of Sch III of the Act which contains transitional provisions runs as follows :

"2. Existing Villages and Panchayats to be deemed to be duly constituted - Every local area which, at the commencement of this Act, is a village under the old Act shall be deemed to have been declared to be a village under this Act and every panchayat shall be deemed to have been constituted under this Act :

Provided that where a village under the old Act comprises any revenue village which has a population of five hundred or more and the population of the village after excluding such revenue village is not less than five hundred, the Inspector shall, as soon as may be after the commencement of this Act, exclude such revenue village from the village and declare it to be a village for the purposes of this Act, in accordance with the provisions of S. 3 thereof unless he considers it Inexpedient to do so on account of the contiguity of the revenue villages comprised in the village."

The "old Act" in the above Rule meant the Madras Local Boards Act, 1920.

6. On 16th April, 1940, Swarna village including the hamlet of Swarnapalem was constituted as a panchayat and Kodavalivaripalem Tillage was also constituted as a panchayat by a notification under the old Madras Local Boards Act, 1920. On 15th July, 1953, the second respondent issued a notification under the Panchayat Act in terms of the notification dated 16th April, 1940. On 18th December, 1953, the second respondent issued a notification superseding the prior notification and including the hamlet of Swarnapalem in Kodavalivaripalem village and excluding it from Swarna Panchayat and it is this notification that was set aside by the Government. In our opinion the order of the Government was legal and proper. Swarnapalem was, at the commencement of the Act, a hamlet of Swarna village and did not by itself constitute a revenue village.

The second respondent should first have notified the hamlet of Swarnapalem as a revenue village under S. 2 (22) of the Act before excluding it from the Swarna Panchayat under S. 3 (2) (a) of the Act. In the absence of a notification by the second respondent declaring the hamlet of Swarnapalem as a revenue village for the purpose of the Act, he could not validly exclude it from the Swarna Panchayat or include it in Kodavalivaripalem. The second respondent having omitted to notify the hamlet Swarnapalem as a revenue village, the omission rendered the notification invalid. Secondly, he omitted to consult the Swarna Panchayat before excluding the hamlet of Swarnapalem from its area. This consultation was obligatory upon him under S 3 (2) (a) of the Act.

Thirdly before including the hamlet of Swarnapalem in the Kodavalivaripalem Panchayat the second respondent did not ascertain whether or not the population of the hamlet exceeded 500, for such inclusion would be inadmissible under S. 3 (1) (i) of the Act if the population exceeded 500. For these reasons, the Government set aside the notification of the second respondent excluding the hamlet of Swarnapalem from the Swarna Panchayat and including it in the Panchayat of Kodavalivaripalem. The order of the Government was in consonance with the provisions of the Act and the Rules.

7. The application is dismissed with costs : Advocates fee Rs. 100.

Petition dismissed.

Nalluri Kotayya v. State Of Andhra

Judgment Summary — Viswanatha Sastri, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Nalluri Kotayya v. State Of Andhra

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