NARAYAN DEVARU BHAT v. CHANDRAKANTA SAIRU KOCHAREKAR
1988-06-03
M.P.CHANDRAKANTARAJ
body1988
DigiLaw.ai
CHANDRAKANTHARAJ, J. ( 1 ) THIS is a writ petition presented under articles 226 and 227 of the Constitution of india presumably challenging the correctness and legality of the order passed by the Principal munsiff, Honavar in Election Petition no. 5/1987. The impugned order is dated 10th day of December 1987. ( 2 ) THE facts that led to the election petition may be briefly stated and they are as follows:- petitioner-Narayana Devaru Bhat was a contestant for the membership of Hiregundi mandal panchayat along with few others. Respondent-1 Chandrakanta Sairu kocharekar, Venkatesha Chunda Gouda, subbayya Narayan Gowda, Istan v Shanta dias and 5 others were also candidates who filed their nominations for election held in the year 1987 to the said Mandal Panchayat. At the election Chandrakanta Sairu kocharekar-1st respondent was declared elected by a margin of 4 votes securing more than that of the petitioner- Narayan Devaru bhat. Aggrieved by the declaration of the result he questioned the legality of the results in the election petition filed under Section 14 of the Karnataka Zilla Parishads, Taluk panchayat Samithis, Mandal Panchayats and nyaya Panchayats Act, 1982. (hereinafter referred to as the 'act' ). ( 3 ) THE language of the section makes it imperative that election to the Mandal panchayat shall not be called in question except in the manner provided under section 14 of the Act. Section 15 provides for the contents of the petition and the relief that may be claimed. Section 16 deals with the trial of election petition. Section 17 speaks of the decision to be rendered by the Munsiff at the conclusion of the trial. Section 18 provides for the grounds for declaring election to void. A further reference will be made to this latter sections in the light of the arguments advanced by the learned Counsel for the petitioner. ( 4 ) IN the said election petition, the petitioner had urged many grounds. One of them was that the successful candidate, the first-respondent, was not ordinarily residing in the village Herangadi and therefore not qualified to contest the election in accordance with the provision made in Section 11 of the Act. Other grounds urged in support of his prayer for declaring the said election as void have not been pressed in this Court. Therefore I need not make a reference to them.
Other grounds urged in support of his prayer for declaring the said election as void have not been pressed in this Court. Therefore I need not make a reference to them. ( 5 ) THE only ground strenuously urged in this Court was that the learned Munsiff was in error in dismissing the petition on the ground that he could not go into the question of determining whether the first-respondent was ordinarily resident in the Mandal. Therefore, on that argument or ground the petitioner should fail or succeed. ( 6 ) THE Court's attention has been drawn specifically to paragraphs 10 and 11 of the judgment of the learned Munsiff wherein this question has been dealt with at length. It would be useful at this stage to advert to the evidence produced by the parties. Petitioner produced evidence to show that first- respondent was residing in another village than Herangadi which was his wife's place and he worked for the Co-Operative society which was in the other village and therefore he could not be held to be 'ordinarily resident' in terms of section 11 of the Act. That argument was not accepted by the learned Munsiff on the ground that the name of the first-respondent was in the electoral roll of Herangadi village and therefore it was not open to the Munsiff to go behind that and come to a different conclusion that he was not ordinarily resident of Herangadi. For this he relied upon a decision of this court in the case of Mohammed Gaibkhan v returning Officer, Tumkur [1979 (2) MLJ page 362]. The said decision of this Court itself relied upon the decision of the supreme Court, in the case of Hari Prasad mulshankar versus : v B. Raja [air 1973 SC page 2602].
For this he relied upon a decision of this court in the case of Mohammed Gaibkhan v returning Officer, Tumkur [1979 (2) MLJ page 362]. The said decision of this Court itself relied upon the decision of the supreme Court, in the case of Hari Prasad mulshankar versus : v B. Raja [air 1973 SC page 2602]. The Supreme Court clearly ruled, over-ruling the Gujarat High Court's decision to the contrary that the decision on the question whether a person is ordinarily resident in the constituency of the electoral roll in which his name is entered has been entrusted to the exclusive jurisdiction of the electoral Officer and the appellate authorities under the Act which provided a complete code in the matter of maintaining an electoral roll and a wrong decision on that question cannot be treated as a jurisdictional error and cannot be judicially reviewed either in a Civil Court or before election tribunal ----- Applying that ratio the munsiff declined to accept the argument evidencing the residence of the first-respondent in another village. ( 7 ) IT is too late in the day to contend that the Munsiff has committed any error of jurisdiction or error in law by following the decisions of this Court and the Supreme court. However, Mr. Bhat learned Counsel for the petitioner strenuously contended that having regard to section 11 read with Section 18 of the Act, it was competent for the Munsiff to examine the evidence indicating the residence of the first-respondent in another village and he ought not to have rejected merely on the ground that his name was found in the electoral roll of Herangadi. In order to appreciate this argument it is necessary to set out the following sections:-SECTION 10 reads:- "10. Qualification for membership.- every person whose name is in the list of any Mandal panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member of the Mandal Panchayat". Provided that in the case of seats reserved for scheduled castes and scheduled tribes and women, no person who is not a member of any of the scheduled castes and scheduled Tribes or is not a woman, as the case may be, shall be qualified to be elected to such seat.
Provided that in the case of seats reserved for scheduled castes and scheduled tribes and women, no person who is not a member of any of the scheduled castes and scheduled Tribes or is not a woman, as the case may be, shall be qualified to be elected to such seat. " ( 8 ) AS is clear from the language of section 10 competence to contest an election to the mandal panchayat is derived by the fact that the name of the person finds a place in the voters' list of the mandal panchayat, unless disqualified under the provisions of the act. Section 11 which follows section 10 of the Act reads :"11. Disqualification for cafididates.- (1) a person shall be disqualified for being chosen or nominated and for being a member of a Mandal Panchayat,- (a) if he is less than twenty one years of age: (b) If he does not ordinarily reside in the Mandal; (c) x x x x-x x". ( 9 ) FROM the above section it is clear that the disqualification shall occur when one or other of the enumerated disqualifications factually takes place. If he does not ordinarily reside in the mandal as indicated by clause (b) of sub section (1) of Section 11 of the Act, he shall not be chosen or nominated for being a member of the Mandal panchayat. " ( 10 ) HAVING regard to the scheme of the act, while "chosen" has reference to election to the Mandal, "nominated" has reference to the nomination that is required to be made under sub-section (3) of Section 5 of the Act and not to the filing of the nominations under Section 10 of the Act. What is important to be noticed in Section 12 is sub section (2 ). That sub section clearly provides that it is only the Deputy Commissioner who shall cause a disqualification after hearing the person who has incurred one or the other of the disqualifications set out in section 11. In other words sub section (2) of section 12 contemplates a process or procedure by which the enumerated disqualifications are given effect to. This process may commence either before the election has taken place or after the election has taken place.
In other words sub section (2) of section 12 contemplates a process or procedure by which the enumerated disqualifications are given effect to. This process may commence either before the election has taken place or after the election has taken place. The argument is that clause (a) of sub section (1) of section 18 of the Act provides that if the munsiff is of opinion that on the date of the election a returned candidate was not qualified, or was disqualified, to be chosen as a member under the Act, he shall declare the election of the returned candidate to be void and it was therefore incumbent on the Munsiff to receive and act on other evidence placed by the petitioner to demonstrate that on the relevant date, the respondent-1 was not ordinarily residing at the Mandal. I do not think that such a construction must be put on section 18. Section 18 does no more than enumerate the grounds on which the munsiff may set aside the election. But it does not empower him to interfere with the electoral roll which undisputedly contains the name of the first-respondent with reference to herangadi village. This is the import of the decision of the Supreme Court in the case of Hari Prasad Mulshankar. One should not construe the statute in order to bring about repugnance between one section and another. That rule of construction which does not lead to repugnancy or absurdity shall be adopted by the Court as the golden rule of construction. If section 10 creates a qualification and Section 11 does no more than enumerate the disqualifications and section 12 (2) provides the manner in which a candidate may be disqualified, it will not be open to the Court to ignore those provisions and see clause (a) of sub-section (1) of Section 18 of the Act in isolation and confer jurisdiction on the Munsiff which he otherwise does not have. After all, all that section 10 of the Act does is to make the electoral roll, which is current for the time being, the basis on which the election has to be held. By that, Munsiff cannot be clothed with the power to correct the electoral rolls which is left to other authorities under the Representation of Peoples Act.
After all, all that section 10 of the Act does is to make the electoral roll, which is current for the time being, the basis on which the election has to be held. By that, Munsiff cannot be clothed with the power to correct the electoral rolls which is left to other authorities under the Representation of Peoples Act. ( 11 ) IN that view of the matter, the conclusion reached by the Munsiff is correct and he has rightly rejected the election petition which does not call for interference. ( 12 ) BEFORE parting with this case I must point out that the Court did feel a doubt about the petition under Article 227 being the appropriate remedy notwithstanding that section 14 speaks of the petition being presented to the Munsiff. Reference to munsiff is only reference to the Court of the munsiff and not to his person. The fact is whether Munsiff acts as a Munsiffs Court or a persons designate looses much of its significance in the light of the trend of the more recent decisions, Irrespective of the subject matter with which the Munsiff is seized, he does not cease to be the Presiding Officer of a Court of Munsiff. Therefore I do feel the doubt and express that Civil Revision Petition is the more appropriate remedy and particularly because it is less expensive than proceedings under Article 227, which makes it more favourable to the rural people who constitute the members of the mandal. ( 13 ) IN either event the Court's Jurisdiction is the same that is one of superintendence of tribunals or Courts and confined to the revisional powers and not appellate powers. Therefore irrespective of whether it is writ petition or a revision petition I must express myself that the jurisdiction of this court is limited to one of revisional jurisdiction and not of an appellate jurisdiction. The writ petition is dismissed. --- *** --- .