SUBBAI GOUNDAR Vs. NACHIMUTHU GOUNDAR AND ANR

JUDGEMENT

(1.) This is a petition to quash the order of the Election Commissioner Udumalpet, setting aside the election of the petitioner as President of the Ammandakadavu Panchayat Board on 23rd July, 1959. The Board consists of 13 members of whom the petitioner as well as the first respondent were proposed as candidates for the presidentship at the meeting of the Panchayat Board on 23rd July, 1959, which took place in Ammapatti District Board Elementary School building. The petitioner secured six votes and the first respondent five votes with the result that the former was declared elected as President of the Board. The first respondent impugned the election by an election petition filed before the Election Commissioner on three grounds; two of which found favour with the Election Commissioner, who, as a result, set aside the election. The aggrieved petitioner has, therefore, come up to this Court.

(2.) The first ground which found favour with the Election Commissioner was based upon the undisputed fact that the election did not take place at the Panchayat Board office, but as already stated, at Ammapatti District Board Elementary School building. Rule 21) of the Rules Relating to the Conduct of Election of Presidents and Vice-Presidents of Panchayats framed under the Village Panchayats Act, 1950, states that the election of the President or Vice-President of a Panchayat shall be held in the Office of the Panchayat where there is one, and in case there is no such Office, in a conspicuous place in the village, by the members at a meeting thereof specially convened for the purpose. The Election Commissioner found that this rule was contravened by the election of the President having taken place at a place different from the Office premises of the Panchayat. That there was a contravention of this rule cannot be doubted, as it is common ground that the election took place at said school premises. The Election Commissioner considered that this contravention was fatal to the election. I am unable to agree with this view. In my opinion, Sub-rule (2) of Rule 2 is only directory in character. The sub-rule itself contemplates a contingency where the election of the President may take place in a place other than the premises of the Panchayat. It is true that a contingency may arise only when the Panchayat has no Office and only then the election could be held in some other conspicuous place in the village. Even so, there may be circumstances present in which it may not be convenient or practicable to hold an election of the President in the Office of the Panchayat. The Office of the Panchayat should be such as may be convenient and practicable for holding an election therein so as to attract the application of the first part of Sub-rule (1) of Rule 2. If the Office is not suitable for any reason, it does not follow that merely because the election has been held in another conspicuous place in the village, that amounted to a contravention of the sub-rule. In this case, it is stated that the Panchayat Office has only a pial where, if at all, the election could have taken place, and it was in that circumstance, the election came to be held in the school premises. Even assuming that technically there is a contravention of Sub-rule (1) of Rule 2 I am not satisfied that on that ground, the election is liable to be set aside. The contravention cannot in this case be said to have caused any prejudice, much less material prejudice, to the result of the election. It is not as if any one or more members of the Panchayat were compelled to be absent because of the change in the venue for the election of the President. All the 13 members were present at the election and barring the two candidates the rest of the members participated in the election. The result of the voting showed that the contest was a very close one. In the circumstances, the change of place did not and could not have made any difference to the result of the voting.

(3.) The second ground which was accepted by the Election Commissioner but which is impugned in this Court is that there was a contravention of certain administrative departmental instructions in regard to the fixation of symbols. The instructions were contained in Exhibit A-1 in which ten symbols were prescribed for the President's and Vice-President's elections. The first respondent was allotted the "Clock" symbol while the petitioner was allotted the symbol of an "Umbrella." It appears that the "Clock" symbol is not one of the ten prescribed in the departmental instructions. The Election Commissioner considered that a contravention of the specific standing instructions prescribing the symbols was a sufficient ground to set aside the election. I think this view of the Election Commissioner is wholly unsupportable. The prescription of the symbols being only by administrative instructions and not any rule having statutory force, its contravention cannot be said to be the basis for infraction of any legal rights and obligations. In any case, here again it does not appear that by contravention of the standing instructions prescribing the symbols, any material prejudice has been caused to the first respondent at the voting. The second ground is, therefore, also without substance.