M SAVADHANI Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner offered himself as a candidate for election to the Town Municipal Council, Hiriyur, and was declared duly elected at the elections on 12-3-1952. On 5-5-1952 there was an election for choosing a President of the Council and the petitioner stood as a candidate and was declared duly elected then also. Thereupon he appears to have entered upon his duties as President. Subsequently on 20-8-52 respondents 3 to 5 who are described as three other Municipal Councillors made an application to the Government purporting to be under Section 14, Mysore Town Municipalities Act, 22 of 1951, praying that the Government should declare that a vacancy had arisen in regard to a Municipal Councillorship of the 11th Division of the town out of which the petitioner had been elected and seeking his removal from the office of the President. On that application the Minister for Public Health and local Self-Government passed an order on 19-1-53 holding that Sri M. S. Avadhani, the petitioner, stands disqualified being less than 25 years of age. That order purports to have been passed under Section 14 (1) (A) (e), Mysore Town Municipalities Act. This disqualification continued to exist and therefore his seat was to be declared vacant by the Government. The petitioner has therefore filed this petition under Article 226 of the Constitution of India praying for the issue of a 'Writ' of 'certiorari' quashing the Government Order dated 19-1-53 or such other proper 'writ' as the Court may deem fit.

(2.) The petitioner has in his affidavit accompanying the petition described the procedure adopted in accordance with the relevant election rules and those facts are not disputed. The electoral roll of the Hiriyur Town Municipal Council was published on 25-1-1952. The final list of voters was published on 18-9-52. Rule 2 of the Election Rules issued by the Government on 25-9-1951 and published in the Mysore Gazette dated 27-9-1951 provides that two months prior to the date of the expiry of the term of office of the municipal councillors, the Returning Officer, who is the Amildar of the Taluk in which the Municipal Council is situate, shall prepare for every division an electoral roll in which shall be included the names of all persons appearing to be entitled to be registered therein. It should be published in the Division together with a notice specifying the mode in which & the time within which claims for inclusion in the roll or objections to any names or particulars entered in the roll are to be preferred. Under Rule 4 the electoral roll for each constituency should be prepared in Kannada in Form I, and under Rule 5 it shall contain the number and name of division, the name of each elector, the name of the father of each elector, or if the elector is a woman the husband's name, or other identifying particulars, and the sex, the 'age' of each elector and the number of the house at which he resides. The electoral roll is to be given wide publicity under Rule 6 by publication at the Municipal Office, Taluk Office and in such other conspicuous place in each division as the Returning Officer may deem fit, and any person whose name is not entered in the roll or is entered incorrectly, or any person who objects to the inclusion of his own name or the name of any other persons in the roll, has to prefer a claim or objection to the Returning Officer. All such claims and objections are to be made in writing and within 14 days from the date of the publication accompanied by any documents on which the claimant or objector relies. Under Rule 8 the Returning Officer is bound to hold a summary enquiry into the claims or objections preferred and has to record his decision in writing; and that rule provides expressly that for the purpose of the Returning Officer's enquiry, the roll as published, shall be presumed to be correct and complete until the contrary is proved. The Returning Officer will then decide on all claims and objections and the orders passed by him are declared to be final under Rule 10. The Returning Officer has then to publish the final electoral roll with the said amendments in the same manner as is set out above and with the same publicity within 10 days from the last date of the receipt of objections, and a copy of the final electoral roll duly certified by the Returning Officer should be forwarded by him to the Deputy Commissioner for deposit in his office. Section 14 (1) (A) (e), Town Municipalities Act provides that no person shall be qualified for being chosen and for being a councillor who is less than 25 years of age.

(3.) It is undisputed that the petitioner's age was shown as 27 years in the preliminary as well as in the final electoral roll and that nobody then ever thought of disputing it. After he was declared duly elected no application was made contesting his election on the ground of under-age or any other ground. Later when he stood for Presidentship and was duly elected as such also neither the respondents nor anybody else took up the matter in appeal to the Deputy Commissioner as provided by Rule 10 of the Rules framed for the election of a President and Vice-President of a Town Municipal Council within 7 days of the election. The petitioner complains that without resorting to any of the above remedies provided by the statute respondents 3 to 5 made an application before Government months after all the abovementioned remedies were barred and that the order of the Government passed on such an application was entirely without jurisdiction and was wholly void.