R. Chennappa vs State of Mysore and Others

Sreenivasa Rau, J.—This writ petition relates to the election to the office of the President of the Anekal Town Municipality held en 19-5-1954. While u/s 17, Town Municipalities Act the term of office of Municipal Councillors elected at a general election is 4 years, u/s 23(11) the President''s ten of office is 2 years. The general elections were held March 1952. The period of office of the first, president having expired in April 1954 the election of a president for the remaining period was scheduled to be held on 19-5-1954.

The present Petitioner and Respondent 2 were the competing candidates. At the election each of them got 7 votes. Lots were drawn and they went in favour of the Petitioner who was accordingly declared to have-been elected president. Thereupon Respondents 2 to 8 filed an appeal before the Deputy Commissioner, Bangalore District, under Rule 10 of the rules framed u/s 23 (2) and (3) and Section 208, Mysore Town Municipalities Act and notified as No. L.8S06-ML. 150-51-3, dated 12-11-1951.

The main allegation in the appeal seem? to have been that one of the councilor, Respondent 3 Yelenarasappa, was removed by force on the night of 18-5-1954 and kept away from the place where the election took place with a view to prevent him from exercising his vote, that this was done at the instance of the present Petitioner as it was known that the said councilor would exercise his vote in favour of the rival candidate and that his vote would have resulted in the success of the rival candidate Respondent 2 since the two, candidates had (without reckoning the said vote) obtained an equal number of votes.

The Deputy Commissioner remitted the matter for inquiry to the Sub-Division Officer and after receipt of the records'' of the inquiry reported the proceedings together with his opinion to Government through the Commissioner for Local Self-Government. The election petition was heard on 4-1-1955 by the Minister for Local Self-Government, both the parties being represented by Counsel.

On 22-7-55, the Minister visited Anekal, met most of the councillors and on 26-8-55 orders were passed holding that Respondent 3 had been wrongfully prevented from exercising his vote at the presidential election and that there had been no free and fair election and declaring the election of the Petitioner as President invalid and. directing a fresh election to be hold.

This order is challenged as being without jurisdiction on the grounds (1) that under Rule II Government had no power to examine any witnesses or make further inquiry and had to act cattily on the basis of the report Kent by the Deputy Commissioner and (2) that the inquiry conducted by the Minister was against the principles of natural justice as ho called one person at a time, hoard him in camera and In the absence of the pot Manor and as the material so gathered was nut made available to the Petitioner.

From para 1 of the Government Order dated 26.08.1599 II appears that the Sub-Division Officer and the Deputy Commissioner had concluded that there were no adequate grounds to hold that Sri Yelenarasappa was in any way prevented from exercising, his vote at the elections and that there were no grounds, to set aside the election.

It is urged by Sri V. Krishnamurtliy, the learned Advocate for the Petitioner, that under Rule 11, it is not open to Government in such a case to set aside the election. For this he relies on the wording of Rule 11 which provides that the Deputy Commissioner'' shall report the proceedings together with his opinion to Government through the Commissioner for Local Self-Government and that. thereupon it will lie open to Government to pass orders declaring the election to be invalid.

It is suggested ''that the intention of this rule Is that if the opinion of the Deputy Commissioner is not in favour of disturbing the result of the election it is net open to Government to pass orders declaring the election to be invalid. If, on the 6ther hand, the Deputy Commissioner''s opinion is in favour of setting, aside the election it would ''be open to Government either to accept his opinion W not to accept his opinion, We see no force in lit is interpretation of the language of Rule 11 either on the basis of any principle or on the plain construction of the language.

The intention behind the procedure indicated in K, U is to crucible the inquiry to be held by a subordinate officer, to make the resulting material available to Government and to enable the Government, with-the assistance of the Deputy Commissioner opinion, to arrive at its only cancan for. Whether the opinion of the Deputy Commissioner is in favour of setting aside the election or of allowing it to remain undisturbed, there is offing in the language of Rule 11 to fetter the discretion of Government in arriving at an indo-fervent conclusion.

It is also argued that Rule 11 docs not contemplate a further enquiry by Govt. and that any such inquiry would be ultra vires of the powers of Government; under that rule. It is rue that there is no specific provision for Government directly holding an inquiry under Rule 11, but there is nothing in that rule which prevents Government from holding an inquiry if, in its view, it is necessary to do so.

It may be remembered that the final decision and, indeed, the only decision is to be given by Government and, if for any reason Government is mot Satisfied with the available material, there is no reason in die absence of compelling language in the relevant provisions why Government should not take measures to satisfy itself.

It may be suggested that the only way in which such supplementary material should be brought on record is by remitting the matter for further inquiry to the Deputy Commissioner; but if the Reasoning adopted by the learned Advocate for the Petitioner is accepted, even that course would not be permissible since Rule 11 does not specifically provide for it. It therefore appears to us that this contention has no force.

Of the same character is the objection that Government should not have entertained the petition filed by Respondent 2 and other Municipal councillors before arguments were heard by the Minister. That was only a representation of their case and it w "tatted by the learned Counsel for Respondent 2 that a copy of it had been served on the Petitioner''s advocate before arguments were heard by Government on 4-1-55. As the present Petitioner had an. opportunity of meeting whatever was contained in that petition at the time of arguments, he could have as grievance merely on the ground that it was permitted to be filed.

The next contention is in regard to the inaner in which the-supplementary inquiry was held by the Minister. It has already been mentioned above that arguments were heard by the Minister on 4-1-1955. What happened thereafter for a period of more than six-ninths is not clear, The Minister appears to have visited Anekal on 22-7-55. The Petitioner complain;: that he was not previously intimated of the intended visit and its purpose.

It would appear from the papers available in the case that the Municipality was informed of the intended visit which was staled to be for the pin-pose of ''inquiries'' presumably in relation to the dispute about the presidential election. The communication appears to have been addressed to the Petitioner who was functioning as the President of the Municipality and who accordingly arranged for a meeting of the Council.

As regards the inquiry itself it is alleged in the affidavit in support of the petition that tire Minister called in 13 of the councillors including the Petitioner, that the Petitioner was interrogated about the presidential election and that the other 12 councillors were similarly interrogated but not in the presence of the Petitioner,-that no statements wore recorded .and that the Petitioner was not given an opportunity to know what the various poisons examined had titled about the matter in dispute.

This is not controverter in the counter-affidavit filed on behalf of the Minister. It is stated in that affidavit that no formal inquiry was contemplated and. that therefore no statements were recorded, that the Minister had an informal talk will: each of the councillors with a view to ascertain the atmosphere prevailing and also to have an idea of the background in which to assess the testimony of witnesses recorded by the Sub-Division Officer It is clear that the Petitioner was not made await of what was gathered by the Minister in consequence of his inquiry.

It is urged by the learned Advocate-General appearing for the State that in an inquiry under the rules framed under the Town'' Municipalities Act, it is not necessary to observe all the formalities of a judicial trial. It is further urged by him that the .tenor and tone of the Government Order make it clear Chat it is based entirely upon the material resulting from the inquiry made by the Sub-Division Officer and not upon anything gathered subsequently by the Minister. Our attention is drawn to para 2 of the order in which it is stated:

After going through the evidence recorded by the Sub-Division Officer Dodballapur Sub-Division, and the Deputy Commissioner, Bangalore District, and hearing the Counsel, for the Petitioner it was felt that the findings of the Sub-Division Officer and the Deputy Commissioner could not be beyond controversy and. that the matter might b-s inquired into at Anekal before a final decision could be taken.

It is urged that this statement clearly implies that ''the Minister disagreed with the findings bf the Sub-Division Officer and the Deputy Commissions; in osier. words, that the'' Minister had at that time come to the conclusion that the election had to be set aside. It: is difficult to accept this contention. In the first place, the above-quoted statement neither expressly nor by implication indicates that the Minister had arrived at any conclusion.

All that it shows is that the Minister did not see his way to accept the findings of the Sub- Division Officer and the Deputy Commissioner straightway. Secondly, it shows that in the Minister''s view something more was to be done to enable him to arrive at a final decision. This necessarily means that he had not arrived at a final decision in the matter. This .is placed-beyond all doubt by what is contained in the counter-affidavit filed on behalf of the Minister.

In para 3 it is stated that he had an informal talk with each of the councillors with a view to ascertain the atmosphere prevailing and'' also to have an idea of the background in which to assess the testimony of witnesses recorded by the Sub-Division Officer. These were apparently the additional factors, according to the stand taken by the Minister in the counter-affidavit, that it was necessary for him to gather and consider to enable ''him to come to a final decision.

The Petitioner characterizes the procedure adopted by the Minister in his inquiry as opposed to natural justice and contends that as the decision arrived at by the Minister is based in part at least on his own inquiry, it has to be quashed. The learned Advocate-General, appearing for the State argues that the inquiry held by the Minister, though it might not have been attended by the formalities relating to a judicial inquiry in Court, was conducted fairly. He has referred to the decision reported in Province of Bombay Vs. Kusaldas S. Advani and Others, , for the proposition that prescribed forms of procedure are not: necessary to make the inquiry judicial.

That was a case relating to thy requisitioning of certain premises under the Bombay Land Requisition Ordinance (5 of 1947). The majority of the learned Judges of the Supreme Court held that both the act of requisitioning and the determination whether such requisitioning was for a public purpose or not were administrative acts and while discussing the distinction between an administrative act and a judicial or a quasi-judicial act, the above observations have been made. They are made in the context of the criteria by which it has to be ascertained whether an act permitted or prescribed unifier an enactment is an executive act or a judicial act and do not negate to the question as to how judicial or quasi-judicial functions are to be fulfilled.

In this case, there is no doubt or dispute about the. nature of the act performed by Government in giving a decision under Rule 11. A decision on air appeal petition questioning the election of a candidate as president of a Town Municipality is clearly of a judicial character. Nor does the learned Advocate-General dispute this. Nevertheless, it may be conceded that it is not necessary for the functionary invested with the right to inquire to observe all the formalities of judicial procedure in a Court of law.

But to use the wording employed in the above decision of the Supreme Court, the well recognized [principles of a judicial approach are required to be followed in arriving at a decision. One of the unchallenged principles is that the parties affected must be apprised of the material appearing against tilt and must be given a chance of meeting it or having their say about it.

As mentioned stove, the procedure employed by the Minister in interviewing each of the Council lore separately precluded the possibility of the affected parties knowing what the material gathered by the Minister was. It is admitted that the Petitioner was not apprised of it and that no statements were recorded. It is also admitted that after the Minister''s inquiry, the petition was not posted for hearing arguments again before the order dated 26-8-55 was passed by Government. It is thus clear that the Petitioner had no opportunity what of acquainting himself with the material, if any, against him resulting from the Minister''s inquiry, which he had to meet.

It is urged by the learned Advocate-General that such material has not been used by him as would be seen from the tuner of the order. This has already been dealt with above and shown to be untenable. If in the Minister''s view, die ''back ground'' and the ''atmosphere'' were factors necessary for enabling him to assess the evidence already on record it is clear that the material relating to the: '' background'' and ''atmosphere'' was of import once and the parties had the right to be apprised of it and that this was a matter of substance and not merely of form. The inquiry held by the Minister was thereof in contravention of natural fustic.

In this connection reference may be made to the decision reported in - Janab N.S. Sattar Sahib Vs. State of Madras and Another, . , That was a case in which the Government of Madras set aside an order of the Central Road Traffic Board. The High Court quashed die order1, of Government on the ground that "it disclosed ''ex facie'' that they had passed the order after reading a petition from certain Congress workers which was not strictly permissible in law. The Government did not say that they acted upon the petition. At the same time they did not say that the petition did not in any manner influence them in coming to their conclusion.

The High Court held that in these circumstances it could not be said that that petition might not have influenced the Government in passing their order. It was on this ground that the Government''s decision was quashed. In the present case, not only is there no statement in the Government Order to the effect that the further inquiry, did not influence the Minister in coming to his decision but it is stated that the inquiry itself was conducted by the Minister to enable him to arrive at a final decision.

The proposition that a decision based on material gathered behind the back of the party affected is opposed to principles of natural justice is well established and hardly needs support. The learn1 ed Advocate for the Petitioner has quoted a number of English decisions laying down this principle, This has been accepted and acted upon by Indian Courts. Reference may be invited to - Debendra Bandhu Lahiri Vs. The State of West Bengal and Others, , in which it was held that the Excise Commissioner who decides an appeal from the order the Collector cancelling a license in respect of e country spirit shop after hearing the Excise Office behind the back of the licensee and confirms the order of the Collector without giving an opportunity to the licensee! of meeting any particular statement the Officer might have made, fails to follow the principles of natural justice.

In - ''Dhakeswari Cotton Mills Ltd. v. Com missioner of Income Tax, West Bengal'' (Si AIR 1955 SC 65 -D), the Supreme Court; set asides the order of the Income Tax Appellate Tribunal, Calcutta, in respect of the assessment of the Appellate-Company to Income Tax on the ground that an assessment made without disclosing to the as sessile the information supplied to the assessing authority and without giving mi opportunity to the assessed to rebut the information so supplied constituted a violation of the fundamental rules of justice.

The matter no doubt came up before the Supreme Court under Article 136 of the Constitution, but it is undoubted that a Writ of Certiorari will issue against the proceedings of an inferior tribunal not only when it acts without jurisdiction or in excess of its jurisdiction, but when it contravenes the principles of natural justice.

We accordingly direct the issue of a Writ of Certiorari quashing the order No. L. 0207-09/MI '' 95-55-5 dated 20-8-55 declaring the election of the Petitioner as President: of the Town Municipal Council Anekal, to be invalid. It is hardly necessary to add that since in quashing the order we have not dealt with the merits of the election appeal petition, it is not only permissible but incumbent upon Government to take up the appeal petition from the stage which we have found. It be affected by the breach of the fundamental rule of natural justice i. e., from the stage of arguments heard on 4-1-1955 and dispose it of according to law. (Vide the Madras decision already referred to above AIR 1952 Mud 605 (B) ). There will be order as to costs.

The Petitioner has also approached this Court with an implication under Article 227 of the Constitution directed against the same order of Government, Since relief has been granted by the issue of a Writ there is no need to consider this Petition. C.P. 92/35 is accordingly dismissed. There will be no order as to costs of this petition also.