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Ramaswami Goundan Vs. Srinivasan Chettiar and Muthu Velappa Gounder and Two ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai
Decided On
Judge
Reported in(1923)ILR46Bom536
AppellantRamaswami Goundan
RespondentSrinivasan Chettiar and Muthu Velappa Gounder and Two ors.
Excerpt:
madras local boards act xiv of 1920, sections 55 to 57 - rule 10 of transitory provisions--nomination of a retiring president as a member of the new board under act xiv of 1920, legality of--election of the nominated member as president of new board--order of district judge setting aside his election as president on a wrong construction of statute--district judge, a court, and not persona designata--decision of district judge declared 'final' by act xiv of 1920--revisional powers of high court under section 115, civil procedure code, and section 107, government of india act. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised.....krishnan, j.1. these petitions arise in. connexion with the election of the president of the taluk board of gopichettipalaiyam under the new madras local boards act xiv of 1920. petitioner before us, mr. ramaswami grounder, and one of the respondents, mr. venkatesa iyer were the rival candidates for the place. in the election on the 15th of march last, the date fixed for it, mr. gounder was declared duly elected. thereupon an application original petition no. 51 of 1922 was made to the district judge of coimbatore under section 57 of the act to have it declared that mr. gounder was disqualified as a member under section 55, clauses (2), (5) and therefore unfit to be a president under section 15, clause (1). on this petition the district judge gave a declaration that mr. gounder was.....
Judgment:

Krishnan, J.

1. These petitions arise in. connexion with the election of the President of the Taluk Board of Gopichettipalaiyam under the new Madras Local Boards Act XIV of 1920. Petitioner before us, Mr. Ramaswami Grounder, and one of the respondents, Mr. Venkatesa Iyer were the rival candidates for the place. In the election on the 15th of March last, the date fixed for it, Mr. Gounder was declared duly elected. Thereupon an application Original Petition No. 51 of 1922 was made to the District Judge of Coimbatore under Section 57 of the Act to have it declared that Mr. Gounder was disqualified as a member under Section 55, Clauses (2), (5) and therefore unfit to be a President under Section 15, Clause (1). On this petition the District Judge gave a declaration that Mr. Gounder was disqualified for appointment as a member. It may be mentioned that the date fixed for the new Taluk Board to come into existence in the notification under Rule 9 of the Transitory Rules was the 1st of March; the elections and nominations were over by the 21st of February on which date the President of the District Board, Coimbatore, had nominated Mr. Gounder as a member of the new Board to take effect from the 1st of March. It is this nomination that the District Judge has held to be bad. Civil Revision Petition No. 342 of 1922 and Civil Miscellaneous Petition No. 1870 of 1922 are against the order in Original Petition No. 51.

2. About the same time, two other members of the new Board filed Original Petition No. 47 of 1922 making a number of allegations of corruption, fraud and other election offences against Mr. Gounder and prayed for an inquiry and asked that his election as President might be declared void and a re-election ordered. This petition was filed under the Rules framed by the Government of Madras under Section 199 of the Act for the trial of election petitions and published in the Fort St. George Gazette, No. 650, dated 14th June 1921. The District Judge heard this petition and Original Petition No. 51 together and without holding an inquiry on evidence held that on his finding in Original Petition No. 51 that Mr. Gounder was:

ineligible to be a member of the reconstituted Taluk Board, his election to the presidentship of that body became illegal,

and made a declaration to that effect purporting to act under Rule 11 (o) of the Rules. He then proceeded to declare Mr. Iyer to have been duly elected as President without any opportunity being given to Mr. Gounder or to any others to attack his election on grounds of corruption, etc., which had been alleged by Mr. Gounder in his written statement. Civil Revision Petition No. 341 of 1922 and Civil Miscellaneous Petition No. 1869 of 1922 are filed against these orders.

3. There can be no doubt that the orders of the District Judge are wrong. The argument is put thus by him. Under Rule 10 of the Transitory Rules Mr. Gounder continued as President till the new President was elected and took charge; that must be after the 15th of March the date of the election. Mr. Gounder must therefore be taken to have continued as a member of the Board as no one can be a President without being a member and that as Section 55, Clause (25) says:

a person who is already a member of the Local Board whose term of office will not expire before his fresh election or appointment can take effect is disqualified for election or appointment.

4. Mr. Gounder's nomination or appointment as member to take effect on the 1st of March was therefore illegal. The District Judge says, he ceased to be a member and his election as President was bad. Under what Rule and when he ceased to be a member the Judge does not say. If the nomination is bad because Mr. Gounder was already a member, he must be taken to have continued as a member under his original right unless under some Rule or other his membership ceased. Loss of presidentship does not carry with it loss of membership. No Rule has been pointed out to us as having that effect, unless Rule 10, Clause (2) of the Transitory Rules is applied in which case his membership ceased on the 1st March and his nomination was not obnoxious to Section 55, Clauses (2), (5).

5. The fact is the District Judge has misconstrued Rule 10 altogether. Clause (1) of it merely continues the presidentship of the old President and not his membership. Clause (2) deals with the office of member and makes it expire with the date fixed in the notification under Rule 9. That Clause applies in my opinion to the membership of all members including that of the President. No doubt the words 'office of other members' are used in Clause (2) but that, I think, is to distinguish the office of the President from the office of the members.

6. It is said that this view contravenes the Rule that the President should be a member of the Board. As a matter of fact in this case Mr. Gounder was nominated a member as soon as his old membership ceased and there was no gap. But even if Rule 10 contravenes the Rule above stated Rule 10 must prevail under Section 238 of the Act.

7. The District Judge's view leads to the extraordinary result that no one who was a President of the old Board at the time of its reconstitution could stand as a candidate for the first presidentship of the new Board; a result which I cannot accept that the legislature intended without very clear language showing it.

8. If, as I hold, the District Judge was wrong in thinking that Mr. Gounder's nomination was bad, the whole basis of his judgment fails and his orders are all wrong. But it is argued for the respondents that we have no power to interfere with them in revision or by way of writ of certiorari because it is said that the District Judge in disposing of these petitions was acting as a persona designata and not as a Court and was not subordinate to the High Court nor subject to its appellate jurisdiction as required by Sections 115, Civil Procedure Code, and 107 of the Government of India Act, to enable us to interfere. It was further contended that as orders under Section 57 and under Rule 12 of the election Rules are both declared to be final we cannot interfere and also that even if Section 115 or Section 107 applied to such proceedings as these we should not interfere in the present case because there is no question of jurisdiction or material irregularity of procedure to justify our interference. It is also argued that a writ of certiorari will not lie both because the inquiry is not a judicial one and because there is no question of want of jurisdiction arising here. The petitioner argues to the contrary.

9. I shall consider these arguments first with reference to Original Petition No. 47 of 1922 which was filed under the election Rules. It seems clear from the Rules that the District Judge and the Subordinate Judge are given jurisdiction under them not as mere persona designata but as the presiding officers of their respective Courts and they act as Courts in their inquiry into such petitions. Rule 4, Clause (3) expressly says that in certain cases the Judge may direct any Court subordinate to him to hold the inquiry. A District Judge or Subordinate Judge has no Court subordinate to him when acting as a persona designata but only -when acting as the District Court or the Subordinate Court. This point seems to be strongly in favour of petitioner's contention. But this is not the only indication to show that the Judge acts as a Court in disposing of election petitions, for Rule 6 makes the procedure for trial of suits under the Civil Procedure Code applicable to inquiries under election petitions as nearly as may be. Evidence is taken on oath and provision is made for hearing counsel. The Judge has finally to come to his decision between the parties judicially and not arbitrarily. All these to my mind support the view that the Judge acts Court.

10. The use of the term 'Judge' instead of the term 'Court' in the Rules is, I think, not sufficient to imply that he acts as persona designata any more than the use of the word 'Court,' would necessarily imply the contrary; see the observations in Minakshi v. Subramanya I.L.R. (1886) Mad. 26. and Municipality of Belgaum v. Rudrappa I.L.R. (1916) 40 Bom. 509. The words 'inquiring authority' used in the Rules to which also our attention was drawn by the respondents' vakil are only used as a compendious way of referring to the District Judge or the Subordinate Judge who conducts the inquiry and no inference can be drawn from their use. I think the objection to our interference against the orders in Original Petition No. 47 of 1922 on the ground of the Judge not acting as a Court fails.

11. The next question is whether the provision in Rule 12, Clause (3), that orders under Sub-rules (1) and (2) shall be final is a bar to the exercise of our revisional powers. Full effect can be given to the provision by holding that it prevents interference with the order by way of appeal or by suit. When revisional powers are intended to be taken away, it has always been held that it must be done by express words to that effect. Finality can be attached only to orders passed with jurisdiction as those without jurisdiction are really nullities. The meaning of the word 'final' has been considered in Matangini Debi v. Girish Chunder Chongdar I.L.R. (1908) calc. 619. and the cases therein cited and also in Valli Ammal v. The Corporation of Madras I.L.R. (1915) Mad. 41. and it was held not to exclude the High Court's powers of revision. Following these cases I hold that Rule 12 (3) is no, 'bar' to the exercise of our revisional powers.

12. The next question is whether we should decline to interfere on the ground that no question of jurisdiction arises. Before dealing with this point I shall consider the arguments with reference to Original Petition No. 51 of 1922 as the order in it is made the basis of the orders in Original Petition No. 47 by the District Judge.

13. The first contention in Original Petition No. 51 also, is that the District Judge acted only as a persona designate and not as a Court under Section 57 of the Act. The question is more difficult to decide under the Section than under the Rules as the indications are not so clear. But on the whole, I have come to the conclusion that there is no certain indication that the District Judge is to be treated merely as a persona designata under the Section. He is the Presiding Officer of an existing tribunal and jurisdiction is given to him in words which refer to the territorial jurisdiction conferred upon his Court. I have already held that the use of the word 'Judge' instead of the word 'Court' is inconclusive. Clause (2) gives him the right to make such inquiries as he thinks fit but says nothing of the procedure to be adopted for them. I take it that when he does make an inquiry he will adopt the same procedure as for any other judicial inquiry in his Court for otherwise he could not, merely as a persona designata, examine witnesses on oath. The principle stated in National Telephone Company, Limited v. Postmaster-General [1913] A.C. 548. that when jurisdiction is given to a Court without defining the procedure to be followed, it will attract the ordinary procedure of that tribunal, will have to be applied. The inquiry may often be of a complicated kind as he has to determine under Sections 55 and 56 questions such as whether a person is insane or interested in a contract with the Local Board or has ceased to reside within jurisdiction and so forth. Such an inquiry cannot be held satisfactorily without taking evidence on oath; but to do so the Judge must be acting as a Court and not as a mere nominated individual; It is true he can dispense with any inquiry if he deems fit; but that is inconclusive in deciding whether he acts as a Court or as a persona designata, for in either case he may be given that power as no inquiry may be necessary in some instances. He has farther to give a decision between the parties as to whether the person concerned is disqualified from being a member under Sections 55 or 56 of the Act or not. I take it he has to give his decision not arbitrarily but judicially, particularly as it is declared to be final in the Section, These circumstances show to my mind that the District Judge is acting as a Court and not as a mere persona designata under Section 57 of the Act as well.

14. I shall now consider the authorities cited by the learned vakil for the respondent in support of his contention. The first case he quoted is Balaji Sakharam v. Merwanji Nowroji I.L.R. (1897) 21 Bom. 279. That was a case under the Bombay District Municipalities Act II of 1884. No doubt the learned Judges held that the District Judge in acting under Section 23 of the Act was not a Court and no revision lay against his order. There is, however, no discussion in the judgment, the learned Judges following a previous judgment of the same Court reported on page 87 of P.J. 1894. Turning to that case we find no discussion there either, the learned Judges again following two of their previous unreported decisions in applications Nos. 127 of 1892 and 236 of 1889 which are not available for reference. The reasoning of the learned Judges for their conclusion is thus not known. But accepting their decision, it is clearly distinguishable from the present case, for there is a clear distinction between the language of Section 23 of the Act they were dealing with, and that of Section 57 of the Local Boards Act though there is undoubtedly some similarity as well. The Bombay Act provides that for purposes of the inquiry the District Judge may exercise any of the powers of a Civil Court. This may well have been held to indicate that the District Judge when making the inquiry was not a Civil Court himself. Each case has to be judged on its own language and I am unable to treat the Bombay case which deals with a different Act as an authority for the present case.

15. The next case referred to is Vijiaraghavalu Pillai v. Theagaroya Chetti I.L.R. (1915) Mad. 581. This case arose under the Rules framed by the Government under the City Municipal Act, Madras Act 111 of 1904, whereby a Presidency Magistrate was to decide as to the competency of a candidate for a municipal election. It was held that the Magistrate's order was passed by him as a 'referee' between the President of the corporation and the candidate and not as a Court. This case is again no authority in the present case as the language to be construed was not the same and the considerations that prevailed there do not arise here. On the other hand it was held in Vasudeva Aiyar v. The Negapalam Devasthanam Committee I.L.R. (1915) Mad. 594. that an order of the District Court under 'Section 10 of the Religious Endowments Act was revisable by the High Court and this view was confirmed . by the Privy Council in Balakrishna Udayar v. Vasudeva Ayyar I.L.R. (1917) Mad. 793 The authorities therefore do not conclude the case before us.

16. The answer to the argument based on the use of the word 'final' in Section 57 is the same as in the case of election Rules and need not be repeated. As I am holding that both in the case of Section 57 and in that of the election Rules jurisdiction is given to the District Judge as the District Court and is really a supplemental jurisdiction conferred on an existing tribunal and as the District Court is subordinate to the High Court and subject to its appellate jurisdiction, it is open to us to revise its orders both under Section 115, Civil Procedure Code, and under Section 107 of the Government of India Act. It is not therefore necessary to consider the applications for the issue of writs of certiorari.

17. The last argument of the respondent is that there is no question of jurisdiction or irregular exercise of it in the present case to justify our interference. What happened in this case is that by an erroneous construction of Rule 10 of the Transitory Rules taken with Section 55, Clause (2) (5), the District Judge assumed jurisdiction to declare the membership of Mr. Gounder as void and as a necessary consequence his presidentship also and he then went on to declare that Mr. Iyer was duly elected without giving any one an opportunity to show that his election was vitiated by the commission of election offences as alleged in the written statement of Mr. Gounder. That, I am inclined to think, amounts to acting with material irregularity or illegality in the exercise of his jurisdiction. To assume jurisdiction to do a certain act by taking an erroneous view of law, when there is really no jurisdiction, raises a case for interference under Section 115, Civil Procedure Code. See the observations in Atchayya v. Sri Seetharamachandra Rao I.L.R. (1916) Mad. 195. Mr. Justice Channel observes in Reg v. Manchester Justices (1899) 1 K.B. 571:

It seems to me to be clear that a tribunal cannot give itself jurisdiction which it has not got by taking an erroneous view of the law.

18. I think the order on Original Petition No. 51 falls within the Rule and we must set it aside and Civil Revision Petition No. 342 of 1922 is therefore allowed with costs here and in the Court below and Original Petition No. 51 of 1922 is dismissed. As regards Original Petition No. 47 of 1922 it falls with Original Petition No. 51, as the order in it is based on the order in the latter. There is further the material irregularity pointed out above. Civil Revision Petition No. 341 must be allowed and the order on Original Petition No. 47 of 1922 must be reversed and the petition remanded to the District Judge to be disposed of according to law on the merits. The costs of the petitioner in the High Court in that petition will be paid by respondents 1 and 2. The costs in it in the lower Court will abide and follow the result.

19. Civil Miscellaneous Petitions Nos. 1869 and 1870 of 1922 are dismissed but without costs.

Venkatasubba Rao, J.

20. The District Judge of Coimbatore has set aside the appointment of Mr. Ramaswami Gounder as a member of the Taluk Board of Gobichettipalaiyam and has further declared his election as the President of the Taluk Board illegal and the District Judge has made a further order declaring Mr. Venkatesa Iyer to have been duly elected President of the Taluk Board. The propriety of these orders is questioned by Mr. Ramaswami Gounder before us.

21. Before entering on a discussion of the questions of law raised, I may briefly state the facts that led to the passing of the above orders.

22. Under the Madras Local Boards Act, 1920, the Local Government is required to fix by notification the date on which the first reconstituted Taluk Board in any taluk shall come into existence. Accordingly by a notification, dated 3rd January 1922, the reconstituted Taluk Board of Gobichettipalaiyam was brought into existence with effect from the 1st March 1922. Under Rule 10 of Schedule 10 to the Act the term of office of the members of the Taluk Board holding office at the commencement of the Act would, subject to an exception presently to be noticed, expire on the date fixed in the notification, viz., 1st March 1922. Contemporaneously with the expiration of the terms of office of the old members, the members elected or appointed under the Act for the first time were to assume office as the members of the reconstituted Taluk Board (see Rule 9 of Schedule 10). The result is that there is no interval of time between the going out, of the old members and the coming in of the new members. To achieve this object it is further provided that the President of the District Board shall in respect of the Taluk Board in his jurisdiction make appointments and cause arrangements to be made for election of members, so that the newly appointed or elected members may come into office on the date specified in the notification (see Rule 12 (2), Schedule 10). The elections and appointments were accordingly completed by the 21st February 1922 and Mr. Ramaswami Grounder was under Section 9 (b) of the Act appointed a member of the Taluk Board by the President of the District Board. Under Rule 12 (3) of Schedule X on the first reconstitution of the Taluk Board or as soon as may be after such reconstitution, a meeting should be held at a time to be fixed by the President of the District Board for the election of the President of the reconstituted Taluk Board. In pursuance of this provision the 15th March 1922 was fixed for the election of the President, Mr. Ramaswami Gounder and Mr. Venkatesa Iyer being the candidates that stood for election. The election was held and Mr. Ramaswami Gounder was elected President.

23. Two petitions were filed before the District Judge of Coimbatore, Original Petition No. 47 of 1922 and Original Petition No. 51 of 1922. In Original Petition No. 47 of 1922 two of the elected members of the Taluk Board Muthu Velappa Gounder and Kaliana Gounder called into question the election of Mr. Ramaswami Gounder as President and joined as respondents to that petition Mr. Ramaswami Gounder and Mr. Venkatesa Iyer. This petition was filed under Section 199 (c) of the Act and under the Rules made under that Section in respect of the conduct of inquiries, etc., relating to elections.

24. Original Petition No. 51 was filed by Srinivasan Chettiar questioning the appointment of Mr. Ramaswami Gounder as a member of the Taluk Board and to that petition the latter alone was made a respondent. This petition was filed under Section 57 of the Act.

25. The District Judge dealt with Original Petition No. 51 and came to the conclusion that Mr. Ramaswami Grounder's appointment as a member was invalid and set, aside the said appointment.

26. Before dealing with the grounds of the District Judge's decision it must be noted that Mr. Ramaswami Grounder had been a member and the President of the Taluk Board constituted under the old Act. I shall first refer to the provisions of the Act on a construction of which the District Judge has come to this conclusion.

27. Section 55, so far as it is relevant to the present purpose is in the following terms:

A person shall be disqualified for appointment as a member of the Local Board if such person is at the date of appointment already a member of the local board whose term of office will not expire before his appointment can take effect.

28. Rule 10 (1), (2), (8), of Schedule X (Transitory Provisions) runs thus:

(1) The term of office of the President of a Taluk Board holding office at the commencement of this. Act shall extend until a new President elected or appointed under Rule 12 (3), assumes office.

(2) The term of office of the other members of a Taluk Board holding office at the commencement of this Act shall expire on the date fixed in the notification under Rule 9.

(3) Such President and members shall during the period specified in Sub-rules 1 and 2 have 811 the powers and be subject to all the duties of the President and members respectively of a Taluk Board under this Act.

29. The District Judge has held that under Rule 10 (1) the term of office as member of Mr. Ramaswami Gounder became extended and that as on the date his appointment could take effect he was already a member of the Local Board he was disqualified to be appointed a member of the new Board under Section 55 (5).

30. It seems to me that this decision is clearly wrong. On a reading of 10 (1) and 10 (2) together, the intention of the legislature appears to be that the term of office of all the members as members should expire but that the term of office of the President as President should extend for a further period. The object of this exception in favour of the President is obvious. On the date fixed in the notification the new Taluk Board comes into existence, the old members go out and new members assume office, but there is bound to be an interval of time between the coming into existence of the reconstituted board and the election of the President. The interval in this case happened to be a fortnight.

31. It is necessary that the executive work of the Taluk Board should be carried on without a break and for this contingency a provision was inserted that the President of the old Taluk Board should continue to be the President until the new President elected or appointed should assume office. The Rules in Schedule X are termed 'Transitory Provisions' and are made under Section 238 of the Act which occurs in the chapter headed 'Transitional and Transitory Provisions.' These provisions and Rules were enacted to meet difficulties that may arise in connexion with the first constitution of the boards. As it was felt that the continuance of the President was essential, a special Rule was made extending his term of office. It does not follow that because his term of office as President was extended, his term of office as a member was also necessarily extended. As a matter of fact there is no need to do so and it would be contrary to the intention of the legislature that the president whose term of office was extended necessarily also continued to be a member. It is true that Rule 10 (1) and (2) could have been more skilfully drafted, but I think on a reasonable construction of the terms of these provisions, no other conclusion than what I have stated above is possible. The District Judge's reason for rejecting this construction is that both under the old and the new Act, only a member can be appointed or elected as a President and no person can be a president unless he is also a member and the District Judge refers to Sections 15 and 22 (2) of the old Acts and Sections 12 (2) and 15 of the new Act. In adopting this line of argument the District Judge seems to have ignored Section 238 of the Act which is as follows:

In their application to the members and presidents of the Local Boards in office on the date of commencement of this Act and the first reconstitution of such boards in accordance with this Act, the provisions of this Act shall be read subject to the Rules contained in Schedule 10.

32. From this Section it is clear that in the transitional stage there may be a President of the Taluk Board who is not a member thereof. It therefore seems to me both on a consideration of the principles underlying the transitory provisions and of the construction of the various Sections and Rules referred to above that the office of Mr. Ramaswami Grounder as member of the Taluk Board did expire on the 1st March 1922 and that only his term of office as President was extended for a further period.

33. If the view of the District Judge were correct it would follow that the President of the old Taluk Board would be disqualified to be a member of the reconstituted board; that is to say, the person who occupied the most important position in regard to the Taluk Board which became dissolved would by reason of the very fact that he occupied that important position, be placed under a disability and would be prevented from being even a member of the Taluk Board. This result would be preposterous and the Courts would not adopt a construction which would lead to such a result unless driven to do so by the plain language of the provisions of the Act.

34. I am therefore clearly of opinion that the appointment of Ramaswami Gounder as a member was valid and the order passed in Original Petition No. 51 of 1922 by the District Judge declaring the appointment invalid is wrong.

35. As I observed, the District Judge had before him two petitions, No. 51 of 1922 challenging Mr. Grounder's appointment as a member and No. 47 of 1922 disputing his election as President. Original Petition No. 51 of 1922 was filed under Section 57 'which deals with the disqualifications specified in Sections 55 and 56. But Section 57 is confined in terms to objections to election or appointment as member and therefore although the petition contained a prayer for setting aside the election of Mr. Grounder as President on the ground that the validity of his election as President was dependent on the validity of his appointment as a member, the District Judge rightly decided that he could not in that petition adjudicate on the validity of Mr. Gounder's election as President. Original Petition No. 47 of 1922 was an election petition presented under the Rules made under Section 199 for the decision of election disputes challenging the election of Mr. Gounder as President and it contained various charges of corruption, etc., of which he was alleged to be guilty but did not allege that his election as President was invalid because he was not validly appointed a member. The District Judge having decided in Original Petition No. 51 of 1922 that Mr. Gounder's appointment as member was invalid, recorded a decision in Original Petition No. 47 of 1922 that his election as President was invalid because he was not a validly appointed member. In other words the District Judge considered it unnecessary to inquire into any of the allegations made in Original Petition No. 47 of 1922 and decided against the validity of the election of Mr. Gounder as President solely on a ground not taken in the said petition but taken only in Original Petition No. 51 of 1922.

36. It has been argued before us that the District Judge was in error in having in these circumstances set aside the election of Mr. Grounder as President and I am of the opinion that this argument is sound.

37. Exception is taken to the orders of the Judge on another ground which seems to me to be a very substantial ground. As I have already pointed out in Original Petition No. 47 of 1922 both Mr. Ramaswami Gounder and Mr. Venkatesa Iyer were respondents, but relief that was asked was merely that the election of Mr. Gounder as President of the Taluk Board should be declared void and a reelection ordered. In the written statement of Mr. Gounder it was alleged.

the second respondent and his supporters have committed various corrupt and illegal acts in connexion with this election and are guilty of such acts but it is not necessary to detail them here as the petition is not for declaring the second respondent as duly elected.

38. The District Judge, however, declares by his order that the second respondent Mr. Venkatesa Iyer had been duly elected President of the Taluk Board. In so doing the District Judge has contravened the very clear provisions of the Rules made under Section 199 (2) (c) referred to above. Rule 9 says:

Where at any enquiry into an election petition any candidate other than the returned candidate claims the seat for himself the returned candidate or any other candidate to the proceeding may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented complaining of his election.

39. Rule 3 is in these terms:

The petitioner may if he so desires in addition to calling in question the election of the returned candidate, claim a declaration that he himself or any other candidate has been duly elected.

40. It is clear that no such declaration was asked for in the petition and from the papers before us it does not appear that Mr. Venkatesa Iyer claimed the seat for himself. In any event Mr. Gounder had a right to adduce evidence in support of the allegations of corruption, etc., made by him against Mr. Venkatesa Iyer and without giving the former an opportunity to adduce such evidence, the District Judge has made a declaration, that the latter was duly elected.

41. The District Judge disposes of the matter in these words:

There will be some justification for ordering a fresh election if the second respondent had been able to get only a few votes as against the first respondent. A fresh election means a delay and I should think that the second respondent should have the benefit of his fairly large number of votes at the election of the 15th March.

42. This ground is utterly untenable and the order of the District Judge on this point is wrong.

43. To sum up, I hold:

(1) That the District Judge's view of the law is wrong and that by taking a wrong view he declared Mr. Gounder's appointment as member and election as the president invalid and gave a further declaration that Mr. Venkatesa Iyer was the duly elected president. His decision is tantamount to removing Mr. Gounder from membership and from his office as president, and restraining him from acting as member or president and in addition directing the Taluk Board to accept Mr. Venkatesa Iyer as the president.

(2) That the District Judge acted with material irregularity, if not illegally, in adjudicating in Original Petition No. 47 of 1922 that Mr. Gounder's election as President was invalid on a ground not taken in that petition.

(3) That the District Judge acted in contravention of the plain provisions of the Rules relating to trial of election petitions by declaring, without inquiry into the allegations of corruption, etc., urged against Mr. Venkatesa Iyer, that the latter was validly elected as the president.

44. With these observations I shall proceed to consider the next question that has been argued before us, namely, are we justified in interfering with, the orders of the District Judge in the exercise of our revisional powers Section 115, Civil Procedure Code, is in the following terms:

The High Court may pall for the record of any case which has been decided by any Court Subordinate to such High Court find in which no appeal lies thereto, and if such Subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.

45. There can be no doubt that the District Judge acted with, material irregularity under Clause (c) above in setting aside the election of Mr. Ramaswami Grounder in Original Petition No. 51 of 1922 on a ground not taken in the petition and in declaring Mr. Venkatesa Iyer to have been duly elected in contravention of the Rules pertaining to the conduct of election petitions. Even if the words 'with material irregularity' should be held to refer to faults of procedure as held by Jenkins, C.J., in Shew Prosad Bungshidhur v. Ramchunder Haribux I.L.R. (1914) Calc. 323 and the word 'procedure' should be understood in the language of Rankin, J., in Hindley v. Joynarain Marwari I.L.R. (1919) Calc. 962. in the restricted sense of 'method of conducting a case,' still, the irregularity committed by the District Judge would amount to 'material irregularity' within, Section 115, Clause (e).

46. As regards the portion of the order of the District Judge which proceeds upon a misconstruction of the provisions of the Local Boards Act including the transitory provisions I am also of the opinion that we have power to deal with it under either Clause (a) or Clause (c) of Section 115. In regard to the scope of these Clauses there has been an almost irreconcilable divergence of judicial opinion. I may instance the cases of Sheoraj Nandan Singh v. Gopal Swan Narain Singh I.L.R. (1891) Calc. 290 and Shew Prasad Bungshidhur v. Ramchunder Haribux I.L.R. (1914) Calc. 323. In the former a certain property was attached in the hands of the petitioner before the High Court on the ground that he had become a trustee for the judgment-debtor by virtue of a certain alleged agreement. The petitioner preferred a claim and the Subordinate Judge rejected it and he thereupon applied to the High Court to set aside the order of the Subordinate Judge. It was contended on behalf of the decree-holder that the order of the Subordinate Judge was not made without jurisdiction. The ground of the decision of the Subordinate Judge was that the petitioner had agreed to pay the decree-debt by the document which transferred the property to him and in consequence thereof he became a trustee of the property for the judgment-debtor and therefore the property was liable to attachment in the petitioner's hands. It will thus be seen that the Subordinate Judge in disallowing the claim proceeded upon a wrong view of the law. The High Court (Sir Comer Petheram, C.J., and Amir Ali, J.), however held that they had power to interfere with this order in revision. In the latter, that is in Shew Prosad Bungshidhur v. Ramchunder Haribux I.L.R. (1914) Calc. 328. an application under Section 41 of the Presidency Small Cause Courts Act for the recovery of possession of certain immoveable property was refused by the Presidency Small Cause Court on the ground that the relationship of landlord and tenant had not been established. Fletcher, J., to whom an application was made by the landlord under Section 115 of the Civil Procedure Code, to set aside the judgment of the Small Cause Court, holding that

it is quite impossible to understand what the learned Judge (of the Small Cause Court) means when he says that the plaintiff is not entitled to evict the defendant, because the lease to the plaintiff does not contain a covenant authorizing him to do so,

interfered with the judgment in question and directed that it should be set aside. On appeal from the judgment of Fletcher, J., Jenkins, C.J., and Woodroffe, J., came to the conclusion that the exercise of revisional powers on the part of the High Court was not justified as the Small Cause Court was entitled to come to the' conclusion to which it did, even though the conclusion was erroneous and if it did come to that conclusion it could not be said that the Court had failed to exercise the jurisdiction vested in it by law.

47. It may be interesting to note that in the former of the two cases referred to above, that is, Sheoraj Nandan v. Gopal Suran Narain Singh I.L.R. (1891) Calc. 290. Petheram, C.J., and Amir Ali, J., while being in agreement as regards the decision to be given in the case, differ in respect of the grounds upon which their respective decisions were based. Petheram, C.J., says:

It seems to us that the Subordinate Judge was acting beyond his jurisdiction in directing that this property which belongs to a person other than the judgment-debtor should be B attached and sold

thus acting under Clause (a) of Section 115 whereas Amir Ali, J., acts under Clause (c) for he observes:

I am clearly of opinion that the lower Court has acted illegally and with material irregularity in the exercise of its jurisdiction in directing execution to issue against the properties held by the petitioner.

48. A mere error of law does not justify interference in revision for, as observed in Amir Hassan Khan v. Sheo Baksh Singh I.L.R. (1885) Calc. 6 a Court may have jurisdiction to make an order which in fact or in law is wrong. But no Court can act illegally, although it is very difficult to say when merely an error of law has been committed or when the Court has acted illegally. There being as I observed a conflict of opinion in the statement of the principles on this subject it seems to me that I may usefully examine the facts of some of the cases binding upon us with reference to the decisions given in those cases. In Manisha Eradi v. Siyali Koya I.L.R. (1888) Mad. 220 the Court consisting of five Judges unanimously came to the conclusion that the High Court had power in revision to set aside the decree of a Small Cause Court which had jurisdiction to entertain suits for rent only where the claim is founded on a contract when it erroneously assumed that a subtenant by entering on lease became liable by an implied contract to pay the rent and passed on that footing a decree against the sub-tenant. In Bala Krishna Udayar v. Vasudeva Ayyar I.L.R. (1917) Mad. 798. this question had to be considered. The facts were as follows: Under Section 10 of the Religious Endowments Act if a vacancy occurring among the members of the committee is not filled up by election within three months after it has occurred, the civil Court may appoint a person to fill up the vacancy or may order that the vacancy be filled up by the remaining members of the committee. After the period of three months mentioned in the Section was over, in pursuance of an order made by the District Court an election was held by the remaining members of the committee, a certain person was declared duly elected and the District Judge accepted him as a member of the committee on the ground that upon the true construction of Section 10 the remaining members of the committee should hold an election and the vacancy should be filled up in that way. The Privy Council agreeing with the High Court held that this construction of the Section was wrong, that it was not competent to the remaining members to fill up the vacancy by means of an election and that the terms of the Section did not warrant the course adopted by the District Judge. It will be noticed that the District Judge had jurisdiction in the ordinary sense, that is a jurisdiction, local, pecuniary personal or with reference to the subject-matter of the suit [see the judgment of Woodroffe, J., in Sheo Prosad Bungshidhur v. Ram Chunder Haribux I.L.R. (1914) Calc. 328. If the jurisdiction therefore means merely propriety of forum, the District Judge had certainly jurisdiction to deal with the matter that arose before him under the Religious Endowments Act. But as their Lordships of the Privy Council set aside the order of the District Judge as made without jurisdiction, it cannot be said that they were using the word l' jurisdiction' in the narrower sense referred to above. The same question again arose for decision in Sundaram v. Mausa Mavuthar I.L.R. (1921) Mad. 554. The lower Courts held that a judgment-debtor, who after the Court sale, had transferred his interest in the property sold in execution of a decree, had no locus standi to apply under Order XXI, Rule 89, and rejected his application. Against this decision the judgment-debtor filed a revision petition to the High Court. The Full Bench held that the judgment-debtor retained sufficient interest to entitle him to apply under the Rule. In regard to the point whether any question of jurisdiction was involved, they answer the reference in the affirmative, following Balakrishna Udayar v. Vasudeva Ayyar I. L. R. (1917) Mad. 793.

49. In the above cases referred to by me the error of law committed by the lower Courts was held to have affected their jurisdiction. On the authority of these decisions the proper conclusion in my opinion seems to be that the order of the District Judge made in Original Petition No. 51 of 1922 also comes within the scope of Section 115 of the Civil Procedure Code.

50. It has next been argued before us on behalf of Mr. Venkatesa Iyer that the District Judge exercised his powers under the Act not as a Court of law but merely as a persona designata whose decisions are not to be treated as the judgments of a legal tribunal and the High Court cannot therefore interfere with the orders of the District Judge in revision. Whether the District Judge is a Court or not must be determined on a consideration of the language of the various provisions which define his powers, his duties and the procedure to be followed by him. The presumption is, when any easting tribunal is given a right to determine certain matters, that tribunal is to determine such matters as a Court. The party who contends that the matters referred to the tribunal were not referred to it as a Court of law must make good that position by referring to the various Sections which establish that his contention is correct. This point was expressly decided by the House of Lords in National Telephone Company, Limited v. Postmaster-General [1913] A.C. 546. Lord Parker of Waddington observes that where by a Statute matters are referred to the determination of a Court with no further provision the necessary implication is that the Court will determine the matters as a Court. It is pointed out in the judgments that the jurisdiction of such a tribunal is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.

51. Balakrishna Udayar v. Vasudeva Ayyar I. L. R. (1917) Mad. 793 to which I referred above in another connexion is also an authority upon this point. It was contended in that case that the order of the District Judge which was under consideration was not a judicial but merely an administrative or ministerial act. That contention was based upon an argument that the civil Court exercised its powers not as a Court of law but merely as a persona designata. Their Lordships of the Privy Council after examining the language of the various Sections of the Religious Endowments Act overruled that contention. The decision of the Privy Council affirms the judgment of the High Court in the same case reported in Vasudeva Ayyar v. The Negapatam Devastanam Committee I.L.R. (1915) Mad. 594. Sir Arnold White, C.J., in dealing with this question refers to certain Sections of the Religious Endowments Act and arrives at the conclusion that in regard to those Sections the District Judge undoubtedly exercises judicial functions as a civil Court and not as a persona designata and he then observes:

It seems to me it would be inconvenient if for certain purposes the District Judge is a civil court exercising judicial functions under the Act and for other purposes under the Act is a persona designata not exercising judicial functions.

52. These observations apply with great force to the present case. No doubt an application may be made to the District Judge under Section 57 for an inquiry in respect of the allegations of disqualification arising under Section 55 or 56. But this is merely an enabling provision, because the right of the applicant to call in question an election on any of the grounds specified in Sections 55 and 56 by an election petition under the Rules remains unaffected. The first Rule runs as follows:

Save as provided in Section 57 of the Madras Local Boards Act, 1920, no election held . . . shall be called in question except by an election petition presented in accordance with these Rules.

53. The result is that the party considering himself aggrieved may at his option, apply under Section 57 or present an election petition. If in dealing with an election petition the District Judge acts as a Court and not as a -persona designata, it would be indeed very inconvenient in the words of Sir Arnold White, C.J., if for certain purposes the District Judge is a Court and for certain other purposes he is a persona designata. The indications are perfectly clear that when dealing with election petitions he acts as a Court and if this position is correct, in my opinion, it follows that he acts as a Court even when he deals with applications under Section 58. The Rules provide that a petition if presented to the District or Subordinate Judge having jurisdiction, shall be signed and verified in the manner prescribed in the Code of Civil Procedure. If the provisions are not complied with, it is the District or the Subordinate Judge that is to dismiss the petition. It is further provided that the District or Subordinate Judge may direct any Court subordinate to him to hold an inquiry. Rule b' provides that every election petition shall be inquired into as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. It is also provided that at an inquiry, the local board concerned may appoint a legal practitioner to attend the inquiry and take such part therein as the inquiring authority may allow. I think what I have stated is sufficient to show that the legislature intended that the District Judge should determine questions referred to him in his capacity as a Court.

54. The cases cited for the respondent do not have much bearing on the matter as they turn upon the language of other Acts, but I may observe in regard to Vijiaraghavalu Pillai v. Theagaroya Chetti I.L.R. (1915) Mad. 581. on which reliance was placed that it was decided before the decision by the Privy Council reported in Balakrishna Udayar v. Vasudeva Ayyar I.L.R. (1917) Mad. 793. The decision of the High Court which was then under appeal to the Privy Council was cited to the learned Judges and in their judgment they state that they were informed that that decision was under appeal to his Majesty in Council. I therefore hold that the District Judge was acting as a Court and not as a persona designata and that his decisions can be revised by the High Court in the exercise of its powers of revision.

55. There remains one more argument to be dealt with. On behalf of the respondent, it was argued that under Rule 12 (3) of the Rules made for the conduct of election inquiries, as well as under Section 57(2) of the Act, the decision of the District Judge or other inquiring authority is said to be final, and that therefore the decisions in questions are not open to revision. In Matangini Debi v. Girish Chunder Chongdar I.L.R. (1903) Calc. 619 it was pointed out that when a section says that a certain order shall be final it only means and intends that it shall not be open to appeal and that the intention is not to make the order absolutely final so as to make it not open to revision. Observations to a similar effect occur also in the judgment in Valli Ammal. v. The Corporation of Madras I.L.R. (1915) Mad. 41. I reject the contention and hold that the orders of the District Judge are liable to be revised by the High Court.

56. For these reasons I agree in the conclusions arrived at and in the orders proposed by my learned brother.


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