1. These two appeals arise out of two orders passed by the Subordinate Judge, Chital drug who is the Election Commissioner for the area concerned. On applications filed before him, by the Respondents in these two appeals, he set aside the declaration of the Returning Officer whereby the Appellants had been declared duly elected to the Nayakanahatti Town Municipal Council from the first and eleventh division respectively. The difference between them and the Respondents was only one vote in the first case and four votes in the second. In the applications before the Election Commissioner the Respondents complained that this difference represented the votes of certain persons who were not qualified to vote under Section 12 of the Mysore Town Municipalities Act, which governs the elections.
Under that section the voters must have attained the age of 21 years in the official year preceding that in which the election roll is published before they can have their names included in the voters list. The Election Commissioner found that 4 voters in one case and one voter in the other were less than 21 years of age at the relevant time and that if those votes were excluded from computation, the Appellant in Mis. A. No. 34/1953 would fail as the Respondent would be found to have one vote in excess. In Mis. A. No. 33/1953 he found that they would be polling an equal number of votes. He therefore drew lots and declared the Respondent in that appeal as having succeeded as a result of such drawing.
2. It is contended by Mr. Krishnamurthi, learned Counsel for the Appellants that the applications challenging the election were made in these cases after the expiry of 10 days provided in Section 20, Mysore Town Municipalities Act. The result of the election was declared on 23-3-1952 and the applications were filed on 12-5-1952 when the Civil Courts in the State were reopened after the summer vacation which commenced that year on 1-4-1952. The Election Commissioner has found that the applications were saved from the bar of limitation on account of Section 4, Limitation Act.
It is urged by Mr. Krishnamurthi that the learned Election Commissioner was really a 'persona designata' though it happens that he is a Subordinate Judge in a Civil Court and that as in the present case ho happens also to be the First Class Magistrate of the station and was present in that area during the concerned period, the Respondents could not say that they could not have presented their applications to him within time. He has relied on - '3 Mys LJ 253 (A)'; - '8 Mys. LJ 281 (B)'; - 'Abdul Azeez v. Basheer Ahmed', 13 Mys LJ 116 (C)', where no doubt it has been held that the Election Commissioner was a 'persona designata' for the purpose of determining the elections concerned under Municipal Acts. Those cases were, however, concerned with the question whether appeals or revisions lay to this Court in accordance with the Code of Civil Procedure from his orders. Those cases cannot obviously have much bearing on the question before us.
3. Section 4, Limitation Act provides that where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed the same may be made on the day when the Court re-opens. 'Prima facie' no doubt the reference is to a Court & whether the Election Commissioner is a Court is a matter for consideration. If the Subordinate Judge of the concerned area has been appointed Election commissioner it is difficult to see why he should not be deemed a Court for that purpose. It is provided by the same section that the Code of Civil Procedure shall as far as possible be followed in the enquiries before him.
It is not disputed that there was no office of the Election Commissioner as such open at the concerned time for such applications being lodged. The applications were to be accompanied by a deposit of Rs. 50/- and there was no arrangement made for the receipt of that, money by him or in his office during the period of the summer vacation. Moreover under Section 30, General Clauses Act where any act or proceeding is directed or allowed to be done or taken in any Court or 'office' on a certain day or within a prescribed period, then, if the Court or 'office' is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. We mink that that section if not Section 4, Limitation Act clearly operates to save the present applications from being barred by time and we agree with the learned Subordinate Judge that they were in time.
4. Mr. Krishnamurthi next contends that the learned Election Commissioner was not justified in going behind the entry in the Electoral Roll and examining the eligibility of the person included therein to vote on the basis of the age mentioned therein. Under Rule 5 of the Mysore Town Municipal Election Rules framed under Section 13(1) and Section 208 (2) (b), Mysore Town Municipalities Act the Electoral Roll shall contain the 'age' of each elector in addition to other qualifications such as his name, the name of his or her father or husband as the case may be, the sex of the elector and the number of the house at which he resides. Elaborate provisions are contained in Clauses 6 to 9 for the publication of the preliminary Electoral Roll, the lodging of claims and objections and to the enquiry into them by the Returning Officer & his amending the Electoral Roll in accordance with his decision.
Under Rule 10 the orders passed by the Returning Officer under Rules 8 and 9 are declared to be final and the final Electoral Roll is to be published under Rule 11. Under Section 13(2), Mysore Town Municipalities Act at every election of Councillors every person enrolled in the Municipal Electoral Roll as for the time being in operation under Sub-section. (1) shall be deemed to be entitled to vote and every person not so enrolled shall be deemed to be not entitled to vote. Mr. Krishnamurthi has referred to a case in - 'Commr. of Income Tax, Bombay v. Bombay Trust Corporation Ltd.' , where interpreting the words 'deemed to be' in the Indian Income-tax Act their Lordships of the Privy Council have observed that where a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something, an act of Parliament requires him to be treated as if he were. The Appellant is also supported in his contention by a case reported in - 'Vaidyanatha Thevar v. Murugiahan Chettiar' : AIR1928Mad1077 .
In that case which related to an election under the Madras Local Boards Act it was pointed out by Devadoss J. that the question whether a person was a member entitled to vote or not was to be determined by proper proceedings under Section 57. When that course was not adopted, it was not open to a Court which holds an election enquiry to go into the question which might and ought to have been determined before a different forum. Section 57 prescribed the forum for the determination of such question and in the absence of an enquiry under that section the Court which holds on election enquiry must accept the persons who act as members.
He has further pointed out that the object of the election rules both under the District Municipalities Act as well as under the Local Boards Act was to avoid a defeated candidate from raising questions as to the qualifications of voters whose names were on the roll of voters and the Court was not permitted to embark upon an enquiry on questions which could have been and ought to have been decided before the final electoral roll was prepared. He thought that it was opposed to all principles to allow one of the candidates to raise an objection to the qualifications of the members when he could nave done so before and it was nothing but putting a premium upon pettifogging to allow a defeated candidate to raise such an objection when he finds that the members whose qualification he could have questioned before but whom he expected to vote for him did not vote for him but for the other candidate. We are entirely in agreement with those observations.
5. We think the policy of the Legislature and the rule making authority in framing the Act and the Rules thereunder as well as the entire scheme of elections is clearly opposed to allowing questions being raised before the Election Commissioner with regard to such contents of the Electoral Roll. If it is permitted the Election Commissioner would have to hold an elaborate enquiry, by examining witnesses and adopting the procedure prescribed by the Code of Civil Procedure, about the name of the elector or his father or his sex or ago or even the number of the house in which he resides. That could never have been the intention of the Legislature and there is nothing either in the Act or in the Rules which compels us to adopt such a course. In this Court a similar view has been taken in - 'Mis. A. No. 4S of 1946-47 (F).
In that case the Court was dealing with elections to the Representative Assembly and one of the questions that arose for consideration was whether it was open to the Election Commissioner to go behind the electoral roll & ascertain whether the appellant had the necessary property qualification to be a voter in order to find out whether the notice of candidature of the appellant had been properly accepted. It was held that it was not open to the Returning Officer or the Election Commissioner to do so. Their Lordships were considering in that case Rule 9, Representative Assembly Rules which provided that there shall be an electoral roll for every constituency and that no person who is not, and, except as expressly provided by these rules, every person who is, for the time being included in the doctoral roll for any such constituency shall be entitled to vote in that constituency; and Sub-rule (2) of Rule 76 which made the decision of the Revising Authority final. They also considered in that connection a case reported in 'Hammond's Election Cases for India and Burma at page 165 (Bhagalpur North case)' and quoted with approval an observation in that case that 'if in the opinion of the Commissioner the result of the election has been materially affected by any non-compliance with the provisions of the Act or the rules and regulations made thereunder, the election of the returned candidate shall be void. But the jurisdiction thereby granted is necessarily limited by the definite provisions of Rule 9(3) regarding the finality of the order of the revising officer, and we are satisfied that under this rule we are precluded from enquiring into the question of the respondent's possession of the necessary qualifications as a voter. We are confirmed in this view by the conviction that the Legislature cannot have contemplated the provision of the cumbrous and elaborate procedure of an election commission to determine simple questions of fact concerning the possession of such qualifications.' In the light of the interpretation of the words 'deemed to be' by the Privy Council and the wording of Section 13(2), Mysore Town Municipalities Act, the case for the Appellant is, in our opinion, even much stronger than in that case.
6. Mr. Nittoor Sreenivasa Rao has referred to a passage at page 33 in Nanak Chand Pandit's Law of Elections and Election Petitions in India 1951 Edn., where reference is made to -- 'Nawab Sir K.G.M. Faroqui v. M. Habibulla Bahar Chaudhury and others', a case connected with the Bengal Legislative Assembly Constituency. In that case it seems to have been held, distinguishing an earlier case, that the Election Tribunal can go behind the Electoral Boll to ascertain the possession of the actual qualifications by a candidate for entry on the Roll, but the Returning Officer cannot go behind the Electoral Roll.
Further on, it is stated that in the Hooghly North-East General Rural Constituency, 1946, --'Mohan Lal Mandal v. Radhanath Das and others', the Tribunal tried to distinguish the 'Bengal Legislative Assembly 1944 case' referred to above and held that the Election Tribunal has no jurisdiction to go behind the Electoral Roll where the disqualification of the voter is not of a personal nature. The members of that Tribunal relied on two English Cases, viz. -- 'Pembroke Borough case', (1901) 5 O'M & H 135 CG) and -- 'Stowe v. Jolliffe' (1874) 9 L R C P 734 (H). The author has then stated as his conclusion that the correct view is as stated above that the Election Court is entitled to find out whether the statutory disqualifications which bar a person from standing as a candidate from any of the Legislatures exist in a particular case or not.
7. In -- 'Stowe v. Jolliffe (H)', it has been held that the electoral roll is conclusive not only on the Returning Officer but also on every tribunal which has to enquire into elections, except only in the case of persons prohibited from voting by any statute or by the common law of parliament, i.e., persons who from some inherent or for the time, irremovable quality in themselves have not, either by prohibition of statutes or at common law, the status of parliamentary electors, such as peers, women, persons holding certain offices or employment under the Crown, persons convicted of crimes which disqualify or the like. This case has been followed in -- 'Pembroke Boroughs Case (G)', where Darling J. has observed at pages 137 and 133:
'And when you say that the Register is conclusive.. ....what you mean is this, that it is conclusive that the people who are on it have the qualification which entitles them to be there.'
The views of this Court in -- 'Mis. A. No. 46 of 1946-47 (F)' and of Devadoss J. in -- ' : AIR1928Mad1077 ' are to the same effect.
8. In the light of this discussion the learnedElection Commissioner was, in our opinion, wrongin going into the question of the age of the votersand reversing the result of the election on thebasis of his finding on that point. We, therefore,allow these appeals, set aside the orders of theElection Commissioner and declare that the Appellants were duly elected. The Appellants willhave their costs from the respondents both hereand in the Court below (Advocate's fee in thisCourt Rs 25/- in each case).
9. Appeals allowed.