Murray Coutts Trotter, Kt., C.J.
1. The facts of this case are fully set out in the referring judgment of Mr. Justice Pakenham Walsh. The question is whether a disqualification on nomination on the ground that at the time of nomination the petitioner was an Honorary Magistrate of the Saidapet Bench Court and tints disqualified under Section 49(2)(iv) of the Madras District Municipalities Act of 1920 forms a ground for an election petition or can only be dealt with under Section 51. My view of Section 51 is that it can only apply where there has been an election of the candidate as a councillor which is apparently valid on the face of it. In my view it cannot apply to the inchoate stage of nomination which has not resulted in at least something which purports to be an election. Moreover, so far as I can see, no person except a councillor could take action before the District Judge against the person suggested to be disqualified. I see no option but to come to the conclusion that this cumbrous machinery leaves the result that an election petition is open to those entitled to launch it in order to raise this ground of disqualification.
The short question for decision here is whether an elector in an election held under the Madras District Municipalities Act of 1920 can, in an election petition before (he Subordinate Judge or District Judge, urge, as a ground for setting aside the election, that the elected candidate was disqualified under Section 49 or Section 50 of the Act, or can this matter be moved only by a councillor or by the Chairman under Section 51 and before the District Judge alone.
2. As usual, the Act fails to indicate clearly the answer to be given. The wording of Section 51 is unhappy. It is not said who are the persons who may allege that the elected councillor is disqualified or in what form or manner the allegation is to be made, or how or when the person challenged is called on to admit or not to admit the allegation. Again, the present tense 'is disqualified' in Sub-section (1) cannot be aptly used of Section 49 since it refers to the present state of the councillor who has been elected, whereas Section 49 refers to his prior state on the date of the nomination, election or appointment. The same remark applies to the use of the same term in Sub-section (2). It is also not clear what differentiation, if any, is intended between 'is disqualified' in reference to an allegation by outsiders and 'has become disqualified' in reference to the doubts of the councillor. Are the doubts of a councillor remediable in law only when they relate to a period after his election and not when they relate to the period of nomination or actual election? However, the general sense of the section seems to be that when any question arises whether a person elected as councillor was disqualified under Section 49 at the time of nomination or election or has since the election become disqualified under Section 50, the matter should be moved before the District judge by a Councillor or the Chairman. The question is whether that section is exhaustive so that the ordinary voter, when the election has resulted in the election of a candidate whom he regards as disqualified, cannot agitate that matter in an election petition. It would seem strange if he could not and unless the Act and rules make it abundantly clear that he cannot, I should hold that no such prohibition exists.
3. The general rules as to election petitions are passed under the rule-making power given under Section 303(b), and any rules therein which deal with matters not expressly prohibited by the Act will be intra vires. Obviously the Act does not expressly prohibit an elector raising in an election petition the matter of the disqualification of a candidate since the Act does not even mention an. election petition at all. So we have to see whether the rules allow such a point to be raised in an election petition. Such a petition apparently can raise any point whatever, but the election will not be set aside thereupon unless in the opinion of the Judge hearing it one of the matters set out in Rule 11 is proved. The only part of Rule 11 which can apply to the present case is Rule 11(c). I am not prepared to hold (hat the existence of a disqualification under Section 49 at the time of nomination is an 'irregularity in respect of a nomination paper' within the meaning of that rule. So that the question is whether it amounts to a 'non-compliance with the provisions of the Act or the rules made thereunder.'
4. I think it may fairly be brought under the former category since, as I read Sections 48 to 50, the Act prescribes that persons who suffer under the disqualifications mentioned in those Sections shall not he councillors. I would therefore hold that the election of a person disqualified under Sections 48 to 50 is contrary to the provisions of the Act. Now Section 48 is not mentioned in Section 51. If therefore Section 51 is the only section by virtue of which the absence of qualification or the existence of disqualification in an elected candidate can be attacked, there is no provision for preventing the election of a person who is unqualified under Section 48 except the scrutiny of the Chairman at the time of the nomination (see Rules 4(2)(1) of the rules for the conduct of elections). Such a scrutiny is also considered a necessary protection in a case under Section 49 to which the same rule applies. It is reasonable to hold that the electorate should have the right to challenge the qualification of an elected candidate whenever the candidate is disqualified by any of the three Sections 48 to 50.
5. The main argument on the other side is that which has been emphasized in the order of reference, namely, that to allow this matter to be agitated before an Election Petition Court, which may be the Court of a Subordinate Judge, may lead to a conflict of decisions; for instance, the Subordinate Judge may bold on an election petition that the candidate was disqualified while the District Judge on a petition under Section 51 may hold that he was not, or vice versa. But I do not think any real conflict will occur if Section 51 is used as it evidently was intended to be used. I think it applies to cases where the election has gone through without challenge and something has occurred thereafter which raises doubt about the qualification of some sitting councillor. The Election Court decides whether or not there has been a proper election of a properly qualified candidate and its decision on that point is final. The District Judge under Section 51 decides, where an election has not been challenged and has stood, whether subsequent doubts as to the qualification of any councillors are justified and his decision on that point is final.
6. I would therefore answer to the reference that the matter of disqualification of an elected candidate can be raised in an election petition before the Election Court.
Anantakrishna Aiyar, J.
The point referred to the opinion of the Full Bench is:
Can a disqualification under Section 49 or section SO, of an elected candidate, be a ground for a petition impugning the election under Rule 1 and Rule 11(c) of the rules for the decision of disputes as to the validity of an election held under the Madras Municipalities Act of 1920, or is the remedy confined to that prescribed in Section 51 and Section 314 of the said Act.
7. The judgment of Mr. Justice Devadoss in Mangola Goundar v. Ayyathorai Mudaliar (1927) 55 M.L.J. 632 contains a full discussion of the question. The arguments for and against the view adopted by Mr. Justice Devadoss in the above case have been fully set out in the order of Mr. Justice Walsh which gave rise to this reference.
8. The first question is, what exactly is the scope of what is termed 'election' in the District Municipalities Act and the rules framed thereunder. In Wharton's Law Lexicon, page 312, the first meaning given to the word 'election' is 'the act of selecting one or more from a greater number for an office.' In Stroude's Judicial Dictionary, Volume II, page 609, it is stated as follows: 'In Local Government Act of 1894 election includes both the Nomination and the Poll (Section 75).' I think that in the Madras District Municipalities Act also 'election' should be taken to include both the Nomination and the Poll. Though a restricted view of the meaning of the word 'election' was taken in some cases, I think that the view that 'election' includes both Nomination and the Poll was the view adopted by a larger number of learned Judges in this Court, as seen from the cases cited in the judgment of Walsh, J. Notwithstanding the use of the words 'Nomination' and 'Election' in Section 49, Clause (2) of the Act, and speaking with all respect, I think that the latter is the correct view to take. The rules framed for conduct of elections of Municipal Councillors assume that nomination of candidates is included in the election.
9. The next, question to be considered is: What is the procedure to be adopted when a candidate is disqualified under Section 49 of the Act. It was argued that the remedy in such a case is that prescribed by Section 51 of the Act. I am not able to accept this contention. ' Reading Section 51, it seems to me that it applies only to a stage after a candidate has been duly elected or appointed. The use of the words 'is disqualified' in the section seems to me to support this view. Sub-Section (1) of Section 51 runs as follows:
Whenever it is alleged that any person who has been elected or appointed as a councillor is disqualified under Section 49 or section SO and such a person does not admit the allegations, or whenever any councillor is himself in doubt whether or not he has become disqualified for office etc. etc.
10. The expressions 'is disqualified' and 'has become disqualified' occurring in the section seem to me to postulate a case where a person has validly become a councillor either by means of a proper and regular election or by a proper appointment; and they seem to provide only for cases where a person has been validly and properly elected or appointed as a councillor, but where a question is raised that owing to the present existence in him of particular disqualification, he should cease to be a councillor.
11. If the above view be correct, then Section 51 could not apply to a stage prior to such person having become a councillor; it cannot apply to the stage of 'Nomination' of candidates, and dispute about the disqualification of a candidate who has been 'nominated.'
12. Again the remedy provided by Section 51 could be availed of only by a councillor; it is not open, under that section, to any voter or candidate to take action or move the District Judge.
13. The further question then arises whether voters or rival candidates are entitled to take any proceedings in Court against a nominated candidate on the ground of his labouring under a disqualification mentioned in Section 49 of the Act. It seems to me that an 'election petition' could be presented against the returned candidate, under Rule 1 of the rules for the decision of disputes as to the validity of an election, framed under the District Municipalities Act. Under Rule 11, it is open to the Judge inquiring into the matter to declare that the election of the returned candidate is void, if he is satisfied under Clause (c) that 'the result of the election has been materially affected by any non-compliance with the provisions of the Act or the rules made thereunder.' In the face of the provisions of Section 49, that a person shall be disqualified for election as a Municipal Councillor if such person is, at the date of the nomination, labouring under any of the disqualifications mentioned in the section, and in spite of the existence of such disqualification, if a candidate is nominated and subsequently declared elected, then the Judge passing orders on the election petition is entitled to declare the election of the candidate to be void, being contrary to the provisions of Section 49 of the Act. The decision of the Full Bench in Gopula Aiyangar v. Ibrahim Rowther : (1925)49MLJ606 evidently proceeded on such an assumption. Otherwise the voters or the rival candidates would be without any real remedy, and in my view it is not a proper answer to say that it is open (1) to a Councillor to take action under Section 51 of the Act, and (2) to the Chairman in charge of the nomination proceedings to solicit orders from the Government. It is clear that a rival candidate who would be entitled to be declared elected if the returned candidate be held to be disqualified under Section 49 of the Act could not have his proper rights secured to him, unless such a matter could be inquired into by means of an 'election petition'. I am not satisfied with the argument advanced in support of the other view, namely, that though rights are created in voters and rival candidates, yet it should be taken that the legislature took the view that because remedies are made available to Councillors, therefore it could not be said that injustice is done to voters or rival candidates. If the rules permit of such an interpretation, I think we should construe the rules as providing for the enforcement by persons themselves of rights conferred on them by Statutes. The policy generally adopted in such cases seems to be to have such disputes decided by means of an 'election petition,' and I think the rules on a proper construction bear out that view.
14. In this view, there would be no conflict of jurisdictions, nor would there be cases of existence of bare rights in persons but without there being available to them any remedies to enforce the same.
15. My answer to the question is that a disqualification under Section 49 could be made a ground for a petition impugning the election under Rule 1 and Rule 11(c) of the rules for the decision of disputes as to the validity of an election held under the Madras District Municipalities Act of 1920.