1. This is an application under Section 115 of the Civil Procedure Code for revising the order of the Subordinate Judge of Dindigul, setting aside the election of the petitioner as Councillor of the Palani Municipality.
2. The facts are: The petitioner and the respondents contested the seat for the first ward in the Palani Municipality at the election held on 10th September, 1926. The petitioner came up, at the top of the poll and was declared elected. The 1st respondent filed a petition before the Subordinate Judge of Dindigul objecting to the election of the petitioner on the ground that he was disqualified at the time of the election from standing as a candidate for the vacant councillorship as he was at the date of nomination and election the employer of a sitting Councillor, one Selva Dandapani Gurukkal. Several issues were raised and on the issue as to jurisdiction, the Subordinate Judge held that the Civil Court had no jurisdiction to go into the question of disqualification when once the Government passed an order under Rule 31 upholding the validity of the nomination on the specific ground alleged in the petition itself and made a few observations on the other issues and dismissed the petition. The 1st respondent applied to this Court in Ayyaithorai Mudaliar v. Mangola Goundar : AIR1927Mad971 for revising the order of the Subordinate Judge and a Bench consisting of Madhavan Nair and Curgenven, JJ., decided that
the Lower Court erred in holding that the decision of the Government under Rule 31 regarding the validity of 1st respondent's (petitioner herein) nomination was final or binding upon the Court in this case.
3. The learned Judges set aside the order of the Subordinate Judge and directed him to dispose of the petition on the merits. He has now held that Dandapani Gurukkal was a servant of the petitioner and the petitioner was, therefore, disqualified for election under Section 49, Clause (vi) of the District Municipalities Act, and his election was consequently void, and set aside the election of the petitioner and ordered a fresh election to be held.
4. The learned Advocate-General puts forward two contentions against the order of the Subordinate Judge. The first is that the election petition was incompetent, and the only way of unseating the petitioner was by a proceeding under Section 51 of the District Municipalities Act; and the second is that Selva Dandapani Gurukkal was not a servant of the petitioner.
5. In order to appreciate the contentions of the petitioner it is necessary to refer to a few of the sections of the District Municipalities Act, Chapter IV is headed 'Election and Appointment of Councillors.' Section 43 relates to the division of the Municipality into wards. Section 44 relates to the preparation and publication of the electoral roll. Section 45 lays down who are qualified to vote. Section 46 relates to the personal qualifications of voters and Section 47 to disqualifications of voters. Sections 48, 49, 50 and 51 are headed 'Qualifications for membership of Council.' Section 48 lays down who are qualified for election. Section 49 mentions all the disqualifications of candidates for election. Section 50 lays down the disqualification of Councillors. Section 51 indicates what steps should be taken for a declaration that a Councillor is not qualified to be a Councillor. One of the disqualifications of a candidate for election is that he is the servant or employer of a Councillor - Section 49(2)(vi).
6. Selva Dandapani Gurukkal is the hereditary Archaka of the Dandayudapani temple in Palani and the petitioner is a trustee of the temple. The duty of Dandapani Gurukkal is to perform the worship according to his turn or murai, which is once in 40 days, and he is remunerated by perquisites collected from the worshippers and he is also entitled to a share of the food offerings and certain emoluments. The duty of the petitioner as trustee is to manage the affairs of the temple and to see that the worship is performed according to the usage of the temple and that the temple property is conserved and not wasted. The contention of the learned Advocate-General is that the disqualification of a candidate under Section 49 cannot furnish a ground for an election petition, and if he is a disqualified candidate his nomination paper ought to have been rejected by the scrutinising officer before the election, and after the election has been held and after he has been declared elected the only remedy is by moving the District Judge under Section 51 of the Act. The contention of Mr. Sitarama Rao for the 1st respondent is that the election petition could be sustained on the ground of disqualification existing at the time of the election and it is not necessary that an application should be made under Section 51, and further that the 1st respondent being a defeated candidate he is entitled to agitate the question whether the petitioner is or is not a properly qualified person by an election petition; for, if he is a disqualified person, his election would be bad, and the respondent would be entitled to be declared elected, and still further, if the remedy under Section 51 is the only remedy, he would be without a remedy and the Legislature could not have intended such a result.
7. The Government have framed rules for the conduct of elections and for the decision of dispute U to the validity of an election. When a seat becomes vacant, not less than 20 days before the date fixed for the holding of the election the Chairman shall prepare and publish a notice in English and in the vernacular of the locality stating the number of persons to be elected and the wards for which they are to be elected and other details. Under Rule 2 the nomination of candidates shall be made in Form No. 1; Rule 2 (a) requires certain formalities to be gone through on the presentation of the nomination paper. Under Rule 3 the Chairman fixes a date for the scrutiny of the nomination papers. Under Rule 4 (1) the candidates, one election agent, one proposer and one seconder of each candidate and one other person duly authorised in writing by each candidate may attend at the time and place fixed for the scrutiny. Under Rule 4 (2) the Chairman shall then examine the nomination papers and decide all objections which may be made at the time to any nomination and may either on such objection or on his own motion after such summary enquiry if any, as he thinks necessar)?, reject any nomination on any of the following grounds: (1) that the candidate is ineligible for election under Sections 48 and 49 of the District Municipalities Act; (2) that the proposer or seconder is a person whose name is not registered on the electoral roll; and (3) that there has been any failure on the part of the candidate or his proposer or seconder to comply with any of the provisions of Rule 2. Under Sub-rule (3) he shall endorse his decision on the nomination paper. Under Rule 5 (a) the Chairman shall prepare a list of persons whose nominations have not been rejected and who have not withdrawn their candidature in Form III and publish it not later than 4 days before the date fixed for election. Rule 5 (b) says that the list shall describe the candidates as in their nomination papers and exhibit their names in alphabetical order.
8. In Rule 11 of the rules for the decision of disputes as to the validity of an election several grounds are set forth which on proof would invalidate the election. The clause upon which the 1st respondent relies is Clause (c) which says:
If the result of the election has been materially affected by any irregularity in respect of a nomination paper, or by the improper reception or refusal of a vote, or by any non-compliance with the provisions of the Act or the rules made thereunder, the election of the returned candidate shall be void.
9. The question is whether the disqualification of a candidate before election is one of the grounds covered by Clause (c). Before examining that, it is necessary to see whether Section 51 is a bar to the maintenance of an election petition on the ground of one of the disqualifications mentioned in Section 49 existing at the time of the election.
10. Section 51 reads as follows:
(1) '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' person does not admit the allegation, or whenever any Councillor is himself in doubt whether or not he has become disqualified for office, such Councillor, or any other Councillor may, and the Chairman, at the request of the Council, shall apply to the District Judge of the district in which the Municipality is situated.
(2). The said Judge, after making such inquiry as he deems necessary, shall determine whether or not such person is disqualified under Section 49 or Section 50, and his decision shall be final.
(3) Pending such decision the Councillor shall be deemed to be qualified.
11. This section provides what course should be adopted if a person disqualified under Section 49 is elected a Councillor. The, question is, when a special statute like the District Municipalities Act lays down a certain course to be pursued in the case of certain persons, is it open to the Court to hold that the ordinary remedy by way of an election petition is open notwithstanding the special remedy provided by the Act. The argument of Mr. Sita-rama Rao is that the special remedy is not open to the 1st respondent, the defeated candidate, and that he having suffered defeat is not to be deprived of the remedy at law by reason of anything contained in Section 51 and that Rule 11(c) of the rules for the decision of disputes as to the validity of election applies to the present case. The Municipalities are the creation of a special statute and the qualifications for the Councillorship are Laid down in the statute and the several disqualifications of candidates are set out seriatim in Section 49. If such disqualifications are overlooked at the time of the scrutiny the method of removing the Councillor is provided in Section 51. Clause (3) of Section 51 seems to exclude any other remedy, for, it says distinctly 'pending such decision the Councillor shall be deemed to be qualified.' The plain meaning of Clause (3) would exclude any other remedy, as no decision of any other tribunal in any other proceeding declaring the Councillor to be disqualified would have any force when the clause says he shall be deemed to be qualified unless and until the decision of the District Court is given against him. To allow another remedy to be pursued would result in conflicting decisions. If the District Judge were to hold on a reference by the petitioner or by another Councillor, or by the Chairman at the request of the Council that the Councillor was not disqualified at the time of the election, and if the Court which hears the election petition were to hold that the election was bad as the petitioner was disqualified to be a candidate at the time of the election, there would be two conflicting decisions and the question would be which should prevail. It is not right to impute to the Legislature the enactment of a statute which would give rise to conflicting decisions.
12. It is urged by the learned Advocate-General that the rules are framed under the rule-making power given to the Government under Section 303 of the District Municipalities Act and the rules framed under the Act cannot override the clear provisions of the Act and when there is a conflict between the rules and the Act, the Act might prevail. In the view I take of Clause (c) no such conflict exists, for I am of opinion that an election petition on the ground of disqualification of a candidate at the time of the election would not lie. Clause (c) says:
If the result of the election has been materially affected by any irregularity in respect of a nomination paper, or by the improper reception or refusal of a Vote, or by any non-compliance' with the provisions of the 'Act or the rules made thereunder, the election of the returned candidate shall be void.
13. Mr. Sitarama Rao contends that the clause 'affected by any irregularity in respect of a nomination paper' would cover the present case. It refers only to the irregularities in the nomination paper and not to the disqualification of the candidate. Under the rules as I have already mentioned, certain formalities have to be gone through before the nomination paper would be accepted and the candidate declared eligible to be elected. The irregularity mentioned therein is with respect to names, numbers and other particulars which the nomination paper should contain. The question of disqualification is a matter to be decided by the scrutinising officer, the Chairman. If the Chairman on hearing the objections declares that the nomination paper is accepted, the candidate whose nomination paper has been accepted is entitled to contest the election. If he accepts the nomination paper of a disqualified candidate any rival candidate has his remedy by appealing to the Government against the decision of the Chairman. After the nomination paper is accepted election is held. Rule 11 of the rules relating to the decision of disputes as to the validity of an election concerns itself only with the irregularities or illegalities that might be committed during the conduct of the election, and no mention is made of anything that might have happened previous to it. If it was the intention of the framers of the rules to make the disqualification of a candidate a ground for declaring his election invalid, I fail to see why they could not have put it as one of the grounds in Rule 11. On reading Rule 11 it is clear that it can only refer to what happens during the actual election itself. Therefore, the phrase 'non-compliance with the provisions of the Act' cannot refer to anything antecedent to the actual election itself, such as the disqualification of a candidate at the time of the election, but only to the conduct of the election during which any of the provisions of the Act or the rules thereunder may be violated. Section 314, which was not referred to by either side during the course of the argument, provides sufficient remedy against a disqualified member acting as Councillor; for it says:
If a member of the Council acts as such when disqualified under Section SO, he shall, on conviction, be punished with fine not exceeding two hundred rupees for every such offence.
14. The Legislature has provided sufficient safeguards against violation of any of the provisions of Sections 49 and 50, in other words against a disqualified member of the Council acting as a member. With regard to the irregularities under Rule 11(c) many things might be mentioned; the non-removal of a deceased candidate's name; the non-removal of the name of a candidate who has withdrawn; the wrong description of a candidate whose nomination paper has been accepted. All these things would be irregularities in respect of the nomination paper and the disqualification of a candidate cannot, by any stretch of imagination, be called an irregularity in respect of the nomination paper, and non-compliance with the provisions of the Act or the rules made thereunder can only mean non-compliance by the officer whose duty it is to fix the date of election, receive votes and act as polling or returning officer.
15. Granting for argument's sake that the disqualification of a candidate is one of the grounds covered by Rule 11, on a careful consideration of the scope of the District Municipalities Act and the provisions relating to the election and appointment of Councillors, I have no hesitation in holding that the proper and only remedy, in case a disqualified candidate is elected, is by a proceeding under Section 51. I am not at all impressed with the argument that the defeated candidate would be without a remedy if such an interpretation is put upon Section 51. The defeated candidate could very well request one of the Councillors to move the District Judge or induce the council to request the Chairman to move the District Judge; and, if neither an individual Councillor nor the Council as a body would move in the matter, still a third remedy is open to any member of the public against a disqualified Councillor sitting and voting as such, of laying information against him under Section 314.
16. As it is unnecessary to consider at length the case quoted on this point for I hold that the words of Section 51 negative any other remedy, I shall briefly refer to some of them. In Pasmoye v. Oszmldtwistle Urban District Council (1898) A.C. 387 the facts were that the plaintiff, a paper manufacturer and the owner and occupier of a factory, required the local authority called the Oswald-twistle Urban District Council pursuant to the Public Health Act of 1875 to cause to be made such sewers as may be necessary for effectually draining their district and in particular his premises and to give facilities for enabling him to carry into their sewers the liquids proceeding from his factory or manufacturing processes and the defendants refused to comply with such requirements. The plaintiff claimed a mandamus commanding the defendants to cause to be made such sewers as may be necessary for effectually draining their district and to give facilities for enabling the plaintiff to carry the liquids proceeding from his factory into the sewers under their control. Charles, J., before whom the case was tried, held that the plaintiff was entitled to a writ of mandamus under the Act of 1875 but that the only tribunal which could enforce a claim under the Act of 1875 was the County Court. The defendants appealed against the judgment for a mandamus, and the Court of. appeal entered judgment for the defendants dismissing the action with costs. The plaintiff appealed to the House of Lords and his appeal was dismissed. Lord Halsbury observed at page 394:
The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe v. Bridges (1831) I.B. and Ad. 847 at 859. He says where an Act creates an obligation and enforces the performance in a specified manner we take it to be a general rule that performance cannot be enforced in any other manner.... You must take your stand upon the statute in question, and the statute which creates the obligation is the statute to which one must look to see if there is a specified remedy contained in it. There is a specified remedy contained in it, which is an application to the proper Government department.
17. In Barraclough v. Brown (1897) A.C. 615 it was held that
where a statute gives a right to recover expenses in a Court of summary jurisdiction from a person who is not otherwise liable, there is no right to come to the High Court for a declaration that the applicant has a right to recover the expenses in 'a Court of summary jurisdiction; he can only take proceedings in the latter Court.
18. Lord Herschell observed at page 620:
I do not think the appellant can claim to recover by virtue of the statute and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right.
19. Lord Watson observed at page 622:
The right and the remedy are given uno flatu and the one cannot be dissociated from the other. By these words the. Legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable; and has therefore, by plain implication, enacted that no other Court has any authority to entertain or decide these matters.
20. The observation of Lord Watson applies with great force to the present case, for Section 51 (3) clearly says 'Pending such decision the Councillor shall be deemed to be qualified.' Parlhasaradhi Naidu v. Koteswara Rao I.L.R. (1923) M. 369 : 46 M.L.J. 201 is not a direct authority on the point. In that case a petition was filed objecting to the election of a person as President of the Narasaraopet Taluk Board. Sections 55 and 56 of the Local Boards Act corresponding to Sections 49 and 50 of the District Municipalities Act were under consideration in that case. The Full Bench held that the District Judge on an election petition could not go into the question whether a particular candidate was duly appointed as a member of the Board. Mr. Sitarama Rao urges that no objection was taken to the maintenance of the election petition itself and therefore it must be considered as an authority in his favour. I am unable to accept this argument. The question whether an election petition would lie or not on the ground of disqualification of a member was not put in issue in that case. The question was whether the District Judge was competent to go into the question of the validity of the appointment of a person as a member of the Taluk Board when his election as President was questioned. As observed by Waller, J.:
The Act, no doubt, provides that the President shall be elected from among the members of the Board, but that provision does not give the Judge jurisdiction on an election petition to consider whether the members have or have not been properly appointed. He cannot disqualify them save on grounds that are not applicable here.
21. The English cases quoted by Mr. Sitarama Rao do not help him, for, under the Municipal Corporation Act of 1882, 45 and 46 Vic. c. L, Section 87(c), the disqualification of a candidate is a ground for questioning the election. Clause (c) reads 'that the person whose election is questioned was at the time of the election disqualified.' Under the English election rules the returning officer is not empowered to reject a nomination paper on the ground that the candidate is disqualified. As there is no scrutiny of a nomination paper as here and as the nomination paper could not be rejected the disqualification of a candidate is made a ground for an election petition under Section 87(c). As I have already observed, if the framers of the rules for the decision of disputes as to the validity of elections wanted to make disqualification of a candidate at the time of the election a ground for an election petition, they could have said so in so many words having in view the English practice. It could not be said that the framers of the Madras Rules were unaware of the provisions of the English statute 45 and 46 Vic. c. L. Pritchard v. Mayor, etc., of Bangor (1888) 13 A.C. 241 does not help the 1st respondent. There it was held that the returning officer had no jurisdiction to determine the question of disqualification, the proper method for deciding that question being an election petition as provided in the Municipal Corporation Act of 1882, Section 87. Harford v. Linskey (1899) 1 Q.B. 852 has no application to the present case. Under the English Act an election could not be questioned except by an election petition. Here a candidate could be declared disqualified by the Chairman and his nomination paper rejected, and if the Chairman acts against the provisions of the Act the remedy is by appeal to Government. There may be other remedies, but it is unnecessary to consider in this case whether there are, or there are not, remedies against the action of the scrutinising officer, for any observation of mine would only be obiter as they are not now under consideration.
22. Gopala Aiyangar v. Ebrahim Rowther : (1925)49MLJ606 and Sarvothama Rao v. Chairman, Municipal Council, Saidapet : AIR1923Mad475 have no application to the present case, as the question of the maintainability of an election petition on the ground of disqualification was neither raised nor decided in those cases. Lakshminarasimha Somayagiyar v. Ramalingam Pillai : (1920)39MLJ319 does not touch the present question. In that case a suit was brought for a declaration that the election of the 2nd defendant to a seat on the Taluk Board of Shermadevi was illegal and invalid. S.K. Devasigamony v. M.R. Sethuratna Aiyar 87 Ind.Cas. 363 is strongly relied upon by Mr. Sitarama Rao as supporting his contention. In that case an ex officio member of a District Board, who had ceased to be such at the time, proposed another member of the Board to be the Vice-President of the Board. An objection was taken that the proposal was not legally made by a member of the Board; but it was overruled and the person proposed got the largest number of votes. An election petition was filed against the successful candidate in the Court of the Subordinate Judge of Trichinopoly. Against' the order of the Subordinate Judge a petition was filed in this Court under Section 115.
23. in disposing of the case made the following observation:
I, therefore, decide that the validity of the vote of Mr. Pethachi Chettiar can be and ought to be decided in this election petition.
24. With very great respect I am unable to agree with him. Diwan Bahadur Pethachi Chettiar, it was alleged, had ceased to be a member before he made the proposal. The election Court can only go into the question of the regularity or otherwise of the election after the nomination had been accepted. The question whether the proposer was a member who was qualified to propose and the objection which was overruled by the Chairman or President could not be gone into in an election petition. As I have already observed, where the statute itself gives a remedy for an infraction of any of its provisions it is not open to the Court to hold that another remedy not specifically provided for is open. In this connection I may refer to the observation of Lord Shaw of Dumferline in a recent case Shannon Realties, Ltd. v. St. Michel (Ville De) (1924) A.C. 185:
Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.
25. In view of my decision on the first point it is not necessary to discuss the second point at length. But inasmuch as considerable argument has been advanced on both sides I will briefly notice them. The question is whether the hereditary archaka of a Hindu temple is a servant of the trustee of the temple or whether the trustee is an employer of the hereditary archaka. The hereditary archaka of a temple is not a person appointed by the trustee. He holds his office by virtue of hereditary right. He has to perform worship in the temple according to the Agama's which regulate such worship, and he has to perform the worship at such times and on such occasions as the usage of the temple enjoins. He cannot deviate from the usage of the temple. The trustee of a temple has the duty of looking after the interests of the temple and consequently the right to enforce strict adherence to the usages of the temple. The contention of Mr. Sitarama Rao is that inasmuch as the trustee has power to suspend or dismiss the hereditary servants for proper reasons he must be deemed to be their employer. The mere fact that one person has control over another would not make the latter a servant of the former. The archaka is a servant not of the trustee but of the temple, that is of the deity, whether it be god or goddess. The trustee of a Hindu temple is not a trustee in the English sense of the word inasmuch as no property vests in him and he is not the legal owner of the temporalities of the temple. He is only a manager with certain rights and duties attached to his office. He cannot deal with the properties of the temple as he likes. He can no doubt for certain purposes alienate the property of the temple; but that would not in any way make him the owner of any of the properties belonging to the temple. The word 'servant' as used in Section 49 means not a subordinate but one who gives his service to his master; and the word 'employer' is used in the sense of a person employing any one for his benefit or on his own account. The word 'servant' cannot apply to a person who is under the authority of another, nor the word 'employer' to a person who is only asked to supervise the work of another. The trustee is as much a servant of the deity as the hereditary archaka. The trustee cannot depart from the usages of the temple any more than the archaka, nor can he change the usage of the temple in the way he likes. I cannot uphold the contention that the archaka is a servant of the trustee within the meaning of Clause (vi)(2) of Section 49.
26. The cases relied upon by Mr. Sitarama Rao on this point do not help him. In S&shadri; Aiyangar v. Ranga Bhattar : (1911)21MLJ580 the observation is:
The position of an archaka on the other hand, though he may have a hereditary tenure in the office, is, in our opinion, essentially that of a servant. The trustee is the representative of the temple and the archaka must be subject to his disciplinary authority.
27. This observation cannot be taken to mean that the learned Judges held that the archaka was a servant of the trustee. The decision of the Privy Council in Bull & Co. v. West African Shipping Co. (1927) A.C. 686 has no application to the present case. In that case the plaintiff let out a lighter to the defendant. Part of the agreement was that the lighter should be manned by two boys. The boys left the lighter and it came to grief. The Privy Council upsetting the judgment of the Appellate Court and restoring that of the trial Judge held that the lighter boys were under the control of the defendant and, therefore, he was responsible for their negligence and the consequent loss. When a person lends his servant to another person, he places him under his control, and the servant is bound to work for him and be under his direction. The person who has this benefit of the services of a temporarily lent servant is in the position of a master and, therefore, is responsible for his acts or negligence. It is difficult to see how this case can help the 1st respondent here. The passage in 20 Hals. 260 applies only to cases where a person employs one for his own benefit whether that person is actually paid by him or not. In Grenville Smith v. Tomlin (1911) 2 K.B. 9 a salaried clerk was a clerk of the committee which was appointed jointly by the Corporation of a borough and the Council of the Urban District. It was held that he could not be the Chairman of the Urban District Council inasmuch as he was a salaried officer of the committee appointed by the Council. An observation of mine in VanamamaLal Jeer Swamigal v. Ven-kataramana Chariar (1922) 16 L.W. 931 is relied upon by Mr. Sitarama Rao. In that case the question was whether the archaka of a temple was entitled to the possession of the temple. The passage is : 'The position, therefore, of the archakas of the temple is only that of servants.' It is clear from the context that that passage means that the archakas are servants of the temple and not of the trustee. In Stone v. Cartwright (1795) 101 E.R. 622 it was held that a person who employs servants for another is not liable for the tort of the servants.
28. Lord Kenyon observed:
In all these cases I have ever understood that the action must either be brought against the hand committing the injury, or against the owner for whom the act was done; but it was never heard of that a servant who hires labourers for his master was answerable for all their acts.
29. In The King v. Hoseason (1811) 14 East. 605 : 104 E.R. 734 it was held that the employer of the servant is the master for whose service he is retained, and not the bailiff of the firm, who in fact hires the servant. The trustee of a Hindu temple is only a glorified bailiff of the deity of the temple. I hold that the hereditary archaka of a Hindu temple is not a servant of the trustee of the temple within the meaning of Clause (vi)(2) of Section 49 of the Act. ;:
30. In the result the order of the Lower Court is set aside and the petition is allowed with costs throughout. Vakil's fee Rs. 100.