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M. Shanmuga Mudaliar Vs. S. Subbaraya Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai
Decided On
Reported in140Ind.Cas.540; (1932)63MLJ932
AppellantM. Shanmuga Mudaliar
RespondentS. Subbaraya Mudaliar and anr.
Cases ReferredGopala Aiyangar v. Ebrahim Rowthar I.L.R.
Excerpt:
.....of the poor of walsall v. ' it is impossible to find in the light of these remarks that the election commissioner has failed to address himself to the point which he had to consider in coming to a conclusion upon the objections taken with reference to section 49. it has also been argued with reference to rex v. 7. as far, then, as the objection is taken that the election commissioner has taken a wrong view of section 49, these petitions must fail. 35, except that there respondent 2 becomes respondent 1, this person being the same as the present 2nd petitioner, vrithambal ammal and that clause (4)(e) becomes clause (4)(c). for the respondents it is contended that by some inadvertence this fourth issue has not been made applicable to the 1st petitioner also, but a reference to the..........an order which he had jurisdiction to pass and the order cannot be interfered with by means of a writ. a reference has been made in this connection to gopala aiyangar v. ebrahim rowthar i.l.r. (1925) 48 mad. 509 : 49 m.l.j. 606. in that case, the district judge, on setting aside the election of a party as municipal councillor because of a disqualification, ordered a fresh election. another party, who had applied for being himself declared duly elected, cams up on revision, contending that he was entitled to be so declared. the full bench dismissed the revision petition holding that a candidate who gets the next highest number of votes to the successful candidate who is disqualified is not entitled, as a matter of course, to be declared elected under the then rule 12 which is identical.....
Judgment:
ORDER

Bardswell, J.

1. In each of these petitions the issue of a writ of certiorari is prayed for in order to quash an order of the Election Commissioner of Vellore, dated 19th August, 1932, in O.Ps. Nos. 34 and 35 of 1931. The Election Commissioner is in his ordinary official capacity the Subordinate Judge of Vellore. As Election Commissioner he is persona designata. For the purposes of this order the petitioner and respondent No. 1 in C. M. P. No. 4040 will be styled respectively the 1st petitioner and the 1st respondent. The petitioner and the 1st respondent in the other petition will be styted respectively the 2nd petitioner and the 2nd respondent. The 2nd respondent in both the petitions is the, Election Commissioner, who is only a party pro forma.

2. On the 8th October, 1931, an election was held for Ward No. 14 of the Tiruvannamalai Municipal Council. The result declared next day was as follows:

Votes1st petitioner .. 2152nd ' .. 1602nd respondent .. 641st ' .. 8

3. There were two other candidates who got 4 and 5 votes respectively. With these we are not concerned. The two respondents filed respectively O.Ps. Nos. 34 and 35 of 1931 before the Election Commissioner. In O.P. No. 34 it was prayed that the election of the two petitioners might be declared void and that the 1st respondent might be declared duly elected. In O.P. No. 35, the 2nd respondent asked for a similar relief for himself on similar grounds. The Election Commissioner has passed one judgment on both the petitions before him and has declared the election of both the petitioners void and at the same time has declared the two respondents to be duly elected. The 2nd respondent like the 2nd petitioner is a woman, and her election is for a reserved seat.

4. The order of the Election Commissioner is based upon his interpretation of Section 49(2)(f) of the Madras District Municipalities Act by which a person shall be disqualified for election as a Councillor if such a person is, at the date of nomination or election, a servant or employer or an official subordinate or official superior of a Councillor holding office on the said date. Now it has been established by a Full Bench decision of this Court in Selvaranga Raju v. Doraiswami Mudaliar I.L.R. (1929) 52 Mad. 732 : 57 M.L.J. 241 that a disqualification under Section 49 can be made a ground for a petition before an Election Court impugning an election and so the Election Commissioner certainly had the jurisdiction to enquire into the objections of the present respondents to the election of the petitioners with regard to that section. It has also been held by a Divisional Bench of this Court in Govindaswami Pillai v. Ramalingaswami Pillai (1931) 62 M.L.J. 644 that an election officer is empowered by the rules to reject a nomination because a candidate is disqualified under Section 49 and that this involves a power and duty of deciding whether, in fact, the candidate is so disqualified; and the same case points out that the decision of a tribunal does not become without jurisdiction because it is wrong. In the present instance it has been urged that the Election Officer's interpretation of Section 49 is incorrect and it is sought, with reference to many English authorities, to show that this incorrect interpretation amounts to an error of jurisdiction. None of the decisions, however, that have been quoted to me justifies my acceptance of this argument. In the face of the decision of this Court, already quoted, in Govinda-swami Pillai v. Ramalingaswami Pillai (1931) 62 M.L.J. 644, it is unnecessary for me to go into an elaborate discussion of all these decisions. I shall merely mention them with a minimum of comment. They are: Overseers of the Poor of Walsall v. London and North Western Railway Co. (1878) 4 A.C. 30, King v. Electricity Commissioners (1924) 1 K.B. 171 , Rex v. Board of Education (1910) 2 K.B. 165 , Rex v. Nat Bell Liquors, Ltd. (1922) 2 A.C. 128, The Colonial Bank of Australia v. Willan (1874) 3 P.C. 417, Rex v. Lincolnshire Justices (1926) 2 K.B. 192 and Rex v. The London County Council (1931) 2 K.B. 215. Not one of these decisions is an authority for the position that an erroneous decision on a point of law, by Lower Court acting within the limits of 1 its jurisdiction, can be a ground for issuing a writ of certiorari. The decision in The Colonial Bank of Australia v. Willan (1874) 3 P.C. 417 is very clear as to this when it says that a Court will not quash, except on a ground either of manifest defect of jurisdiction in the tribunal which made it or of manifest fraud in the party procuring it; and again, in Rex v. Lincolnshire Justices (1926) 2 K.B. 192 it has been ruled that if the Lincolnshire Justices were bound to come to some conclusion, right or wrong, then they had jurisdiction and a writ could not be issued because of the wrong conclusion. The matter has been summed up in Halsbury's Law of England, Vol. 10, paragraphs '379 and 381. Paragraph 379 shows that where in the face of the proceedings themselves it appears that the determination of an inferior Court is wrong in law, certiorari will be granted; but this has to be read with what follows in paragraph 381 that, where proceedings are regular on their face, and a Court has had jurisdiction, the superior Court will not grant the writ of certiorari on the ground that the Court below has misconceived the point of law. Indeed, that paragraph 379 is not intended to show that a writ can be granted because, of an erroneous conclusion on a point of law arrived at in the proper exercise of the Court's jurisdiction, is known by what that section goes on to say as to in what kind of circumstances such a writ can be granted. It comes to this that when a Court, or similar authority, gives to itself a jurisdiction which it properly has not got, by taking an erroneous view of the law, a writ will be issued, but that there will be no writ if it makes a mistake in the law when acting in the exercise of a jurisdiction which it undoubtedly possesses. It is true that in Gould v. Gapper (1804) 5 345 : 102 E.R. 1102 a writ of prohibition was granted even when the error did not appear on the face of the proceedings but had to be collected from the whole of it; but even in this case the error was one of jurisdiction, it being one arising from the clash of procedure between the Ecclesiastical Courts and the ordinary Courts of Common Law. It is unnecessary for me to discuss the matter further when the matter has already been decided by a Divisional Bench of this Court, whose decision I am bound to follow. However much, then, I may think that the interpretation by the Election Commissioner of Section 49 is incorrect, I cannot, in that he arrived at that interpretation in the exercise of a jurisdiction which he possessed, grant a writ of certiorari because of the decision being erroneous.

5. There is one more decision of this Court to which I may refer, Ramaswanii Goundan v. Muthuvelappa Gounder I.L.R. (1922) 46 Mad. 536 : 44 M.L.J. 1. In this case the point of a wrong interpretation of the law having been given by a Judge in the exercise of his jurisdiction was considered, on an application for revision under Section 115, Civil Procedure Code and Sections 106 and 107 of the Government of India Act. But in that case there was not merely this wrong interpretation of the law, but it further led to acts which amounted to an excess of jurisdiction, one of these being the declaration of a party as having been elected as President when, as far as the record went, it appeared that that was a relief which had not been prayed for, and another being that a person was removed from the post of President on a ground that had not been taken in the petition on which the order as to that was passed. The ultimate order passed in that case, I may note, was that the petition under review was remandad for disposal on its merits according to law.

6. The learned Advocate-General has referred to a finding in Rex v. Board of Education (1910) 2 K.B. 165 that the Board of Education had, by answering a question not referred to it and avoiding any answer to the real question, declined jurisdiction. He contends that in this case the Election Commissioner has not addressed himself to the only point that he was qualified to deal with, viz., whether the present petitioners were holding office at the time of their nomination. From the order under review, however, I cannot find that this position taken by the learned Advocate-General is justified. In the course of the order 1 find the following passages : (1) 'The words 'holding office on the said date' mean holding office on the date of nomination or election by virtue of which the relationship of being official subordinate or official superior came into existence'; (2) ' The persons in question became councillors and both held office of trustee and dasi respectively on the dates of nomination and election.' (3) 'I therefore hold that the only reasonable meaning of Section 49(2)(f) is that official superiors or official subordinates holding such office on the date of nomination or election are disqualified from sitting as councillors.' (4) ' As I have observed supra Vrithambal Animal (i.e., 2nd respondent) is the official subordinate of the Councillor Shanmuga Mudaliar. She was such a subordinate on the date of nomination and election.' It is impossible to find in the light of these remarks that the Election Commissioner has failed to address himself to the point which he had to consider in coming to a conclusion upon the objections taken with reference to Section 49. It has also been argued with reference to Rex v. Wandsworth Licensing Justices (1921) 3 K.B. 487 that there is a case for a writ here, in that the Election Commissioner has been influenced by extraneous considerations. The reference is to his view that the words 'holding office' need not mean holding office as Municipal Councillor but may refer to the office in respect of which one person is superior or subordinate to another. But, though his view as to this may be wrong, it is not one, that is based on considerations that were foreign to the' case with which 'he had to deal. Rather it is based on considerations that were very germane thereto. I should note that it is not admitted that the petitioners stand to each other-in the relation of superior and subordinate, but the Election Commissioner has found on the evidence that they bear such a relation to each other and there has been no argument before me as to that finding.

7. As far, then, as the objection is taken that the Election Commissioner has taken a wrong view of Section 49, these petitions must fail.

8. There is, however, another point taken, which concerns only the case of the 1st petitioner. This is that the Election Commissioner has declared his election to be void on a ground not taken in the petition against him. If such is the case, then the action of the Election Commissioner in setting aside his election and declaring the 1st respondent elected in his place will be one in excess of jurisdiction, as appears not only from Ramaswami Goundan v. Muthuvelappa Gounder I.L.R. (1922) 46 Mad. 536 : 44 M.L.J. 1, to which I have already referred, but also from R.S. Naidu v. J. Ramier : AIR1926Mad947 , a more recent decision by Jackson, J., sitting alone. As far as the issue as to this matter goes the contention thus put forward for the 1st petitioner appears to be correct. This issue as framed in O.P. No. 34 is as follows : 'Is the nomination of the 2nd respondent as a candidate invalid for the reasons stated in paragraph 4(e) of the petition and is this Court entitled to go into that question?' and there is the same issue in O.P. No. 35, except that there respondent 2 becomes respondent 1, this person being the same as the present 2nd petitioner, Vrithambal Ammal and that Clause (4)(e) becomes Clause (4)(c). For the respondents it is contended that by some inadvertence this fourth issue has not been made applicable to the 1st petitioner also, but a reference to the pleadings shows that this contention is not well founded. The election of the two petitioners was sought to be set aside on a number of grounds, and a number of issues, apart from issue 4, were framed as to them. Some of them applied only to the 1st petitioner and some of them applied both to him and the 2nd petitioner, but none of them was pressed at the enquiry and the matter was argued only with reference to issue 4 which I have already quoted. Issue 4 is based on Clause (e) in die one case and Clause (c) in the other of para. 4 in the petitions, to the Election Officer. That clause as it appears in O.P. No. 34 runs as follows:

From the outset the election proceedings have been conducted and held contrary to the provisions of the Act and the rules framed thereunder, in so far as the 2nd respondent, who is a dasi of Sri Arunachaleswarar Temple, is the servant and subordinate of the 1st respondent who, as stated above, is the Executive Trustee having full control over the 2nd respondent, and, therefore, disqualified to stand as a candidate along with the 1st respondent. Consequently the 2nd respondent's nomination paper which has been improperly received should have been rejected by the 6th respondent who is therefore impleaded as a party.

9. Clause (4)(c) hi O.P. No. 35 is to a like effect, mutatis mutandis clearly the objection taken in this clause is only as to the position of the present 2nd petitioner and to her nomination paper which, on the grounds stated, is said to have been improperly received. It is true that there is a reference to the 1st petitioner, but this reference is only to show that the 2nd petitioner is disqualified to stand as a candidate along with him, in that he is an executive trustee having full control over her. The point taken is that she is disqualified because of him and not at all that he himself was disqualified to stand or should not have been nominated. This, then, is a case in which the Commissioner has not confined himself to an enquiry into the points raised in the petition. I may note that the Election Commissioner himself realised that under this issue he was dealing only with the case against the 2nd petitioner, as his conclusion is thus expressed: 'I, therefore, find that the lady councillor should cease to be councillor under Section 50(1)(f) also.' From what has gone before, it is clear that what he meant by this was that he was deciding the matter with reference to Section 50(1)(f) as well as to Section 49(2)(f). A point has been taken that he should not have brought Section 50(1)(f) into consideration, but I need not deal with this point, as it is sufficient that he had jurisdiction to deal with the matter under Section 49(2)(f) and has disposed of it thereunder. That is the section with reference to which O.Ps. Nos. 34 and 35 of 1931 were brought. As to the matter of inadvertence I would observe that, if there has been any, it has been in only pressing the one issue though, for aught I know, that may have been due to quite other causes. The actual reason for pressing only the one issue has not been shown to me. In any case the 1st petitioner must have, the benefit of the fact that the one issue that was pressed was one that did not tell against him.

10. As I find that the Election Commissioner has acted in excess of his jurisdiction in declaring the election of the 1st petitioner, i.e., the petitioner in C.M.P. No. 4040, void and in declaring that' the 1st respondent of that petition had been elected, was passed without jurisdiction, I quash his order as to that, so that the election of the petitioner in C.M.P. No. 4040 will stand. That petition is, therefore, allowed with costs.

11. In the case of the 2nd petitioner, i.e., the petitioner in C M.P. No. 4335 of 1932, the result of the Election Commissioner's order is that a party who received 64 votes has been declared duly elected, thereby disfranchising the 160 voters who have voted for the 2nd petitioner in ignorance, it would appear, of his disqualification. Under Rule 11(2) the Election Commissioner had the option, if he declared the election of the 2nd petitioner void, either to declare that any other party to the petition who has under the rules claimed the seat has been elected, or to order a fresh election, and there is nothing in the rule to suggest that he is in any way restricted in the exercise of the option. It might have been better in such a case as this to order a fresh election but, if the Election Officer could in his discretion declare that the 2nd respondent was duly elected, then he was passing an order which he had jurisdiction to pass and the order cannot be interfered with by means of a writ. A reference has been made in this connection to Gopala Aiyangar v. Ebrahim Rowthar I.L.R. (1925) 48 Mad. 509 : 49 M.L.J. 606. In that case, the District Judge, on setting aside the election of a party as Municipal Councillor because of a disqualification, ordered a fresh election. Another party, who had applied for being himself declared duly elected, cams up on revision, contending that he was entitled to be so declared. The Full Bench dismissed the revision petition holding that a candidate who gets the next highest number of votes to the successful candidate who is disqualified is not entitled, as a matter of course, to be declared elected under the then Rule 12 which is identical in its terms with the present Rule 11. What was decided was that a candidate in such a position was not entitled, in. such a case, to be declared elected and not that it was not permissible for the District Judge to pass either of the two orders which the rule allowed. I must find then that the Election Commissioner in declaring the 2nd respondent elected parsed an order which was within his jurisdiction and that I cannot, therefore, interfere with it.

12. The result, then, is that C. M. P. No. 4335 of 1932 has to be and is dismissed with costs.

13. Pleaders' fee Rs. 200 on each petition.


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