1. This is an application by Sri Rajah Malraju Venkatanarasimha Rao Bahadur Garu of Narasaraopet for a writ of certiorari to be issued to the three respondents who are (1) the Chairman of the Narasaraopet Municipal Council elected at a meeting on the 5th of November, 1929, (2) the Municipal Council, and (3) the Vice-Chairman of the Municipal Council who presided at the meeting of the 5th of November for electing the Chairman, and for setting aside the alleged resolution of a meeting on that day declaring the 1st respondent to have been duly elected as Chairman. The petitioner is the other candidate for election.
2. An application was made to the Government by the petitioner for setting aside the election on the ground of various irregularities in the election; but the Government while finding that 'the action of the Councillors in violating the provisions of Rule 4 of the rules for the election of Chairman and Vice-Chairman of the Municipal Councils prescribing secret voting was highly irregular' did not interfere with the election in question and passed an order leaving the aggrieved parties to the legal remedies. Immediately after the said order of the Government (on the 10th of December, 1929) the present petition was filed. We issued an interim writ. The Municipal Council of Narasaraopet appear by counsel and oppose the application.
3. The first point that would suggest itself is the question whether the writ of certiorari ought to be issued when there is another remedy open: Under the election rules an election petition lies; but unless the statutes or bye-laws made under the statutes take away the remedy by certiorari the writ may be issued. Where it is laid down in the statutes or bye-laws made under the statutes that proceedings under them shall not be removed by the writ of certiorari, then certiorari is said to be taken away by such statutes; that is, it is taken away only by express negative words and not merely by words which direct that certain matters shall be finally determined. Vide Halsbury, Vol. 10, Section 345. But even in cases where certiorari is taken away a writ may be issued if the authority acted without jurisdiction. Vide. Halsbury, Vol. 10, Section 348. This was the procedure adopted in Ex parte Bradlaugh L.R. (1878) 3 Q.B.D. 509. See also Numdo Lal Bose v. The Corporation for the Town of Calcutta I.L.R. (1885) C. 275. It ought to be done under exceptional circumstances only.
4. The next question is whether in this matter the resolution which is sought to be set aside is an act of a judicial authority. The writ lies for the purpose of quashing the determinations of bodies who are entrusted with judicial functions out of the ordinary course of legal procedure. Vide Halsbury, Vol. 10, Section 320. Even in respect of such bodies the writ lies only in judicial as distinguished from ministerial acts. In Frome United Braveries Co. v. Bath Justices (1926) A.C. 586 Lord Atkinson quoted the dictum of May, C.J., in Reg v. Dublin Corporation L.R. (1878) 2 Ir. 371 as follows:
In this connection the term 'judicial' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others. And if there be a body empowered by law to inquire into facts, make estimates to impose a rate on a district, it would seem to be that the acts of such a body involving such consequence would be judicial acts.
5. In the present case, we find that the proceedings of the Council, dated 5th of November, 1929, do not contain even a resolution of the Council. They recorded the facts relating to the election and the declaration of the returning officer (the Vice-Chairman declaring the votes obtained by each candidate and who got the majority of the vote. I am unable to see m this the act of any tribunal, judicial or quasi-judicial. There was no question of the validity of the voting papers. The, Council or even the Chairman did not purport to enquire into any matter or weigh the evidence relating to any matter in dispute or consider it in any manner that can be considered judicial or quasi-judicial. On this ground we dismiss the. application with costs of 1st and 2nd respondents. Advocates' fee being fixed at Rs. 25.
6. I am of the same opinion. The affidavits disclose irregularities in the manner of voting which might have been challenged in an election petition. But there was nothing done by the Municipal Council in the nature of a judicial act to which the remedy of a writ of certiorari would be applicable. When this case was first argued it was represented to us on the strength of the petitioner's affidavit that the Council had passed a resolution adopting the election of the 2nd respondent as the Chairman of the Council. But the 2nd respondent's affidavit which has since been filed denies that there was any resolution of the Council upon the matter, and this appears to be the fact from an examination of the Council's minute book. The Council did not, therefore, profess to 'exercise some right or duty to decide', which, as Fletcher Moulton, L.J., has explained in R. v. Woodhouse (1906) 2 K.B. 501, is necessary to provide scope for the writ of certiorari. All that was done was to record in the minute book the result of the poll as declared by the presiding member. The act of the presiding member in declaring the result of the poll was a purely ministerial or administrative act. See Pritchard v. Mayor, etc., of Bangor (1888) 13 A.C. 241. And a writ of certiorari cannot be granted in respect of such an act: R. v. Woodhouse (1906) 2 K.B. 501.
7. The learned Counsel for the petitioner has argued that the presiding officer was under a duty to decide upon the validity of the votes given in such circumstances, and that he must be deemed to have decided that notwithstanding the irregularity in the voting the voting papers were valid.
8. Reference has been made to the following passage in Lord Halsbury's judgment in Pritchard v. Mayor, etc., of Bangor (1888) 13 A.C. 241) in regard to the functions of the returning officer at a municipal election:
He is to do therefore the thing which the statute expressly says he shall do, namely, to count the votes, that is to say the written papers so put into the ballot boxes, and according to their number to declare which candidate is elected. One function is no doubt given to the returning officer, and that is a judicial function, with regard to the question of the validity of the voting papers as papers, to see whether they comply with the statute or whether there is any objection to them.
9. Those are precisely the functions given to a presiding member by the rules framed under the Madras District Municipalities Act for the election of a Chairman. He is to count the voting papers placed in the ballot-box, and those papers are to be marked only by the voters placing a cross against the name of a candidate on the paper. Rule 6 provides that any voting paper which contains the signature of the voter or on which the cross is placed against more than one name shall be invalid. A voting paper which on the face of it offended against Rule 6 would not be counted by the presiding officer. But, with this exception the rules give him no power to adjudicate upon the validity of a vote. In my judgment, nothing done by the pre-siding officer in the declaration of the result of the poll exceeded his strictly ministerial functions, and, accordingly, there is no ground for the grant of certiorari in respect of anything done by him.