1. The facts are fully set out in the order petitioned against. The petitioner was a candidate for election as Councillor in Kumbakonam Municipality when the Chairman received a letter, purporting to be from him but which he repudiates as forged, withdrawing his candidature. Accordingly the counter-petitioner was deemed to be elected, and the petitioner moved the Subordinate Judge under the Rules for the decision of disputes as to the validity of an election. The Subordinate Judge has held that he has no jurisdiction under these rules and hence this Civil Revision Petition. The question for determination is whether under the rules framed by Government for the decision of disputes as to the validity of an election held under the Madras District Municipalities Act, 1920, the District or Subordinate Judge has jurisdiction to decide a dispute when the number of candidates being less than the number of vacancies, a candidate has been deemed to be duly elected under Rule 7(1) of the Rules for the conduct of elections.
2. Rule 1 of the rules for the decision of disputes runs :--' No election held under the Madras District Municipalities Act, whether of a Councillor, Chairman or Vice-Chairman, shall be called in question except by an election petition presented in accordance with these rules to the District or Subordinate judge having jurisdiction by any candidate or elector against the candidate (hereinafter called the returned candidate) who has been declared by the Chairman to have been duly elected. '
3. Rule 7(1) of the rules for the conduct of elections runs:--' If the number of candidates who have been validly nominated and have not withdrawn their candidature is equal to the number of vacancies, all such candidates shall be deemed to be duly elected. ' These last words are tantamount to saying that an election shall be deemed to have been held, and so far, Rule 1 for the decision of disputes presents no difficulty. An election has been held under the Act. But when the rule proceeds to confine the petition to one against the candidate (hereinafter called the returned candidate) who has been declared by the Chairman to have been duly elected, I think that its scope must be limited to cases where a poll has been held. Because when the candidates are deemed to be duly elected under Rule 7(1), there is no question of any declaration by the Chairman. In fact, in the present case, the petitioner has never alleged that he was declared by the Chairman to have been duly elected. It is only after a poll that the Chairman is directed [Rule 23 (a)] to prepare a return in Form No. VIII and declares the election of the candidate to whom most votes have been given. If the wording in Rule 1 had simply been ' declared to have been duly elected, ' I should have been inclined to hold that the rule gave jurisdiction in cases where the candidate was deemed to be duly elected. For ' declared ' by itself means no more than published, and there would presumably be a publication of the result whenever a candidate was deemed to be elected. In this connection the rules for election to the Legislative Assembly may be compared. There, after a poll, a declaration of the result is to be made by the Returning Officer, but if there is no poll the result simply ' shall be declared ' and by whom is not stipulated. On the other hand, the rules for the conduct of municipal elections might have contained a specific direction that when the number of vacancies and of candidates was equal, the chairman should forthwith declare the candidates to be elected, and return their names. This would follow the English rule in Section 1 of the Ballot Act of 1872 and then there would clearly be jurisdiction under the rules for decision of disputes. But inasmuch as Government have omitted all reference to a declaration in cases where the number of vacancies and of candidates is equal and have fully provided for a declaration by the chairman in cases where there has been a poll, I think it may fairly be presumed that they intended a petition against the candidate who has been declared by the chairman to have been duly elected to be confined to cases where he has been elected by a poll. That this was the intention of Government is further Borne out by the framing of Form VIII--the only Form supplied for the return of elected candidates, in which the reference to valid and invalid votes clearly shows that a poll is contemplated.
3. I therefore agree with the learned Subordinate Judge that has has no jurisdiction to inquire into disputes of this nature. The petitioner cites as authority in his support the ruling in Sarvothama Rao v. Chairman, Municipal Council, Saidapet : AIR1923Mad475 . Two candidates whose nomination papers had been rejected applied for an injunction to restrain the candidate deemed, in consequence of his rejection, to have been duly elected from acting as councillors. Sir Walter Salis Schwabe, C.J., observed: 'It is open to these candidates to proceed by election petitions.' Wallace, J. also observes: 'The petitioners have their remedy by way of election petitions....Elections have been held and there is a tribunal set up by the rules for the decision of petitions to set aside election.' The peculiar difficulty which has been discussed in this case was evidently hot present to the minds of the learned Judges, and until the point is specially raised, it is natural to assume prima facie that Rule 1 applies to all cases of election. Therefore I do not hold that the ruling in Sarvothama Rao v. Chairman, Municipal Council, Saidapet : AIR1923Mad475 governs the case.
4. The petition is dismissed with costs.