1. The plaintiff was a candidate for a seat in the Mayavaram Municipal Council and at an election held on 13th December 1906 he received the largest number of votes. An objection was preferred on the ground of bribery and corruption and after an enquiry by the Divisional Officer the Collector passed an order under Rule 36 of the Election Rules declaring; the election invalid, and ordering a fresh election to be held.
2. The plaintiff then brought the present suit. He prayed (1) for a declaration that he had been duly elected and in consequence was entitled as such to exercise the rights and privileges of a Councillor; (2) for an injunction restraining the Municipal Council from holding a fresh election. His suit was dismissed in both courts. The District Munsiff held that the Collector's order could be questioned in a civil suit, such as the present one, but on going into the merits he held that the bribery was proved, that the Collector's order was a proper one, and that the plaintiff was entitled to no relief. The District Judge dismissed the appeal on the sole ground that the Collector's order was final as far as the result of the election was concerned and could not be questioned in a civil suit.
3. Before us, argument on both sides has been directed solely to the question whether the order of a Collector under Rule 36 above quoted can be questioned in a civil court, and if so, on what grounds. The learned vakil for the appellant wished to raise a further point whether the election rules themselves were not ultra vires. We have, however, felt ourselves bound to refuse to go into this point. It is not taken in the appeal memorandum and the omission was admittedly deliberate in view of the decision in Secretary of State for India v. Venkateswarulu Naidu I.L.R. (1906) M. 113 The appellant's Vakil states that lie is now prepared to argue that this decision is wrong but he has tiled no memorandum of additional grounds of appeal as required by the rules of this Court We therefore refused leave to argue this point.
4. Coming then to the sole point for decision, we may say at once, that we are in substantial accord with the views of the learned District Judge who has discussed the matter very fully and ably in his judgment We do not understand him to mean, and we ourselves are not prepared to say, that under no circumstances whatever could a Collector's order purporting to be passed under Rule 36 of the Election Rules be called in question in a civil court. If such an order had been passed without any inquiry at all, or was based on grounds other than those set forth in Rule 35, a suit would probably lie to set it aside as ultra vires. But whereas, in the present case, the order appears to have been passed after the compliance with all the requirements of the rules and purported to be based on proper grounds, we agree with the District Judge in holding that it cannot be questioned in a civil suit, but is conclusive as far as the result of the election is concerned. In other words the candidate adversely affected cannot demand that a civil court should hold a fresh inqury into the merits of the dispute; and if it comes to a different decision on these, should treat the Collector's order as a nullity and give a declaration deciding the result and effect of the election. In this case, no formal defect in procedure has been relied on; the only allegation in the plaint is that the Collector's order is unsupported by 'legal evidence' - a plea which has been sufficiently dealt with by the District Judge.
5. These conclusions, in our opinion, spring naturally from the fact that the status of a Municipal Councillor is the creation of Section 10 of the Madras District Municipalities Act (IV of 1884) and that creation is subject inter alia to the condition imposed by the election rules framed by the Governor-in-Council under Section 250 of the same Act and invested by Clause (3) with the force of law. One of these rules is Rule 36 which empowers the Collector under certain circumstances to declare an election invalid and order another election to be held. The election which, as the plaintiff contends, gives him a vested status is, in fact, only held conditionally on its being liable to be declared invalid, and an invalid election can confer no status whatever. The appellant's Vakil lays stress on the words 'appointed by election' in Section 10 of the Act is indicating that a candidate acquires by election alone, apart from subsequent notification of appointment, a status which he can bring in to establish a civil suit. But the term 'election' in these sections undoubtedly means a valid election - one which is not set aside under Rule 36. It is only such a valid election that could confer any status and it is not therefore necessary for us to go into the question of what is the legal position of a candidate who has been validly elected but whose appointment has not been notified under Section 21-A of the Act.
6. In support of our view that the validity of a Collector's order passed in substantial conformity with the requirements of the rules cannot be questioned in a civil court, we may quote the remarks of Jenkins C.J. in Bhaishankar v. The Municipal Corporation of Bombay I.L.R. (1907) B. 604 : 'Where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary courts, for they never had any; there is no change of the old order of things; a new order is brought into being.' And again at p. 610 : 'The jurisdiction of the courts can be excluded, not only by express words, but also by implication, and there is certainty enough in Section 33 of the Municipal Act for this purpose, fof there is no right which the plaintiff can at this stage assert as the subject of this suit, which is not subject to the condition that its essential basis must depend on the decision of the tribunal created for that purpose' We consider that as in Section 33 of the Act, then in contemplation, so in Rule 36 in the present, case, there is certainty enough to bar by implication the jurisdiction of the civil court.
7. We may also quote Maxwell on the Interpretation of Statutes, 4th Edn., p. 197 : 'Where indeed a new duty ox cause of action is created by statute and a special jurisdiction out of the course of the common law is prescribed, there is no ouster of the jurisdiction of the ordinary courts, for they never had any.'
8. The most pertinent of the cases relied on by the appellant are those reported in Vijiaraghava v. Secretary of State for India I.L.R. (1884) M. 466, Sabapd Sing v. Abdul Gaffur I.L.R. (1899) C. 107 and Lalbhai v. The Municipal Commissioners of Bombay I.L.R. (1908) B. 334. We have carefully considered these rulings but we do not find anything in them which should lead us to modify the views above indicated.
9. The first of these cases arose out of a suit brought by a Municipal Councillor for damages for wrongful removal from office under Section 9 of Madras Act III of 1871. Apart from certain differences in the provisions of the Act, it can be distinguished from the present case on two broad grounds. In the first place, in that case, the Advocate General on behalf of Government explicitly abandoned the plea that the plaintiff had been guilty of any misconduct or neglect of duty, the only grounds on which under the section Government were empowered to remove him. In its stead he set up a purely discretionary power to remove which their Lordships held not to vest in Government. No such absolute discretionary power is in question. Whether if the Government had stood by the position that the plaintiff had actually been guilty of misconduct or neglect, the court would have deemed it proper to go into the truth of these allegations it is difficult to say. The issues framed seem to raise no such question of fact. It is true that two of the learned Judges deal at considerable length with certain evidence bearing on plaintiff's conduct; but as explained by Hutchins J, this evidence was considered only as bearing on the question of damages. The second ground of distinction is that as the suit was finally determined, it was one for damages only. The plaintiff had originally sued for two declarations - (1) that his removal was null and void; (2) that he was entitled to hold office as commissioner for the residue of his three years. The prayer for the second declaration was withdrawn and this is most important. Whether the prayer for the first declaration was also withdrawn is not certain (the statements in the judgments of Hutchins and Kernan JJ. on this point being conflicting) : but it is quite clear that it was not granted.
10. A suit for damages and a suit for the reliefs prayed for in the present suit stand on a very different footing. It is quite conceivable that a court might grant damages claimed in consequence of an order and yet decline to declare that the order was null and void. A comparison of the relief granted in the reported case, with the relief not granted (whether in consequence of a withdrawal or not) tends to suggest that such a distinction may have been actually drawn.
11. The other cases are equally distinguishable. In Sabaptt Singh v. Abdul Gaffur I.L.R.(1896) C. 107 the Magistrate had set aside the election on the ground that the plaintiff, the candidate with most votes, was not qualified to stand. The suit was brought to declare that the plaintiff was a person qualified to vote and stand as a candidate (the qualifications were identical) and for a declaration that he was duly elected. We quite agree that the suit would lie as regards the first declaration - a matter which, as the learned Judges point out, would affect the plaintiff's right to vote and stand at all future elections and this is the chief point dealt with by them. The second declaration that he was duly elected was as a matter of fact refused. We doubt the learned Judges would go into an objection to the election, which was not the basis of the Magistrate's order, and say that they ought not to do anything to validate an election which was open to so grave an objection. This certainly suggests that they deemed the civil courts to have the power to override the Magistrate's order and adjudicate on the validity of an election. But in as much as they refused to exercise the power the pronouncement, such as it is, is of the nature of an obiter dictum, and the court appears to have had in mind the special provisions of Section 15 of the Act then under consideration which apparently reserves the jurisdiction of civil courts.
12. The case in Lallbhai v. The Municipal Corporation of Bombay I.L.R. (1908) B. 334 is really beside the point. It is merely an authority for holding that even discretionary powers must be exercised in a reasonable mannner and not capriciously or arbitrarily.
13. The second appeal is dismised with costs.