1. Five persons were nominated as candidates for election to the Rajampet Taluk Board--Panjam S. Chengareddi, T. Radhakrishnayya, Lingam Andhrayya, Kuramutla Gangadu and D. V. N. Abraham. Kuramutla Gangadu was elected and in O.P. No. 75 of 1932 the Election Commissioner at Nandalur set aside his election and declared the candidate having the next largest amount of votes to be elected, vis., D.V.N. Abraham. Kuramutla Gangadu in C. M. P. No. 3287 and Lingam Andhrayya in C.M.P. No. 5383 apply for a writ of certiorari to quash the Commissioner's order.
2. The only point taken is that when the Commissioner found the election of Kuramutla Gangadu to be invalid owing to false personation, he ought to have ordered a fresh election and it was beyond his jurisdiction to declare the next on the poll duly elected.
3. Rule 12 of the Rules for the Conduct of Inquiries and the Decision of Disputes relating to Elections framed under Section 199(2)(c) of the Madras Local Boards Act gives the Commissioner a discretion either to declare another claimant duly elected, or to declare a fresh election. This is affirmed in S. K. Devasigamony v. M.R. Sethuratnam Iyer (1924) 87 I.C. 363.
4. It is argued however that the Commissioner did not exercise a lawful discretion in declaring the claimant elected; because where electors have bona fide given their votes for a candidate subsequently disqualified for reasons unknown to the voters, they should be given an opportunity in a fresh election, of recording those votes for a qualified candidate. These votes should not be thrown away.
5. It is not disputed that this is not the course which the Commissioner should have followed, and the only question is, whether in adopting the other course, he can be said to have acted 'according to law and not humour'. Questions involving the right of a functionary to be wrong are exceedingly difficult; but in this matter, I have been considerably helped by my learned brother Bardswell, J., who, in Shanmuga Mudaliar v. Subbaraya Mudaliar : (1932)63MLJ932 , has covered the same ground and collated the authorities. I subscribe to his conclusion on page 936 that when a Court or a 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.
6. Applying this rule to the present case, the Commissioner undoubtedly possesses jurisdiction either to appoint the claimant or to order a fresh election. Acting in the exercise of that jurisdiction he has made a mistake in overlooking that the votes cast for the disqualified candidate will be thrown away, but that mistake is not sufficient to warrant the issue of a writ by this Court.
7. There is nothing to negative this conclusion in my judgment reported in Pulakam Ramakristnareddi v. Nooney Panakalu (1928) 110 I.C. 342. There on the bare calculation of figures, it was found that the petitioner headed the poll, and no one suggests that an arithmetical mistake is not subject to revision.
8. The subsequent paragraph is only by way of general precept, just as in this present case I should not hesitate to say that there ought to have been a fresh election. This in fact is clearly laid down in Gopala Ayyangar v. Ebrahim Rowther I.L.R. (1925) Mad. 509 : : (1925)49MLJ606 but that decision is no authority for interference by way of writ.
9. The petitions are accordingly dismissed and in the circumstances the parties will pay their own costs.