1. The facts of this case may be shortly stated as follows. In anticipation of a vacancy to occur in the Municipal Council of the Coimbatore Municipality, the Chairman originally fixed the 29th of August for receiving nominations, the 1st September for the scrutiny of the nominations and the 9th September for the taking of the poll. Two candidates sent letters to the Chairman purporting to withdraw their candidature on the 7th September. Under Rule 6 of the rules made by the Local Government these letters do not amount to proper withdrawals. On the 8th September the Chairman erroneously regarding the letters as proper withdrawals made a declaration that no poll was necessary. He apparently detected his mistake, dropped the proceedings and started fresh proceedings for election. He fixed the 23rd September for receiving nominations and the 4th October for polling. On the 1st October, the then sitting member declared his willingness to serve, but the Chairman, refusing to accept this as one which the member was entitled to make at that stage, started fresh election proceedings calling for nominations on the 8th October. On the 4th October this plaint was filed for a declaration, that the plaintiff continued as a valid member under the Act. Both the lower courts have decided against the plaintiff and he files this Second Appeal.
2. The point to be decided turns on the meaning to be given to Section 9, Clause 1 of the Act, which runs as follows:
If from any cause no councillor is elected at an ordinary election held under the previous section the retiring councillor shall, if willing to serve, be deemed to have been re-elected.
3. Dr. Swaminathan, the learned Counsel for the plaintiff, argues that we ought to hold that an election has been held under the preceding section but that it ended in no councillor being elected. He lays stress on the words 'if from any cause no councillor is elected' for his contention that the section covers all cases where elections have been contemplated but on account of various irregularities committed by the chairman or by others no councillor was elected. We are unable to agree with this contention. The section seems to apply only to cases where a valid election has been held under the previous section. The scheme of the Act shows that an election begins by the chairman fixing certain dates and ends with the date on which the polling is fixed. If serious irregularities going to the root of the proceedings happen in the course of such election, it may be that the election must be considered void, and in such cases it cannot be said that an election has been held within the meaning of Section 9(1). In the present case the existing member was anxious to declare his intention to continue as a member on the 1st October, that is, three days before the date fixed for the polling. One must wait until the lapse of that day to be able to say that an election has been held. Where one does not wait until that day it cannot be said that an election has been held. The result is nobody is in a position to state on the 1st October that a valid election has been held and that no councillor has been elected. It is not necessary for us to consider the remarks made by the learned District Judge on the language of Section 9. It is enough to say that we do not think that the words 'an ordinary election held under the previous section' are redundant. There may be cases where an election may be properly held without any councillor being elected. A simple case is where all the voters for some reason or other do not go to the polling station to exercise their franchise. Other cases may be conceived. We agree with the conclusion arrived at by the learned Judge in considering that this is not a case to which Section 9 applies.
4. The Second Appeal fails and is dismissed with costs.