1. This matter relates to the election of a member to the District Board of Ramnad for the Pallathur Circle. The election was first fixed for the 23rd November, 1936. On that date the poll at one of the fourteen polling booths was stopped by the polling officer under Rule 24-B (1) of the Election Rules. The Election Authority on being notified of this, referred the matter for the orders of Government. Government passed orders on the 3rd December for the holding of a fresh poll at all the polling booths, stating it to be their conclusion after enquiry that there had been systematic interruption of the polling at all the polling stations. The date for this fresh poll was fixed by the Election Authority as 14th December. On that day polling proceeded, normally, and in due course Mr. Venkatachalam Chettiar (the present petitioner) was declared elected. The defeated candidate Mr. Nagappa Chettiar (the present respondent) thereupon filed a petition before the Election Commissioner (principal Subordinate Judge, Madura) who held that the order of Government was ultra vires, and the election of the 14th December therefore void except in so far as it concerned the one polling-booth where polling had been stopped in November. The Election Commissioner further ordered that the votes cast in the other thirteen booths irt November should be counted, and on the result ascertained by this count and by the polling in the one booth in December, he declared Mr. Nagappa Chettiar to be elected. Thereupon Mr. Venkatachalam Chettiar moved this Court to issue a writ of certiorari.
2. The question for our decision is whether the Election Commissioner had any jurisdiction to pass the orders which he has passed. It is clear that Mr. Nagappa Chettiar had no complaint to make with regard to the actual conduct of the election on the 14th. He attacked it solely on the ground that it ought never to have been ordered. The Election Commissioner therefore can have jurisdiction only if the order of the Government is either ultra vires of the election rules or mala fide.
3. That the Government's order was ultra vires, it seems to us to be impossible to maintain. It was passed under Rule 35. Sub-section (2) of the rule, omitting unnecessary words, runs as follows:
Pending...the issue of final orders on any enquiry which the local Government may institute upon receipt of information that an election is being.... held in contravention of the rules, it shall be lawful for the Local Government to direct the stay of the election proceedings at any stage thereof prior to the declaration of the results.
4. This sub-section obviously contemplates the following:
(i) Government may hold an enquiry;
(ii) They may hold it at any time before the results are declared; and (w) They may pass final orders on their enquiry.
5. In the present case the Government state that they have held an enquiry, they did hold it before the results were declared, and they have passed final orders. We are unable to see how these orders can be questioned on the ground that Government had no power to pass them.
6. It was argued by Mr. Venkatarama Sastri for the respondent here that when once votes have been cast into the ballot box and the hours of polling are over the jurisdiction of Government ends and the jurisdiction of the Election Commissioner begins. But this argument overlooks the clear statement of Rule 35(2) that 'Election proceedings' continue and may be stayed by Government at any time before the results are declared --and of course, the rules for the enquiry by the Election Commissioners into election petitions show clearly enough that until results have been declared there is nothing for an Election Commissioner to enquire about. We repeat therefore that Government were within their rights in passing the order of 3rd December.
7. Mr. Venkatarama Sastri then proceeds to argue that even if Government had the power to order a fresh election the Election Court can come to its own conclusion whether the order was justified or not justified on the facts. But this view is contrary to the law of interference on revision and we are unable to accept it. As stated already respondent must now fail, unless he can show that Government's order was passed mala fide. On this point though Government's order is referred to and attacked on the ground of illegality in the petition to the Election Commissioner, there is no positive assertion whatever. We find accordingly that as Government's order was not ultra vires, and was not asserted to be mala fide it was beyond the jurisdiction of the Election Court to consider it on its merits. The Election Court has therefore acted without jurisdiction in setting aside the election of the petitioner on the 14th December, and in declaring the respondent elected, and we must quash its orders. First respondent must pay petitioner's costs. Vakils fee Rs. 150.