1. The petitioner and the respondent were candidates for the office of President of the Union Board of Tiruthuraipundi. An election was held on 27th February 1928 for the office when 9 votes were polled. The petitioner got 5 and respondent 4. The petitioner was declared elected. The respondent filed an election petition before the District Judge, East Tanjore, who held that two votes polled for the petitioner were invalid votes as the members who gave the votes were disqualified members and in consequence the respondent was declared elected as President of the Union Board of Tiruthuraipundi. The petitioner has preferred this revision petition. There were 11 members on the Union Board of Tiruthuraipundi of whom two, Govindaswamy Thevar and Varadarajulii Naidu, failed to attend the meetings of the Board held on 20th September 1927 and 30th November 1927. They having failed to attend for three consecutive months the meetings of the Board, they ceased to be members of the Board under Section 56, Local Boards Act. They, however, attended the meeting of 23rd December 1927 ostensibly without any objection by the other members and they were restored to membership at the meeting held on 18th January 1928. The election meeting was on 27th February 1928. The District Judge held that these two persons ceased to be members before the date of the December meeting and they not having been restored to membership at that meeting, their subsequent restoration at the meeting of January was not a legal one and therefore they were not the members of the Board and consequently their votes were not valid votes.
2. Mr. Venkatarama Sastri for the petitioner contends that the District Judge had no jurisdiction to go into the question whether any of the members of the Board who took part in the election were or were not disqualified members. Before considering the question whether these men were qualified members or not we have to determine whether questions as-to the qualification of a member could be raised in an enquiry relating to the election of the President. In this connexion. we must consider what the rules governing the election are as well as the rules governing enquiries into the conduct of elections. The rules for the conduct of ejection of members to the Union Board' as well as the Taluk Board and District Board are framed under the Act and any enquiry into an election offence or an irregularity has to be governed by the rules framed for the conduct of elections under the Act. The rules for the election of Presidents and Vice-Presidents provide the course to be adopted for the elections. It is not necessary for the present purpose to consider the rules for the election of Presidents and Vice-Presidents, but it is necessary to consider the-rules for the conduct of enquiries and the decision of disputes relating to elections for the office of the President and the Vice-President.
3. After an election is over, it can be contested on several grounds set out in Rule 11. According to that rule an election maybe set aside on the ground of the commission of election offences, procuring the result of the election by corrupt practices or by hiring conveyance, etc.; and Clause (c) is as follows:
The result of the election has been materially affected by any irregularity in respect of a nomination paper, or by the improper reception or refusal of a vote, or by any non-compliance with the provisions of the Act or the rules made thereunder.
4. In this case the only portion of Rule (c), which is applicable, is the phrase ' by the improper reception or refusal of a vote. ' The question narrows itself to this: whether in this case there, was an improper reception or refusal of a vote. If there was no improper reception or refusal, then Rule (c) would not apply to the case. What is considered to be the improper reception of the vote is the acceptance of the two votes of the so-called disqualified members. The phrase improper reception or refusal ' means only improper acceptance of a vote, which is on the face of it invalid, or refusing to accept as proper, a vote which is really proper. It is argued by Mr. Krishnaswamy Ayyar that the improper reception should also include the reception of a vote of a disqualified person. At the first blush it may appear to be a proper contention. We must see what the policy of the Act is and what is the policy which governs the rules. In the case of voters a voters list is final. At an election enquiry the qualification of a voter cannot be gone into, for opportunity is given to voters and others to object to the correctness of the electoral roll before it is finally published, and if people do not take the trouble to prefer objections and get the electoral roll corrected, they cannot afterwards complain of any irregularity in its preparation.
5. It is unnecessary to dwell at this portion of the case at any length, for the rule clearly lays down that the electoral roll shall be final. But in the case of members of the Board, there is no such roll. It is argued, and very properly argued, by Mr. Krishnaswamy Iyer that there is no rule with regard to the list of members and therefore the rule as to electoral roll cannot apply to the present case. No doubt there is no rule which provides for the preparation of a members list; but when persons are allowed to act as members and the President issues notice to the members to attend the Board meeting, and at the meeting, if they give their votes, the votes cannot be disqualified on the ground that there was a disqualification attaching to the member. Whenever there is any 'disqualification attaching .to a member (such disqualifications are set out seriatim in Sections 55 and 56) and when there is a dispute as to whether a member is qualified or not the course as provided under Section 57 for settling the dispute has to be pursued. Section 57 runs as follows:
Whenever it is alleged that any person who has been elected or appointed as member of a Local Board is disqualified under Section 55 or Section 56 and such person does not admit the allegation, or whenever any member is himself in doubt whether or not he has become disqualified for office, such member or any other member may, and the President, at the request of the Local Board, shall apply to the District Judge of the district in which the area of the Local Board is situated.
2. The said Judge, after making such enquiry as he deems necessary, shall determine whether or not such person is disqualified under Section 55 of Section 56, and his decision shall be final.
6. The two persons mentioned above-attended the meeting held in December and they were restored to their office at the January meeting and they took part in the election at the February meeting. It is contended by Mr. Krishnaswamy Iyer that the restoration of these persons at the January meeting was ultra vires and therefore they were not members at all. The restoration of a member who has vacated his seat owing to non-attendance for three consecutive months under Clause (h) of Section 56 is provided for by Clause (4) of Section 56 and therefore the Board is competent to restore a member to office, the only condition being that the restoration shall be at the next meeting. It cannot therefore be said that the Board acted ultra vires in restoring these persons. I reserve for consideration the question whether they ought or ought not to be restored at the next meeting- They were restored rightly or wrongly to their office and they acted as members. That being so, their names were found in the list,, Ex. B, which was issued by the President of the Board for the election and the officer who conducted the election, was not entitled to go behind the list that was supplied to him and reject any vote on the ground that the person whose name was mentioned in the list was a disqualified person and, if he was not entitled to reject that vote, I find it difficult to see how the Court which holds an enquiry into the conduct of the election can say that that vote has been improperly received. In this connexion it is urged for the respondent that if the President or the candidate brings any two persons from the street who have nothing to do with the Board and if their votes were received, would the Court be. prevented from considering whether they are legal or not. This argument overlooks the fact that their names would not be found in the list supplied to the polling officer, and if such persons are not members or were never member's, their votes cannot be said to be votes of members. The two persons named above were elected to the Board and their election was duly notified and under the law they were entitled to hold office for three years. By their non-attendance for three consecutive months at the meetings of the Board, they ceased to be members under Clause (h) of Section 56 but that clause is again subject to the power of the Board to restore them to office.
7. Mr. Krishnaswami Ayyar, strongly relies upon Nell v. Longbottom  1 Q.B. 767 and Bland v. Buchanan  2 K.B. 75, as supporting his contention that the Court which holds an election enquiry is entitled to consider the qualification of the member who votes at an election. In Nell v. Longbottom  1 Q.B. 767 it was held that where a person was disqualified under the law to register a vote, the disqualification of the voter could be gone into in a petition challenging the validity of an election. This case was followed by Justice Darling in Bland v. Buchanan  2 K.B. 75. These two cases have no application to the present case, as Section 87, Municipal Corporation Act 1882, 45-46 Victoria, Ch. 50, distinctly lays down that all Municipal elections may be questioned by an election petition on the ground:
(b) that the election was avoided by corrupt practices or offences against this part committed in the election; or (c) that the person whose election is question was at the time of the election disqualified, or (d) that he was not duly elected by a majority of lawful votes.
8. Seeing that Section 87 distinctly lays down that any Municipal election may be questioned on the ground that the person whose election is questioned was at the time of the election disqualified and that he was not duly elected by a majority of lawful votes the Court could consider not only the qualification of the candidate but also the lawfulness of the vote. It was contended in Nell v. Longbottom  1 Q.B. 767 that Section 42 of the Act which validates acts done notwithstanding the disqualification was a bar to an enquiry into the lawfulness of the vote. Justice Cave in delivering the judgment of the Bench observed, after referring to Section 42 (1):
When, however, we refer to Section 87, Sub-section (1) which provides that a Municipal election may be questioned by an election petition on the ground that the person whose election is questioned was not duly elected by a majority of lawful votes it is clear that, although in ordinary cases the act of an unqualified person could not be questioned on an election petition, the question whether a particular vote is a lawful vote is intended to be raised and decided.
9. In Rule 11 (c) the word 'lawful' is not used before the word 'vote.' This evidently has escaped the notice of my brother Ramesam, J., when he delivered the judgment in the case reported in Devasigamony v. Sethuratna Iyer : AIR1925Mad1034 . As already remarked, Clause (c) of Rule 11 speaks only of improper reception or refusal of a vote and there is no question of the lawfulness of the vote. That being so, the English cases cannot apply to the present case. In Devasigamony v. Sethuratna Iyer : AIR1925Mad1034 this question did not actually arise. The question there was whether a President of a Taluk Board who was an ex-officio member of a District Board and who subsequently ceased to be President of the Taluk Board also ceased to be a member of the District Board notwithstanding the restoration to the Taluk Board. In considering that question no doubt Ramesam, J., observed that the Court could go into the question of the competency of the disqualification of a voter. He observes at p. 367, (of 87 I. C).
I, therefore, decide that the validity of the vote of Mr. Pethachi Chettiar can be and ought to be decided in the election petition.
10. With very great respect I am unable to follow this dictum. In the Palni case which I disposed of some time ago I held that it was not open for a Court which holds an enquiry into an election petition to go into the question of the qualification of the candidate after the nomination paper was accepted. The decisions of Wallace, J,, in Soobbaroya Goundan v. Muthukumaraswami Goundan A.I.R. 1926 Mad. 1001 and Ramesam, J., in Kandaswami Chettiar v. Foulkes : AIR1926Mad396 do not touch the present point.
11. It is urged that the qualification of a voter must be gone into in this enquiry because without considering that the validity of the election cannot be considered. Whether a person is a member or not, the doubt of his being a member can be determined by a proper proceeding under Section 57 and when that course was not adopted, is it open to a Court which holds an election enquiry to go into the I question which might and ought to have been determined before a different forum. Section 57 prescribes the forum for the determination of such questions and in the absence of an enquiry under that section the Court which holds the election enquiry must accept the persons who act as members as members. The object of the election rules both under the District Municipalities Act, as well as the Local Boards Act, is to prevent the defeated candidate from raising questions as to the qualification of voters whose names are on the roll of voters and the Court is not permitted to embark upon an enquiry into questions which could have been and ought to have been decided before the final electoral roll is prepared. Similarly, in the case of members of the Board, whether they be members of the Taluk Board, or District Board or Union Board, it is not open to the Court which, holds an enquiry to consider the question of the qualification of the members which as I said, could have been or ought to have been raised and determined before a different forum. The candidate for the President's place, as in this case, could have moved the District Judge after the January meeting. It is opposed to all principle to allow either of them to raise an objection to the qualification of the members when they could have done so before and it is but putting a premium upon pettifogging to allow the defeated candidate to raise such an objection when he finds that the members whose qualification he could have questioned before, but whom he expected to vote for him did not vote for him but for the other candidate. Apart from the morality of the thing it is not the policy of the Act or the rules framed under it to allow such an objection to be raised in an election enquiry which is confined according to rules to irregularities and illegalities in the conduct of the election itself and not to anything antecedent to it.
12. The next question is whether these two persons were properly restored to office or not. Section 56, Clause (4), runs as follows:
In the case of a person who has ceased to be a member in consequence of failure to attend meetings, the matter shall be reported by the President at the next meeting of the Local Board which may at that meeting restore such person to office.
13. When the law prescribes that at the next meeting of the Board such persons may be restored to office, it is not open to the Board to restore them at any future time. It is asked what is to happen if the President of the Board whose duty it is to report the failure of members to attend meetings of the Board, does not do so. If the President does not inform the Board, it is open to any one of the members to bring it to the notice of the Board at its meetings and have the persons restored. The delinquency of or failure to do his duty by the President would not be a sufficient ground to overlook the plain meaning of Clause (4), and interpret it in a way different from its plain meaning. If the restoration is not to be at the next meeting a person who failed to attend two meetings for three consecutive months in 1927 might be restored in 1929. There is nothing to prevent a Board from doing that. Such an action would be irregular. But Mr. Krishnaswamy Iyer's contention is that such a restoration would be ultra vires. This contention I am not prepared to uphold. It is within the power of the Board to restore a member to the Board if he fails to attend for three consecutive months more than one meeting of the Board. But the mere exercise of the power at the time not mentioned in the Act would not make it ultra vires. It would only make it irregular. In this view it is unnecessary to consider the cases relied upon by Mr. Krishnaswami Ayyar such as Attorney General v. Great Eastern By. Co.  5 A.C. 473.
14. In this case the two members were no doubt restored to office. But the restoration was an irregular one. Mr. Venkatarama Sastriar, contends that the provisions of Section 56 are subject to the provisions of Section 57 and till the District Court determines whether they have been properly restored to office or not they should be considered as qualified members under Clause 3, Section 57. If a petition is presented under Section 57, no doubt till the disposal of the petition the person whose qualification is challenged remains a qualified member but that does not mean that the person who has already vacated his seat by reason of the failure to attend for three consecutive months more than one meeting, becomes a temporary member till the disposal of the petition. Whereas in this case the persons have been restored to membership and if the legality of the restoration is unquestioned till the question is decided by the District Judge they continue to be members.
15. As regards the corporate act of the Board itself, Section 35 provides that the disqualification of any member would not invalidate the action of the Board. But the election of a President is not a corporate action of the Board and, therefore, Section 35 cannot apply to an election like this. But in the view that I have already expressed, it is unnecessary to consider whether these persons continued to be qualified members till the disposal of a petition under Section 57.
16. Another question which has not been raised in the lower Court is this: Whether a Court which holds an election enquiry can allow evidence to be adduced before it as to the way in which a voter voted? The ballot in this case was a secret one. According to Rule 4 the voter shall then proceed to the place set apart for the purpose and there place a mark against the name of the candidate for whom he wishes to vote. He shall then fold up the slip so as to conceal his vote and deposit the same in a ballot-box placed in the view of the President or the presiding member. The ballot being a secret ballot, it is not open to the voter to disclose for whom he voted, nor is it open to an election Court which holds an enquiry to ask any voter as to the way in which he voted. It is open to the election Court to ascertain whether the person who voted was a voter or not and if he was, whether his name was in the list. But to allow the candidate to question the voter as to whom he voted for, is I think not permitted even though not express by any rule framed under the Act. In 35 and 36, Victoria Ch. 33, Sections 12 and 4, it was laid down that a voter shall not be compelled to disclose for whom ha voted.
17. The very object of the secret ballot is to prevent the knowledge as to how the vote was cast being published and the mere fact that a person presents an election petition objecting to the election of a candidate does not empower the Court to allow evidence to be given as to how a voter voted. If such a course is allowed, any defeated candidate might cite almost all the voters to come and say for whom they voted. Apart from the difficulty of checking the correctness of the statement, where a voter does not sign his name and there being no other means of identifying the vote, it is opposed to public policy to allow a person who voted secretly to declare afterwards that he voted for X or Y. The danger that I have indicated is seen in this case. The voter who is said to have voted for the petitioner said that he voted for the respondent and the District Judge had to disbelieve him. It is outside the province of an election Court to allow any candidate to examine the voters to show how the voters voted. The Court is only entitled to consider as already observed the correct reception and the correct refusal of the vote.
18. Mr. Krishnaswamy Iyer contends that the lower Court made only a mistake in interpreting the law and, therefore, a petition under Section 115, Civil P.C., does not lie. I think in this case the District Judge not merely committed an error of law but did things which he had no jurisdiction to do. In the first place he allowed evidence to be given as to how a member of the Board voted and secondly being not empowered under the election rules to go into the question of the qualification of a member, he considered this qualification. That being so, a question of jurisdiction arises and this Court is entitled to deal with it. In the result the petition is allowed and the order of the lower Court is set aside with costs-here and in the Court below.