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O.A.O.K. Latchmanan Chettiar Vs. J.S. Kannappar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1926)51MLJ738
AppellantO.A.O.K. Latchmanan Chettiar
RespondentJ.S. Kannappar and ors.
Cases Referred and Hobbs v. Morey
Excerpt:
- - withdrawing his powers which was subsequent to his nomination, and that therefore the nomination was bad. we are of opinion that this rule only applies to cases where the reference made by the act or rule in question is clearly to the court, though functioning through the chief judge, and that it leaves untouched the real question which we have to decide, namely, whether this power was conferred by rule 4 made under the municipal act upon the chief judge as the court functioning through himself or upon him as persona designata. if the latter view is to prevail, there seems to be no good reason for granting an appeal to the chief judge or indeed to any other tribunal......a civil revision petition brought by rao bahadur latchmanan chettiar against an order made by the chief judge of the small cause court in the following circumstances. on the 17th august, 1926, the petitioner was nominated as a candidate for election as a divisional councillor for the 29th division of the city. it is not in dispute that the nomination paper was regular on the face of it but it was said that the petitioner was disqualified for these reasons. for some time past he had been an honorary presidency magistrate of the city. on the 11th august he tendered his resignation having in mind, no doubt, section 52(1)(b)(iv) of the madras city municipal act of 1919 which disqualifies a presidency magistrate which has been held to include an honorary magistrate for election as a.....
Judgment:

Murray Coutts Trotter, Kt., C.J.

1. This is a Civil Revision Petition brought by Rao Bahadur Latchmanan Chettiar against an order made by the Chief Judge of the Small Cause Court in the following circumstances. On the 17th August, 1926, the petitioner was nominated as a candidate for election as a Divisional Councillor for the 29th Division of the City. It is not in dispute that the nomination paper was regular on the face of it but it was said that the petitioner was disqualified for these reasons. For some time past he had been an Honorary Presidency Magistrate of the City. On the 11th August he tendered his resignation having in mind, no doubt, Section 52(1)(b)(iv) of the Madras City Municipal Act of 1919 which disqualifies a Presidency Magistrate which has been held to include an Honorary Magistrate for election as a Councillor. That resignation reached the Government on the 14th August and the Government passed a G.O. in the following terms:

The Governor in Council withdraws the powers of Honorary Presidency Magistrate for the City of Madras conferred on the undermentioned gentleman (i. e., the petitioner) who has resigned his appointment.

2. 'On the 20th August an objection was put forward by the respondents alleging that the withdrawal by the candidate from his appointment as Presidency Magistrate only took effect by virtue of the G.O. withdrawing his powers which was subsequent to his nomination, and that therefore the nomination was bad. The objection was heard by the Commissioner acting under Rule 4 hereinafter to be referred to of the Rules made under the Act and a petition was put in for revision before the Chief Judge of the Court of Small Causes under the same rule. Both officers pronounced the nomination to be invalid and struck his name off the list of nominations in accordance with Rule 3. Against that decision of the Chief Judge this revision petition is brought.

3. Two main points have been argued before us the first, which goes to the root of the whole matter, being that this Court has no jurisdiction to entertain any such petition, on the ground that the Chief Judge of the Small Cause Court is not a Court subject to the machinery of the Code of Civil Procedure but a persona designata whose decision was not only not appealable but cannot be called up in revision. It has been held by a Full Bench of this Court [Parthasarathi Naidu v. Koteswara Rao 46 M L J 201 (F B)] that the fact that his decision is not appealable so far from being a ground for holding that revision will not lie points decisively in the opposite direction. The appellant's contention as to the character in which the Chief Judge decided this matter depends partly upon a consideration of the relevant sections of the Municipal Act and the rules made thereunder, and partly on the effect of certain authorities which were cited to us. Section 59(2)1(b) of the Act provides that

the Governor in Council may make rules which may provide for the adjudication by the Court of Small Causes of disputes... arising out of elections.

4. In our opinion ' elections ' within the meaning of that section means completed elections which have resulted in the creation of a Councillor, and does not cover disputes arising before such election; but though Rule 4 with which we are primarily concerned purports to be made under Section 59, we are of opinion that it is rendered valid by the generality of the powers conferred on the Governor in Council by Section 347 of the Act, and that the rule is not vitiated by its description as having been made under a section which is not applicable. Rule 4 gives power to a registered voter to make an objection to the list of candidates. Thereupon the Commissioner is to give his decision on the objection in writing, which decision shall be final unless... a petition for revision is put in before the Chief Judge and in such cases it is argued that the Chief Judge acting under Rule 4 is in effect the Court of Small Causes functioning through him alone, and that his decision is therefore subject to revision. It is said that this position is confirmed by Order 1(a), Rule 6 of the Rules of the Small Cause Court, 1912. The rule runs as follows:

The Judges may sit apart or together at any time and any one or more of the Judges so sitting apart shall have all the judicial authority which is given to the Court by the principal Act or any other enactment for the time being in force, except in cases in which by such Act or other enactment or any rule or order having the force of law such powers are exercisable only by two or more Judges of the Court or only by the Chief Judge.

5. It shall be competent to the Chief Judge to direct that any application, petition or suit shall be heard by a Bench consisting of two or more Judges of the Court.

6. The argument is that if by any Act or rule a matter shall be referred to the Chief Judge alone, he is nevertheless acting as the Court. We are of opinion that this rule only applies to cases where the reference made by the Act or rule in question is clearly to the Court, though functioning through the Chief Judge, and that it leaves untouched the real question which we have to decide, namely, whether this power was conferred by Rule 4 made under the Municipal Act upon the Chief Judge as the Court functioning through himself or upon him as persona designata. Looking at the Municipal Act, it is clear that the draftsman of that Act was quite alive to the distinction between the Court of Small Causes (Section 59) and the Chief Judge of that Court (vide Section 54). It is difficult to resist the inference that when the Chief Judge is referred to in the Act he was meant to act as a persona designata and not as representing the Court. The Full Bench decision in Parthasarathi Naidn v. Koteswara Rao 46 M L J 201 (F B) was relied upon for the proposition that whenever jurisdiction is vested in the for the proposition that whenever jurisdiction is vested in the Judge as representing that Court. In that case a vesting of jurisdiction in a District Judge was held to be equivalent to vesting the jurisdiction in the District Court, thereby subjecting his decision to the revisional powers of the High Court. It was pointed out in a judgment of a Full Bench in the Rangoon Court, The Municipal Corporation of Rangoon v. M.A. Shakur ILR (1925) R 560, reviewing all the authorities with which we respectfully agree, that though that reasoning may apply to a Court, which by its constitution has only one Judge, it cannot govern a case where jurisdiction is conferred on a single rnem-ber, of a Court consisting of three Judges. It is obvious that words might easily have been used to indicate that while jurisdiction was conferred on the Small Cause Court, that Court should only function through its Chief Judge. We think that that distinction drawn by the Rangoon Court was correctly drawn and that nothing in the decision of the Full Bench in Parthasarathi Naidu v. Koteswara Rao 46 M L J 201 (F B) precludes us from holding, as we do hold, that under the Municipal Act and the Rules the Chief Judge for this purpose is persona designata and not merely a selected member of the Court chosen to represent it. That being so, we have no jurisdiction to entertain this revision petition, and it must be dismissed with costs.

7. But we think it is desirable that we should say a few words on the second point which was elaborately argued before us. The point was that the Commissioner and the Chief Judge were confined to questions of form, and that it was Entirely outside the ambit of their jurisdiction to enquire into grounds of disqualification which did not appear on the face of the nomination paper and would involve an enquiry into facts. The position of a Returning Officer in England is analogous generally to that of the Commissioner under the Madras Municipal Act, and it has been decided by a series of decisions in England, of which we need only cite Pritchard V. Mayor, etc., of Bangor (1888) 13 A C 241 and Hobbs v. Morey (1904) 1 KB 74, that the Returning Officer is only to decide objections arising out of the nomination paper itself and not to go into questions relating to the personal qualifications of the candidate. Under Section 52 of the Madras Act, among the disqualifications enumerated arc, that a person concerned is of unsound mind, or is interested in a contract with the Corporation. If the position be right that such allegations are to be investigated not after election but at the stage of candidature, the Commissioner might be faced with a series of elaborate enquiries relating to persons who might never reach the stage of election or appointment as a Councillor might indeed receive no votes at all. It is said that nevertheless the effect: of the Madras Act is to throw the burden of conducting such enquiries upon the Commissioner with regard to every candidate at the stage of nomination. In view of our decision on the main point, it is unnecessary to pronounce upon this question. But we think it desirable to point out the doubts that have been raised as to the effect of the Madras Act: and to suggest that it should be amended in a manner that shall make it clear whether it is intended to invest the Commissioner with the wide powers suggested by the respondents or to confine him to the purely ministerial function with which alone he would be clothed if the principle of the English cases is to be applied. If the latter view is to prevail, there seems to be no good reason for granting an appeal to the Chief Judge or indeed to any other tribunal.


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