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D.A. Kandasami Chettiar Vs. G.F.F. Foulkes - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad396
AppellantD.A. Kandasami Chettiar
RespondentG.F.F. Foulkes
Cases ReferredNell v. Longbottom
Excerpt:
.....district board and who have lost their membership of the district board by non-attendance at the taluk board and losing the membership of the taluk board and whose restoration to the membership of the taluk board does not, according to my view, restore them to the membership of the district board. if the petition cannot now be allowed to be amended, it is obvious that the petition must fail. 767 was passed, there is a section (section 84) which shows that an election petition did not come under the scope of section 42 of the english act similar to section 35 of the indian act, and that in the indian act there is no section similar to section 84. he also urged that it is inconvenient to hold that the acts, of a board the members of which consist of persons like mekha pillai in this case..........the members of a board at the meeting at which they were restored ; (2) that they ought to take a fresh oath of allegiance and until a fresh oath of allegiance was taken, they cannot exercise the functions of members of the district board and in this ease no such fresh oath or allegiance was taken.2. the district judge was of opinion that these members were not disqualified and their membership did not cease as they were not absent for three consecutive meetings. it appears that four of them were absent from one meeting and the fifth absent from two consecutive meetings, but in two of the three months preceding the meeting of the 29th july, the board had not met at all, infringing rule 1 of the rules regulating the proceedings of local board (sch. ii of the act). it is unnecessary to.....
Judgment:

Ramesam, J.

1. This is a revision petition against the order of the District Judge of Salem refusing to set aside the election of the President of the District Board of Salem held on 29th July 1924. The first ground alleged in the petition and repeated before me here is that five of the voters, namely, Arunachalla Goundan ; 2. Bommanna Chetty ; 3. Rahu ; 4. Chinappa Goundan ; and 5. 'Vasudeva Reddi have ceased to hold their office as members of the District Board by reason of their non-attendance at the meetings of the District Board for three consecutive months. Four of these were elected and one was nominated. Though all the five were restored to their office by a resolution of the Board under Section 56(4) of the Act, it it said (1) that they cannot exercise the functions of the members of a Board at the meeting at which they were restored ; (2) that they ought to take a fresh oath of allegiance and until a fresh oath of allegiance was taken, they cannot exercise the functions of members of the District Board and in this ease no such fresh oath or allegiance was taken.

2. The District Judge was of opinion that these members were not disqualified and their membership did not cease as they were not absent for three consecutive meetings. It appears that four of them were absent from one meeting and the fifth absent from two consecutive meetings, but in two of the three months preceding the meeting of the 29th July, the Board had not met at all, infringing Rule 1 of the rules regulating the proceedings of Local Board (Sch. II of the Act). It is unnecessary to consider this question as the members were all restored to the office and as I have come to the conclusion that the other objections against their membership cannot stand. If, at the meeting of the 29th July, they were first restored to membership and afterwards the Board proceeded to the election of the President, I do not see any thing irregular or illegal in this procedure. Therefore, there is no substance in the first ground.

3. The second ground is that a fresh oath of allegiance must be taken. The effect of the restoration of a member, though it may not be retrospective as to make him a member of the Board during the preceding three months or so as to restore to him any privileges besides the mere membership such as presidentship or vice-president ship which he lost along with the membership, as was held by me n Devasign money v. Sethuratna Iyer A.I.R. 925 Mad. 1034, is certainly to restore him to the office of membership for the balance of the period for which he was originally elected or nominated. It is not that he becomes & new member getting a fresh full period of office from the date of the restoration. Whenever there is a fresh election or fresh nomination no doubt a fresh oath of allegiance ought to be taken. But in the case of a restored member he is restored to his. former membership, that is, the membership he previously had by election or by nomination completed by the oath of allegiance which he had previously taken. If it be said that he does not get the benefit of the prior election or nomination and the oath which he had taken, it would be creating a fourth class of members not contemplated by the Act. The Act contemplated only ex officio members, elected members and nominated members. It is clear, therefore, that the restoration makes him the elected or nominated member he previously was. If so, he gets also the benefit of the previous oath of allegiance. I do not think, therefore, there is any substance even in the second ground. The result is, that, so far as these five voters are concerned, the petition fails.

4. The next ground taken is that one Mekha Pillai a member of the Taluk Board Salem who had been elected to the District Board lost his membership of the Taluk Board by absence for three consecutive months and thereby lost his membership of the District Board also. He was then restored to the membership of the Taluk Board, by a resolution of the Taluk Board dated the 29th of March 1924. The contention is that the resolution of the Taluk Board cannot; have the effect of restoring him to the membership of the District Board which he lost. On this matter I do not agree with the view taken by the District Judge that the restoration of Mekha Pillai to the membership of the Taluk Board also restores him into the membership of the District Board. I adhere to the view 1 have taken on this matter in my judgment in Devasigamoney v. Sethuratana Iyer A.I.R. 925 Mad. 1034 But this does not help the petitioner for the respondent got 22 votes, and the petitioner got 19. is the first place, it is not clear that Mekha Pillai voted for the respondent : vide the judgment of the District Judge in para. 8. But assuming that he voted for the respondent and that his vote is invalid the respondent has still got a majority.

5. The next objection taken is that there are two cases like the case of Mekha Pillai and others who were elected to the District Board and who have lost their membership of the District Board by non-attendance at the Taluk Board and losing the membership of the Taluk Board and whose restoration to the membership of the Taluk Board does not, according to my view, restore them to the membership of the District Board. This objection was not taken in the original petition. It was sought to be introduced into the case by an application for amendment dated the 1st November, that is during the hearing of the petition. Though 1 do not hold that an application for an amendment of the petition filed after the expiry of the days allowed for an objection petition is never maintainable and I think that such an amendment petition may, in the discretion of the Judge, be allowed, even after the expiry of that period, I cannot say that the discretion has been improperly exercised by the District Judge in this case. If the petition cannot now be allowed to be amended, it is obvious that the petition must fail.

6. It has been contended by Mr. Varadachari who appeared for the respondent that Section 35 of the Act cures all the above defects in the election alleged by the petitioner. I adhere to the view I ex-pressed in Devasigamoney v. Sethuratna Iyer A.I.R. 925 Mad. 1034. Mr. Varadachari has called my attention to Section 57(3) and to the fact that the English Act, on which the decision in Nell v. Longbottom [1894] 1 Q.R. 767 was passed, there is a section (Section 84) which shows that an election petition did not come under the scope of Section 42 of the English Act similar to Section 35 of the Indian Act, and that in the Indian Act there is no section similar to Section 84. He also urged that it is inconvenient to hold that the acts, of a Board the members of which consist of persons like Mekha Pillai in this case are invalid. I agree with this view in all acts of the Board other than election, Section 35 cures such a defect. But I do not think that Section 35 applies to an election petition. I think the rules regarding election petition allowing the improper receipt or refusal of a vote to be questioned correspond to Section 84 of the English Act. Were it not so, the election petition becomes a farce. 1 do not think that Section 57(3) can help us in this matter. It relates to the case of a dispute being raised as to the membership of a member himself and provides that he should be deemed a member pending such decision.

7. But, as I have already held, the petition must fail and is, therefore, dismissed with costs.

8. Order will follow.


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