1. The petitioner asks this Court to set aside the order of the lower Court in O.P. No. 7 of 1924 on its file. That was a petition under the Election Rules framed under the Madras District Municipalities Act, V of 1920, to set aside the election of the present petitioner held on 11th February 1924 for a ward in the Erode Municipality, and for other incidental reliefs.
2. The lower Court found that the petitioner, who was the Vice-Chairman of the Municipality and was acting as Chairman during the temporary absence of the Chairman, had broken Rule 32 of the rules for the conduct of elections of Municipal Councillors, in that he, in the matter of the nomination of candidates for the vacancy in this ward, had himself scrutinised and passed his own nomination paper. Whether in thus holding that there was a breach of Rule 32 he did find at all or did properly find that this violation had materially affected the result of the election and, therefore, he had jurisdiction to set aside the election, is the chief point argued before Rs.
3. At one stage in its order the lower Court seems to hold that the mere breach of the rule itself rendered the election void and, therefore, 'there is no need to consider whether the result of the election was materially affected.' Later on it holds that, as the result of the petitioner's breach of the rules was that voters voted for a candidate who was not validly nominated, the result of the election was materially affected. The two findings seem different aspects of the same conclusion rather than two different conclusions.
4. One of us, Wallace, J., as already held in a case reported as Ahmad Thambi Maricair v. Bavasa Maracayar 72 Ind. Cas. 902 : 46 M. 123 : 16 L.W. 898 : (1922) M.W.N. 813 : 44 M.L.J. 69 :A.I.R. (1923) 254 that a breach of the Election Rules will not in itself justify an Election Court holding that the election is invalid and must be set aside. It has to be further proved that that breach of the rules materially affected the result of the election. That follows from the plain words of Rule 11 of the 'Rules for decision of disputes as to the validity of an election.' We have heard nothing now in the argument to induce us to modify that opinion. It does not then follow that a breach of the rules regarding the nomination ipso facto renders void or invalid the election carried through by means of such a breach. There is no rule which says so and if a breach of any such rule automatically carried with it the invalidity of a nomination or candidature so that the election following thereon would be invalid also, Rule 11 is a superfluous rule. The result of the election, therefore, must be affected in some other way than by the mere breach of the rule, that is, the breach must, in itself have resulted in and produced some other result which has in it self the effect of invalidating a candidature or a nomination or an election, as for example, the breach must have resulted in the candidature of some one incompetent to stand or the nomination of some one who could not be validly nominated. The real question, therefore, which the lower Court had to put to itself was, supposing that the rule now found to have been broken had not been broken and the nomination proceedings had been conducted by the proper authority properly constituted under Rule 32, would the result, namely, the petitioner's nomination, have been different? Would the petitioner's nomination have been invalid either because he was incompetent to stand for election at all or because his nomination paper was in some way defective, or would the result have been just what it was, namely, that the petitioner's nomination was valid and his candidature proper? If the latter, we find it impossible to hold that the result of the election was materially affected by the breach of the rules. We are clear also that the lower Court had not looked at the case from that point of view. It has simply held that as there was a breach of the rules, therefore, the nomination was invalid and, therefore, an election comprising an invalid nomination was itself invalid and its result was, therefore, materially affected. The next point is whether this failure of the lower Court to look at the question from the right point of view is a mere question of an erroneous interpretation of Rule 11 on which the Court has jurisdiction to come to a wrong as well as a right interpretation, or is a matter of the exercise of jurisdiction with material irregularity so as to give this Court jurisdiction to interfere under Section 115 of the C.P.C. It appears to us that this is a case where there is no evidence before the lower Court on which it could come to a finding that the result of the election had been materially affected. The evidence before it was only on the question whether the rules had been broken and the Court found that the rules had been broken. It has really not proceeded further than that, and there was no evidence before it to justify any further finding. The lower Court's finding, therefore, that the result was affected was a finding based on no evidence and contrary to Rule 11, and it has, therefore, exercised its jurisdiction with material irregularity. This case appears to us one really of the same complexion as Ahmad Thambi Maricari v. Bavasa Maracayar 72 Ind. Cas. 902 : 46 M. 123 : 16 L.W. 898 : (1922) M.W.N. 813 : 44 M.L.J. 69 : A.I.R (M.) 254. We are not impressed with the argument of respondents that the general principle of law that a man shall not be a judge in his own cause should be applied and will if applied, lead to the result that the Vice-Chairman's proceedings are wholly illegal and invalid and, therefore, the whole election is invalid. That is to introduce a principle at variance with Rule 11. We are not also clear why this salutary principle should punish the innocent with the guilty and invalidate nominations of other candidates than the Vice-Chairman's equally with the Vice-Chairman's himself. It was obviously to prevent such untoward results that Rule 11 was enacted.
5. The respondents have contended that by force of Section 49 of the Madras District Municipalities Act the Vice-Chairman is incompetent to stand for election because he is an 'officer' of the Municipality, and the lower Court in a sort of aside in para. 12 of its orders seems to accept this contention. It is not very clear whether it considers its finding on this point as sufficient to justify a conclusion that the result of the election had been materially affected, but even if it did, we think here also it has erred in jurisdiction. Its inference no doubt will be correct in law if the Vice-Chairman were an 'officer' of the Municipality within the meaning of Section 4(a) but it is quite clear that he is not. Rule 32 itself clearly contemplates that the Vice-Chairman may himself be a candidate for a ward while he is the Vice-Chairman; and so may the Chairman. Section 12, Sub-section 5 of the Act would also imply that it is not necessary for the Chairman or the Vice-Chairman to resign their posts before they can stand for election as Councillors. This again is not a case of a mere mistake in interpretation of Section 49. It is the question of whether the Vice-Chairman is or is not within the meaning of the word 'officer' in that section, and as we have already pointed out Rule 32 it self makes that point quite clear and the lower Court cannot legally base its finding that there has been a breach of Rule 32 on a ground which Rule 32 itself contradicts. The Rule must be accepted or rejected in its entirety.
6. The lower Court has found also that the rule directing that four days, notice of the poll should be given has been violated. But there was no evidence before it that this violation has affected the result of the Election. The lower Court has not in fact recorded any finding that this violation of the rules affected the result of the election, nor has it set aside the election because of its finding on this fact. Its order, therefore, setting aside the election is not based on this finding.
7. The petitioner has argued that Rule 32 does not apply at all when there is a Chairman appointed but he is temporarily absent. He contends that the rule applies only when there is no Chairman appointed at all. But it is quite a plausible and reasonable interpretation of Rule 32 that it applies when there is no Chairman in charge, that is, when there is an appointed Chairman but he is temporarily absent. In any case, we consider that the point is a mere matter of the interpretation of this particular rule, and, unless that interpretation was unreasonable or perverse, a mere erroneous interpretation by the lower Court is a matter quite within its jurisdiction and would not amount to material irregularity in the exercise of jurisdiction. We are not prepared to hold that the lower Court in so interpreting Rule 32 exercised its jurisdiction with material irregularity.
8. However, as we find, for reasons already given that the lower Court has not really decided the question whether the result of the election was materially affected, the lower Court's order cannot be supported, and must be set aside and the case sent back to it to be re-heard in the light of the remarks that we have made above as to whether the result of the election has been materially affected by the breach of the rules which it finds did occur. We order accordingly and direct the costs to abide the result.
9. This disposes also of the memorandum of objections.