1. This is an appeal by the plaintiff in a suit for declaration of the invalidity of a Municipal election and for a permanent injunction to restrain the successful candidates from acting as Municipal Commissioners.
2. The plaintiff Shyam Chand Basak, the second defendant Bhagabat Prasanna Saha and the third defendant Nabendra Nath Basak were candidates for election as Commissioners for a period of three years for Ward No. 3 at the Dacca Municipal Election, held on the 31st July 1918. The first defendant is the Chairman of the Municipal Commissioners of Dacca. The election was held on the day prescribed and Mr. Dwijendra Nath San of the Provincial Executive Service acted as presiding officer. The total number of registered voters was 1287, each of whom had two votes, 686 persons recorded 1372 votes. The result of the election was announced as follows:
Bhagabat Prasanna Saha ... 627 votes.Nabendra Nath Basak ... 509 'Shyam Chand Basak ... 236 '
3. The two defendants were thereupon declared duly elected as Municipal Commissioners for the Ward. On the 7th September 1918 the plaintiff, who had been unsuccessful at the election, instituted the present suit and attacked the legality of the election on a number of grounds. The defendants filed separate written statements, denying all the material allegations. Seventeen issues were thereupon raised, and the Court, after a protracted trial, came to the conclusion that the election had been held in contravention of the rules and was consequently illegal and void. The suit was decreed and a perpetual injunction granted against the candidate defendants restraining them from sitting on the Municipal Board and exercising the f emotions of a Municipal Commissioner. The two defendants lodged separate appeals against the decree. The District Judge has allowed the appeals and dismissed the suit. In the view we take of the matter, it is necessary for us to deal with only one of the objections urged against the legality of the election.
4. Sections 15 and 69 of the Bengal Municipal Act, 1884, authorise the Local Government to frame rules for Municipal elections. The rules in force at the time of the disputed election contained the following provisions relating to the manner of holding elections.
17. The poll shall be held at such time and place as the Commissioners in meeting or the Chairman may determine, and the place at which and the hours between which votes will be recorded shall be notified, by beat of drum and by the publication of notices, at the same time as the list of candidates is published under Rule 14.
17A. After the second hour mentioned in the notice referred to in the last preceding rule, no elector shall be admitted within the building or inclosure within which the election proceedings are being held, but the votes of all duly registered voters, who are already within the building or inclosure shall be recorded.
5. In accordance with Rule 17, the Chairman determined the hours between which votes would be recorded as fellows:
7-30 a. m. ... ... 11-30 a. m.3-30 p. m. ... ... 6-30 a. m.
6. It has been found that the presiding officer did not arrive at the place of election till 7-45 a. m. and that the hours between which votes were recorded were as follows:
8-30 a. m. ... ... 12-40 p. m.3-00 p. m. ... ... 6-30 p. m.
7. The gates were shut at 6-30 p. m., but all voters who had entered the premises before 6-30 p. m. were allowed to record their votes under Rule 17A; this in fact went on till late at night. There is no controversy now that the hours between which the votes were Actually recorded were not exactly identical with the hours as determined under Rule 17: the recording commenced later, went on later during the first half of the day, and commenced earlier during the second half of the day. The question thus arises, whether the validity of the election has been affected by this circumstance. The Courts below have arrived at divergent conclusions upon the matter. The primary Court held that the election was vitiated, as the rule had been substantially infringed. The lower Appellate Court has held that the election cannot be successfully impeached on the ground mentioned, as the plaintiff had not satisfied the Court that the election has been affected by the infringement of the rule. We are of opinion that neither of these views can be supported.
8. The principles applicable to questions of the invalidity of elections by reason of the infringement of election rules were lucidly stated by Kennedy and Darling, JJ., in the Islington case (1901) 5 O'M. & H. 125:
An election ought not to be held void by reason of transgressions of the law, committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election, where the Court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is, the success of the one candidate over the other, was not, and could net have beer, affected by those transgressions. If, on the other hand, the transgressions of the law by the officials being admitted, the Court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether those transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the Court is then bound to declare the election void.' It appears to us that this is the view which has generally been recognised and Acted upon by the tribunals which have dealt with election matters. We may refer, in regard to oases heard by Parliamentary Committees, to the Warwick case (1833) Per & K. 355 and the Roxburgh case (1838) Fatc. & Fity. 467, and, in regard to the more important authority of Courts of law and the Election Judges, to the considered judgment of the Court of Common Pleas in Woodward v. Sarsons (1875) 10 C. P. 738; 44 L. J. C. P. 293; 32 L. T. 867, which cites a number of authorities and contains an express approval of the answer of Baron Martin before a Committee of the House of Commons. We may also refer to the much more recent judgment of O'Brien and Johnson, JJ., in the East Clare case (1892) 4 O'M. & H. 162. And it is to be borne in mind by the tribunal which has to consider the validity of elections that it ought to act with great caution. 'I adhere,' said Baron Martin in the Warrington case (1869) 1 O'M. & H. 44 'to what Mr. Justice Willes said at Lichfield (1869) 1 O'M. & H. 24, that a Judge, to upset an election, ought to be satisfied beyond all doubt, that the election was altogether void, and that the return of a member is a serious matter and not to be lightly set aside.
9. The Court, after this general exposition of the law, expressed its approval of the decision in Gribbin v. Kirker (1873) I. R. 7 C. L. 30, where Monahan, C. J., set aside an election at which polling was allowed to go on for an hour after the doors were closed by people inside the room and there were no means of finding out how many voted after the time. The Court then proceeded to consider whether the respondent had discharged the burden of proving that the result of the election, that is, the success of the one candidate over the other, was not and could not be affected. It was found that ballot papers had been given out after 8 p. m. in contravention of the rule that the doors at each polling station were to be shut at 8 p. m. and only voters who had had ballot papers, delivered to them before that hour, should be allowed to mark them and deposit them in the ballot box. Bat it was also proved that only 14 ballot papers were given out after 8 p. m.; if all of these were assumed to have been given for the respondent and were excluded, he would still have a majority of five. It was consequently ruled that the election could not be impeached on the ground alleged as the respondent had proved that the result of the election had not been affected by the irregularity. Rogers in his work on Elections (1918), Volume, 2 pages 109, 257, states on the authority, of this case that the onus rests 'on the respondent to prove that the result of the election, that is, the success of the one candidate over the other, was not and could not be affected by the infringement of the rule. This view receives support from other decisions. Thus, in the Drogheda case (1874) 2 O'M. & H. 201, where the validity of the election was questioned on the ground that the polling stations, were not opened till 8-45 a. m., instead of 8 a.m., the objection failed, because the irregularity was shown to have had no effect on the election at which nearly the whole constituency voted. Again, in the East Clare case (5), where two of the presiding officers closed the poll while they adjourned for lunch, the election was not avoided, as the respondent had such a large majority that it could not have been affected by the irregularity. To the same effect are the decisions in the East Kerry case (1910) 6 O'M. & H. 85, where the booths were not quite ready at 8 a. m., and the Worcester case (1860) 3 O'M. & H. 184, where the polling was suspended by the presiding officer for a few minutes owing to his having the room cleared in consequence of a rush of voters. On the other hand, in Wilson v. Ingham (1895) 64 L. J. Q. B. 775; 72 L. T. 796; 15 R. 488; 43 W. R. 62; 59 J. P. 14 the Court invalidated the election, as there was only a difference of three votes between the last two candidates declared elected and the petitioner. It is not quite clear that the earlier decisions in the Limerick case (1833) P. & K. 378; C. & R. 548 and the Harwich case (1851) 1 P. R. & D. 314 lay down a different rule on the question of burden of proof.
10. We have seen that Kennedy and Darling, JJ., in the Islington case (1) refer to the judgment of the Court of Common Pleas; in Woodward v. Sarsons (4). In that case a question wa9 raised as to the effect of Section 13 of the Ballot Act, 1872:
13. No election shall be declared invalid by reason of a non compliance with the rules contained in the First Schedule to this Act, or any mistake in the use of the forms in the Second Schedule to this Act, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election.
Lord Coleridge, C. J.
11. Held that the Section was inserted ex abundanti cautela and that the same rule would have applied by virtue of the Common Law even if the Section had not existed. It was pointed out that, at Common Law, an election ought not to be held void by reason of transgressions of the law, committed without any corrupt motive, by the returning officer or his subordinates in the conduct of an election, where the Court is satisfied that the election was in substance conducted under the existing law and that the result was not and could not have been affected by those transgressions. This, according to the Lord chief Justice, is the result of comparing the judgments of Grove, J., at Hackney (1874) 2 O'M. & H 77 at p. 81. and Dudley (1874) 2 O'M & H 15 at p. 121. with the judgment of Martin, B. at Salford (1869) 10' M. & H 133 at p. 140., and of Mellor, J., at Bolton (1874) 2 O'M.' & H. 188 at p. 142., all of which judgments are in accordance with, but express more accurately the grounds of, the decisions in Parliament in the older oases of Norfulk (1626) 9 Journal H. C. 631; Heywood Co. 555., Morpeth (1774) Douglas E. C. 147., Pontefract (1774) Douglas E. C. 47., Coventry (1833) Per & Kn. 838; C. & R. 276., New Ross (1853) 2 P. R. & D. 188. and Drogheda (1874) W. & D. 206; 1 O'M. & H. 262 at p. 257, The substance of the matter, consequently, is that the infringement of the rule does not necessarily invalidate the election, as it Mould have done if the rule had been deemed mandatory in character. The party who maintains the validity of the election, notwithstanding the infringement of the rule, may satisfy the Court that the result of the election has not been affected by the error or irregularity. The Court has to be satisfied upon this point. The election would be avoided, even if the tribunal should be satisfied that, in the words, of Lord Coleridge, there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.
12. The principles deducible from the oases mentioned above have been adopted in leading decisions in the United States. They recognise the distinction between mandatory and directory provisions. A provision as to the time of opening and closing the polls is considered directory, on the general principle that a statutory provision is to be regarded as directory, if the directions given to accomplish a particular end may be violated and yet the given end be in fact accomplished and the merits of the case unaffected: People v. Cock (1853) 8 N. Y. 67; 59 Am. Dec. 451., Patton v. Watkins (1901) 90 Am. St Rep 43; 181 Ala 387, Cleland v. Porter (1874) 24 Am. Rep. 273: 74 Illinois 76., Lane v. Fern (1910) Ann. Cas. 1913 B 165: 20 Hawaii 290. On this principle it has been ruled that where the law fixes the opening and dosing of the polls at sunrise and sunset, the election should not be invalidated, merely because the polls were dosed a few minutes before or were kept open a few minutes after sundown, not thereby affecting the result in any manner. Bat this rule is applied only to what are called unsubstantial departures from the law. Where polls were opened from 1 p. m. until 6 P. M., instead of from one hour after sunrise to sunset, as required by law, the election was held invalid: Tebbe v. Smith (1895) 49 Am. St Rop. 63, 29 L. R. A. 673; 108 California 101., Goree v. Cahill Ann. Cas, 19 1 D 50-35 Oka 42; 128 Pac. 124. But an election will not be declared invalid, where it is apparent that the votes cast while the polls were not properly opened are not sufficient to change the result of the election: Lane v. Fern (1910) Ann. Cas. 1913 B 165: 20 Hawaii 290., Cleland v. Porter (1874) 24 Am. Rep. 273: 74 Illinois 76.
13. We do not refer to the decisions in England or in the United States as in any way binding upon us. But, as was pointed out by Sadasiva Aiyar, J., in Ramanujulu Naidu v. Parthasarathy Aiyaagar 28 Ind Cas. 6 2, 17 M. L. T. 331; (1915) M. W. N. 20; 2 L. W. 383., though the Common Law of England relating to Parliamentary Elections cannot control per decisions, 'wherever the rules of law are in conformity with justice, equity and good conscience, they may be referred to for the mental satisfaction of the Judge la India who finds that his decision, based on justice, equity and good conscience happens to be also in accordance with those Parliamentary Common Law Rules,'
14. On the grounds explained above, we have arrived at the conclusion that Rule 17 of the Election Bales is not mandatory, as the trial Court held; an election is not necessarily void because that rule has been infringed. The Court will uphold the election, if it is satisfied that the result has been affected by the infringement which actually took place. The burden rests upon the defendants to establish this, as they maintain the validity of the election notwithstanding the infraction of the rule. We do not agree with the District Judge that the burden lay upon the plaintiff to establish that the result has been affected by the transgression of the rule. If that view were maintained, the consequence would in effect be to encourage a violation of the rule. It is we think, important to emphasise the aspect that rules are made to be obeyed and that violation of the rules may imperil the election, throwing a heavy burden upon those who, notwithstanding the breach of the rules, wish to support the election and to satisfy the Court that the purpose of the election has been in fact achieved.
15. When we test the present case from this point of view, it becomes clear that the decree of the District Judge cannot be supported. On the facts stated, it is impossible to affirm that the result has not been in fact affected by the irregularity. Nearly one half of the constituency did not vote, namely, 601 voters out of 1287. If less than a quarter of these voters had voted for the plaintiff alone, he would have been successful. The truth is that the suit has been tried on a wrong basis; as soon as the irregularity was established, the burden should have been thrown upon the defendants to establish that the result of the election had not in fact been affected; if this had been done, they might have found it extremely difficult successfully to discharge the onus. In these circumstances, we have anxiously considered what direction should now be given. We are of opinion that we should not remit the case to the Court of first instance and direct a fresh trial; but a fresh election would be in the best interest of the Municipality and of the candidates. We can only express the hope that at such election, some endeavour will be made to conform to the rules and the directions issued thereunder.
16. We find from the proceedings in the Court below that the suggestion was made that the plaintiff may have been estopped by reason of his knowledge of and acquiescence in the irregularity at the time. We are of opinion that there is no foundation for this contention. A protest by the plaintiff could have been of no avail, Besides, an estoppel cannot be pleaded where statutory requirements are disobeyed with full knowledge by the officers entrusted with the discharge of public duties. The question was raised in the East Clare case (5), but was not decided. The Seaford case (1876) 3 Luder 24., on the other band, shows that the estoppel of the petitioner would in effect estop the constituency from raising the question whether the result of the election had been affected by the irregularity, and their rights should not be taken away by his Acts.
17. The result is that this appeal is allowed and the decree of the District Judge reversed. The suit is decreed; the election is declared contrary to law and is set aside; the second and third defendants are restrained by a perpetual injunction from sitting en the Municipal Board and exercising the functions of a Municipal Commissioner by virtue of the election hereby cancelled. Each party will pay his own costs in all the Courts, No doubt, the ordinary rule is that the costs are borne by the unsuccessful party, but where the suit has been caused by the conduct of the returning officer, each party may, in the discretion of the Court, be ordered to pay his own costs; Monahar, C. J., observed in the Athlone case (1874) 8 C. L. 240. that as the election was set aside for what was no misconduct on the part of either party, each party must abide his own costs, although it was a misfortune: Hackney case (1874) 2 O'M. & II. 87.