A.K.G. Ahamad Thambi Maraicair vs V.S. Basava Maracayar

Wallace, J.—Three main points have been argued on this petition, (1) whether the statutory rules for the election of the Chairman were

broken, (2) whether having found that they were broken the lower court was not bound to find further that that breach had materially affected the

result of the election, before it could set aside the election, (3) whether if the court has neglected so to find, this Court can, and, if it can, will,

interfere in revision, and in what manner it should so interfere.

As to point (1) whether the election rules have been broken, the lower court''s finding appears to me to be a finding of fact, which in revision,

this Court will not ordinarily disturb. It is pleaded for petitioner that the lower court''s finding is vitiated by a fundamental misreading of the rules

which are statutory rules, i.e.that it is based on an error of law. Rule IV lays down that ""no candidate whose name has been proposed and

seconded shall take part in a ballot."" It is admitted that petitioner, whose name had been duly proposed and seconded, himself presided at the

meeting and conducted the ballot, opened the ballot box, counted the votes and acted as Returning Officer. I am in full agreement with the lower

court that this is ""taking part in a ballot"" and that that phrase is not restricted, as petitioner argues, to the mere act of voting. The rule has clearly

been framed to carry out the salutary principle that no man shall be a Judge in his own cause, and that it should not be in the power of one vitally

interested in the result to decide on such questions intimately affecting the result, e. g, the validity of a particular vote, as the officer presiding at the

ballot has to decide. The English Law on this subject is quite plain, see R. v. Owens (1859) 2E & E 86 ; R. v. White (1867) 2 QB 557 and other

cases cited on page 115 of Volumes III of Rogers on Elections 18th Edition, viz., that candidate is precluded from acting as chairman at an

election and is incapable of acting as a returning officer, and that if he so acts and is elected, his election is voidable on petition ad hoc. Rule IV, I

have no doubt, was designed to carry out the English Law principle.

I have no doubt then that in this case Rule IV was broken, and that the lower court did not misinterpret the rules or the law relating to elections

when it held so. It has been urged before me that this Rule IV seems to be in direct contravention of Section 23 of the Madras District

Municipalities Act, Act V of 1920, which implies that at every meeting of the Council at which the Chairman is present, he shall preside. The

difficulty is not met in my opinion by counter petitioner''s suggestion of interpreting ""absence"" as including ""incapacity "". These two words are in fact

used in Section 18 separately and as not implying each other, and if the incapacity of the Chairman to preside had been contemplated in Section 28

similar language to that used in Section 18 would have been employed. Section 30(4) has been obviously misread by the lower court and has no

application to the present point. The difficulty however is resolved by holding that the word ""chairman"" in Section 28, includes ""Chairman Delegate

in cases where there is no Vice Chairman, and in fact it is clear that one must hold so, otherwise the "" Chairman Delegate "" could not preside at

meetings at all, a reductio ad abiurdum. The proper precedure then in cases like the present, is that the chairman, being incapacitated from fulfilling

his duty of presiding at the election meeting, should u/s 18 appoint a chairman-delegate, who u/s 28, would preside at the meeting. Whether the

salutary principle that a man should not be a Judge in his own cause is preserved by a procedure which allows him to appoint his own Judge in his

cause may well be doubted, but that is, so far as I can see, the result of the present procedure as laid down in the Act and the statutory rules.

Be that as it may, the difficulty does not alter the fact that petitioner committed a breach of the election rules in presiding at the meeting and

taking part in the ballot for the election at which he was a candidate. It does not however at ail follow that the lower court''s order setting aside the

election was correct. Here I come to point (2) argued before me. Under the Statutory rules for the decision of election disputes published in the

Fort St. George Gazette, dated 30-11-1920 page 607, non-compliance with the. provisions of the Act or rules made thereunder can invalidate an

election only if"" the result of the election has been materially affected thereby "". To that question the lower court, has in my opinion, nowhere given

its attention. Counter petitioner argues that since the lower court holds that the rule broken was a mandatory provision, it must be deemed to have

held that the result of. the election was materially affected, and relies on the ruling in Shy am Chand Basak v. Chairman, Dacca Municipality ILR

(1920) Cal 524 What the election rules in Calcutta are, has not been stated before me. If they follow Rule 13 of the English Ballot Act of 1872 as

quoted at page 532 of that ruling, they are wider in principle than the rules in Madras, for under Rule 13 an election conducted "" not in accordance

with the principles laid down in the body of the Act "" may be declared "" invalid "". Under the Madras rules no breach of the rules, whether

mandatory or directory, shall invalidate an election unless the result of the election has been materially affected by such breach. It is not an axiom

then in this Presidency that the breach of a mandatory rule will so affect an election. It is a question of fact to be decided and found by the Judge

who hears the election petition,

It was the more necessary for the lower court to have decided this question in this case, as it was never even alleged much less attempted to be

proved by counter petitioner, that the result of the election would have been different had the rules not been broken, and there is no suggestion

that, while the ballot was going on, the petitioner had to give and did give a decision on-any point which could have effected the result of the ballot,

and the majority of votes, in his favour was overwhelming. Counter petitioner argues that the onus of showing that the breach did not affect the

election lay on petitioner who had violated the rule. Granting so, it is still clear that the lower court never put that issue before petitioner or called on

him to prove it, while obviously it was unnecessary for petitioner to go out of his way to set out any rebuttal to a case never stated by counter

petitioner in his objection petition to the lower court.

The lower court has thus neglected to put to itself and to the parties the question it had to decide before under the rules it had any legal power to

set aside the election. I therefore come to the third point argued viz., whether this Court can, and if it can, will interfere in revision. That in a matter

of this kind this Court has power to interfere u/s 115 of the CPC has been lately decided by a Bench of this court, in Ramasami Goundan v. Muthu

Velcippa Goundar (1922) 44 MLJ 1. I need not recapitulate the ratio decidendi of the decisions of their Lordships Krishnan and Venkatasubba,

Rao, JJ on this point, with which I respectfully agree. They hold that, when dealing with an election enquiry of this kind, the Judge is sitting as a

court subordinate to this Court and therefore Section 115 applies.

Is the present case one then in which this Court should interfere on revision? The phrase in Section 115 which can be called in aid by petitioner

is if such subordinate court appears--to have acted in the exercise of its jurisdiction illegally or with material irregularity"". A good deal of discussion

has centred round this point and many cases have been cited to me for the purpose of showing in what sort or class of cases High Courts in India

and in England have acted in revision. I need not deal with these cases in detail since they all lead to the same conclusion that what is a ""material

irregularity"", is a matter in itself un-definable and must be decided on the facts in each case. So far as it may be negatively defined, it is not a mere

mistake of fact or law. (See Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapukar ILR (1885) 11 Bom. 488 Kuppuswami lyenar v.

Narayana Aiyan-gar (1915) 3 LW 36 Jhotu Lal Ghose v. Ganonri Sahu (1918) 3 Pat LJ 376 and Venkatarama-njulu Naidu v. Ramaswami Nnidu

(1915) 29 MLJ 353 unless that mistake has occasioned a wrong assumption or refusal of jurisdiction (Atchayya v. Sri Seetharama Chandra Rao

ILR (1912) Mad 195 Hindley v. Joyanarain Marwari (1919) IR 46 Cal 962 since a court which has jurisdiction to decide a case on a point of fact

or law has jurisdiction to give a wrong as well as a right decision on either point. Thus where there is jurisdiction and that jurisdiction has been

exercised merely wrongly so as to eventuate in a wrong decision on fact or law, Section 115 cannot be called in aid. (See P.C. ruling in Amir

Hassan Khan v. Sheo Baksha Singh (1884) ILR 11 Cal 6 (PC) and the ruling in Sheo Prasad bungshidhur v. Ram Chunder Haribux ILR(1913)

Cal 323 But when there is jurisdiction and that jurisdiction has not been exercised or has been illegally or irregularly exercised, Section 115 will

apply (See P.C. ruling in Balakrishna Udayar v. Vasudeva Aiyar 33 MLJ 69 (PC).

I take the general principle to be this that when a court has taken up a point of fact or law for decision and has decided that point wrongly, it has

acted with full jurisdiction and regularly and legally, and no revision lies unless that decision itself affects the court''s own jurisdiction, but that when

having jurisdiction, the court has failed or refused to take up the point for decision, it has exercised its jurisdiction irregularly, and the more the

failure or refusal affects the exercise of its jurisdiction, the greater the irregularity will be.

Applying that principle to the present case, and recalling my conclusion that the lower court has omitted to decide whether the result of the

election was materially affected by the breach of the rules, i.e., to decide the one point in this case which gave it jurisdiction to set aside the

election, I cannot come to any other conclusion than that the Subordinate Judge exercised his jurisdiction with material irregularity. Clearly he

exercised it irregularly, since he had no legal basis on which to set aside the election, and overlooked the one factor which alone gave him

jurisdiction to set it aside; and clearly the irregularity was material, because it may well be that if he had decided that question, his decision might

have been in petitioner''s favour and then he would not have set aside the election.

I therefore u/s 115(c) set aside the lower court''s order and direct it to rehear and decide afresh the petition before it according to law. In

doing so, the Subordinate Judge will consider, it he decides, that the election should be annulled, whether having regard to the amendments

introduced by Madras Act I of 1922 into Madras Act V of 1920, a fresh election is necessary. It is a point I have not heard at length in this court.

Costs in this petition and up to date in the lower court will abide the result.