C. Sarvothama Rao vs The Chairman, Municipal Council

Walter Salis Schwabe, K.C., C.J.—These are Civil Revision Petitions in three suits all arising out of the Municipal Elections for Saidapet.

The first Civil Revision Petition No. 705 is in a suit which asks for a declaration that a nomination paper put in on behalf of the plaintiff as a

candidate for election as a Municipal Councillor was wrongly rejected by the Chairman of the Council, the defendant, and for an injunction to

restrain him from holding an election without the plaintiff as a duly nominated candidate, and also to compel him to hold an election with the plaintiff

as a candidate.

The other two Civil Revision Petitions Nos. 758 and 828 are in suits by two persons, whose nomination papers were also rejected, against two

other candidates who being the only other candidates for the wards in question were by the rules deemed to have been elected when these

nomination papers were rejected. The claim in the suits is for an injunction to restrain these persons from acting as councillors and also against the

Chairman, who is made a party for this purpose, to restrain him from holding a meeting of the Council as now constituted for the purpose of

electing a new Chairman.

In the first case and in one of the others the rejection of the nomination papers was on the ground that it did not give the number of the ward

for which the candidate desired to stand and in the other case on the ground that the thumb mark of the seconder of the candidate, had not been

attested.

The District Munsif of Poonamallee granted interim injunctions in all three cases, the District Judge on appeal dissolved them all.

I am clear that the rejection of the nomination papers was not in law justified in any of the three cases, and that all three plaintiffs ought to have

been treated as duly nominated.

In the two latter suits I am however of opinion that the injunctions ought not to have been granted, because the plaints in them disclosed no

cause of action against the defendants. The successful candidates have done nothing wrong. They have simply found themselves elected and

therefore, as their duty is, propose to take their seats. Nor do I think that any Court can properly be asked to grant an injunction restraining the

Chairman from holding a meeting of the Council as at present constituted. It is open to these plaintiffs to proceed by election petitions. In my

judgment, there being no cause of action against the defendants in these 2 suits there can be no ground for granting an injunction.

Turning now to Civil Revision Petition No. 705 of 1922. If a man entitled to vote or to be a candidate at an election is wrongfully deprived of

that right, an action for damages lies against the person so depriving him. This was established in England in Ashby v. White Smith''s Leading

Cases Vol. I, p. 295 (1703), which case has since been uniformly followed, and in my judgment this is also the law of this country as was stated in

The Municipal Board of Agra v. Asharfi Lal (1921) 44 All. 202. But this statement requires qualification, for if the act by which the right is

interfered with is an act done in a judicial capacity then the rule applies that no action lies unless the act is done maliciously, which in this context

really means dishonestly; see Pickering v. James (1873) 8 C.P. Cas. 489 : 42 L.J. (C.P.) 217, particularly the judgment of Brett T. at page 509. In

this case the Chairman was acting in a judicial capacity in rejecting these nominations and it is not alleged that he acted dishonestly and therefore no

action would lie for damages against him. But there may still be a cause of action of a different nature, not in respect of the chairman''s past acts,

but to prevent by injunction the carrying out of any threatened action by him which would have the effect of illegally interfering with the plaintiff''s

rights; and in my judgment this is such a case. The Chairman has unlawfully rejected the plaintiff''s, nomination paper and he has announced his

intention of holding an election for Ward No. 5 without permitting the plaintiff to be a candidate. I do not think that the law is such that the plaintiff

must wait until the election is held and then bring an election petition, which is bound to succeed; nor indeed would that remedy give him all that he

is entitled to, because after the election petition had succeeded there would have to be fresh nominations and there might be other candidates in the

field that he would not now have to meet, to say nothing of the trouble and expense that he would necessarily be put to. There is ample authority to

support this view. In Asian v. Corporation of Southampton (1880) 16 Ch. D. 143 where it was proposed to hold an election of an Alderman of a

borough in the place of the plaintiff, who it was wrongly alleged had vacated his seat, the Court of Chancery interfered by an injunction forbidding

the holding of the election. In Richardson v. Methley School Board (1893) 3 Ch. 510, that Court granted an injunction to prevent the holding of an

election for the post of school-master in place of the plaintiff, who was wrongly alleged to be disqualified for the office, and it was laid down that

where there is a legal right which can be asserted in law or equity a Court of Equity can grant an injunction in protection of that right. I have no

doubt that this Court possesses the same powers under the Specific Relief Act, 1877, and in my judgment this is a case for exercising them.

Reliance is placed by the defendant on Section 352 of the Madras District Municipalities Act, 1920, which protects the Chairman from suits in

respect of acts done in his official capacity, but in my judgment there is nothing in that section to preclude a suit being brought to restrain him from

doing a threatened wrongful act to the detriment of another. It is also contended that no action lies because the decision of the Chairman is final and

conclusive. I can find nothing in the rules to make it so. Under Rule 31 if any question arises as to the interpretation of the rules, otherwise than in

connection with an election enquiry, the question shall be referred to the Local Government whose decision shall be final. The plaintiff tried to refer

the question of the rejection of his nomination, which was a question of the interpretation of the rules, to the Local Government, but the Local

Government, declined jurisdiction in the matter on the grounds, as they inform us through the Government Solicitor, that the matter had not been

referred to them by the Chairman or otherwise officially, and that the matter was already sub judice. The result is that there has been no conclusive

ruling on the point and it is open to us to decide the matter.

I venture to express a hope that it may be possible for the Local Government acting u/s 36 of the Act to cancel the rejection of this nomination

by the Chairman and direct the election to be held with the plaintiff as a candidate. They will no doubt also consider whether any action can be

taken in the other two cases so as to avoid the necessity of an election petition.

The defendant must pay the costs of the proceedings for injunction before the District Munsif and before the District Judge and of this petition

No. 705. The plaintiffs in the other two suits must pay the costs of these petitions Nos. 758 and 828.

Wallace, J.

These petitions are all petitions to restore the order of the District Munsif granting temporary injunctions pending disposal of the petitioners''

suits. Certain general features are common to all and with these I shall first deal.

The nomination papers of the three petitioners as candidates for the Municipal election were declared invalid by the Chairman. In two cases

there was only one other candidate, who was declared duly elected, and in the other case the election has not yet been held. All the three

candidates are suing for declarations that their nominations were proper, and that they were entitled to stand. The original Court by injunction has

in the former two cases restrained the duly elected candidates from sitting, and in the latter case, Civil Revision Petition No. 705 of 1922 before

us, has restrained the holding of an election. The District Judge on appeal dissolved all the three injunctions, and we are now asked to restore them

pending disposal of the petitioners'' suits, framed to restore to them the right to stand as a candidate of which they have been deprived.

The main contention of the respondents in all the cases is that the suits themselves will not lie and therefore no injunctions can be granted. The

District Munsif in his final order granting injunctions avoided deciding, that question. It would have been better if he had decided the suits and the

injunction petitions together. It is impossible in deciding the propriety of these injunctions to avoid deciding on the maintainability of the suits.

The petitioners'' chief contention is that the suits are maintainable u/s 42 of the Specific Relief Act as being suits by persons entitled to a legal

character for the declaration of their title. That the general right of being nominated to stand as a candidate for a Municipal Election is a legal

character cannot, I think, admit of doubt, but before it follows that Section 42 will give a right of suit, we have to note that this legal character is

itself the creation of a specific statute, the District Municipalities Act, V of 1920, and that it is settled law that where a statute itself sets up a proper

tribunal for trying cases of the infringement of the right to such a legal character and that tribunal has functioned judicially, the Civil Court will have

no jurisdiction. So that we have to examine firstly, what is the nature of the infringement of the right complained of, secondly, is there a tribunal

appointed by the Act or the rules under it to deal judicially or quasi judicially with such an infringement, and thirdly, if there is one, has it

functioned?

As I conceive the position, no one is denying the petitioners'' general right to be nominated to stand as candidates in this or in other elections,

provided that their nomination papers are in proper form. No one, least of all the Chairman, is concerned to deny that the petitioners were entitled

to stand if their interpretation of the rules is correct and if their nomination papers were in proper form, and no one, least of all the petitioners, is

concerned to deny that they were not entitled to stand if the Chairman''s interpretation of the rules is correct and their nomination papers were not

in proper form.

Therefore the only question of substance that the suits really raise is whether or not the petitioners'' nomination papers were in proper form,

that is, whether the rules on this matter have been properly followed. No allegation of bad faith is made against the Chairman, and there is no

contention that he deliberately misinterpreted or disobeyed perfectly clear rules with the object of depriving anyone of his lawful rights. Hence, we

must take it that the Chairman honestly considered that he was conforming to the rules when he rejected the three nominations. The position then is

this : That the Chairman in good faith, although mistakenly, in my opinion, held the meaning of the rules to be in one way while the petitioners hold it

to be another. The real point at issue and the point which the District Munsif who has to try the suits must decide, therefore, is merely whether the

rules have been properly interpreted, and according as his interpretation inclines towards the petitioners'' view or the Chairman''s view, the

petitioners will or will not have a cause of action. If the petitioners get a decision of the proper authority, whose decision is final in this matter,

interpreting the rules in the manner for which they contend, their rights will be once for all restored.

Is the Civil Court then the final authority for that purpose, and will a civil suit lie, which, in essence is merely calling upon the Civil Court to

interpret these rules regarding the nomination of candidates for election? I think that the answer would ordinarily be in the negative for the short

reason that, as I read the rules, another tribunal is set up for that very purpose. Rule 31 of the Election Rules clearly lays down that ""if any question

arises as to the interpretation of these rules otherwise than in connection with an election enquiry, the question shall be referred to the Local

Government whose decision shall be final,"" that is, the Local Government, which drafted the rules, is the final arbiter for deciding what the rules

mean, and the Civil Court cannot ordinarily be asked to decide whether the Local Government''s interpretation of its own rules is right or wrong.

There is, however, in one of these cases, C.R.P. No. 705, this peculiar feature, which was disclosed to us only towards the close of the

argument before us, namely, that the petitioner had, after the unfavourable ruling of the Chairman, made a reference to the Local Government and

asked it to interpret the rules and revise the Chairman''s order and permit his nomination, and that the Government''s answer was that it declined to

interfere. The answer is before us and on its face it is not clear on what grounds the Government declined to interfere, but the letter also before us

produced by the Government Solicitor on 18-12-22 makes it clear that the refusal to interfere was on the ground that the Local Government had

no jurisdiction, Government apparently holding that, while a reference can be made in such a case under Rule 31, it cannot be made by a private

party, but only by the Chairman. I am myself unable to read Rule 31 so, and, so long as it is read so, so long will an aggrieved candidate be driven

for his remedy to the cumbrous method of a civil suit and an injunction. The net result however is that the Government conceived that it had no

jurisdiction and therefore declined to function as the judicial or quasi-judicial tribunal it was intended to be, because it thought that the case had not

been properly brought before it.

Now, if this tribunal had functioned in this case and given a decision, - whether right or wrong in the opinion of the Civil Court is immaterial - I

am clear the Civil Court would have no jurisdiction and the remedy provided by the Statute would have been used and exhausted and its decision

on the matter would be final. But where the proper tribunal has declined jurisdiction and the aggrieved party is thus bereft of his statutory and

constitutional remedy, it is the province of the Civil Court, as a Court of Equity, to fill the vacuum created and to exercise the jurisdiction which the

proper tribunal has failed to exercise.

It cannot be admitted ,that the faith of the Chairman in the matter of interpretation of the rules is absolutely final, and that he can by his mere

order prevent a candidate from standing for election, such a principle is not deducible from the Act or the rules. The rules not only do not say so,

but provide a method of appeal or revision from such an order. Self-government has not progressed so far in the direction of autocracy. If

Government then misinterprets its own rules as giving it no jurisdiction so as to take away from the aggrieved party the remedy provided by the

rules, and thus, in effect, declares that it never intended itself to have jurisdiction, then the Civil Court must take it either that the Statute does not

oust the jurisdiction of the Civil Court or that the Government, nevertheless had jurisdiction, but refused to exercise it. In the latter case the Civil

Court may legitimately be called on to interfere in order to decide whether a particular authority has or has not jurisdiction in a particular matter,

and, if that authority has jurisdiction but refused to exercise it, then to exercise it itself, and not to leave the aggrieved party without any remedy. In

other words, the ordinary jurisdiction of a Civil Court may, in the first instance, be barred by a Statute or Rule setting up another authority, but

when that Statute or Rule is not obeyed and that other authority refused to function, then the bar is removed, and there is nothing to prevent the

Civil Court itself functioning.

The attitude of the Government in declining jurisdiction in this case is difficult to understand. In other cognate matters a definite tribunal has

been set up by it, which automatically ousts the jurisdiction of the Civil Court. In the case of an elector wrongfully excluded from electoral roll, the

rules under the Act provide for the decision of the case by a Special Tribunal. In the case of malpractices or irregular procedure at an election, the

rules provide for an election petition being brought before the District Court or a Sub Court. It is difficult therefore to believe that the Government

intended to leave without remedy a candidate whose nomination was improperly rejected by the Chairman, and I am fortified by this in my opinion

that the Government in this case wrongly declined to exercise a jurisdiction which was intended to be exercised by it.

In C.R. Petition No. 710 of 1922 therefore I am satisfied that the tribunal was then really set up but refused to function and such refusal is the

direct source for the petitioner''s cause of action and the basis for the maintainability of his suit. On that ground the suit out of which that Civil

Revision Petition has sprung is prima facie maintainable.

I shall now deal with three points urged by the respondents against the maintainability of that suit and the other two suits. The first is Section

352 of the District Municipalities Act. That is a bar to suits only in respect of acts done, but the real grievance in C.R.P. No. 705 of 1922 is not

that the Chairman rejected the nomination but that he intends to hold an election without allowing petitioner to stand, that is that the Chairman is

threatening to do wrong. Section 352 is no bar to such a suit. But it will, I conceive, be a bar to the other two suits from which C.R.Ps. Nos. 758

and 828 have sprung, since in my view, the election in those cases has been held, there being no difference between a case where a contest has

taken place and a case where a contest has not taken place. If a candidate has been returned as elected the election is over and has been held.

Therefore in these two cases the suits are to set aside acts done and not acts threatened. I am not at present, however, very sure, of the

correctness of this opinion and prefer to decide the fate of these two suits on the next ground of objection.

This ground is that all the three suits are barred because the petitioners have their remedy by way of election petitions. In the case of Civil

Revision Petitions Nos. 758 and 828 I am clear that this is a good objection. Elections have been held and there is a tribunal set up by the Rules

for the decision of petitions to set aside election, a tribunal whose decision under the Rules is final. The Statute itself therefore provides the remedy

and the statutory tribunal has not refused, jurisdiction. The ordinary Civil Courts therefore have at present no jurisdiction. In my opinion for this

reason also these two suits are not maintainable in the Civil Court.

But as regards Civil Revision Petition No. 705 of 1922 the position differs radically. The election has yet to be held and I am quite clear that

any post-election remedy is wholly inadequate to afford the relief which the petitioner seeks, namely, that this election, now published, be stayed,

until it can be held with himself as a candidate. It is no consolation to tell him that he can stand for some other election. It is no remedy to tell him

that he must let the election go on and then have it set aside, by petition and have a fresh election order. The fresh election may be under altogether

different conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the (proposed election

without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely necessary, unless the

relief asked for was to be denied him altogether in limine. In most cases of this kind no doubt there will be difficulty for the aggrieved party to get

his suit in time before the threatened wrong is committed : but, when he has succeeded in so doing, the Court cannot stultify itself by allowing the

wrong which it is asked to prevent to be actually consummated while it is engaged in trying the suit.

The third ground of objection relates more to the grant of the injunction in Civil Revision Petition No. 705 of 1922 than to the suits themselves,

and, that is, that this Court, or any other cannot by injunction compel the Chairman to do what he has no longer any power to do, it being urged

that the Chairman has no power under the Rules to revise or cancel his own orders, and must now automatically proceed to hold an election. I am

not impressed by this argument. It is tantamount to saying that the Chairman has no power to set right an admitted wrong. I should hesitate to draw

any such conclusion, and, in any case, the Chairman can apply for the intervention of the Local Government, which u/s 36 of the Act has ample

powers to set right any blunder or mistake.

The cases quoted before us do not appear to me to affect these conclusions. Both sides have quoted freely from English Law, mostly from

cases of mandamus and quo-warranto, which clearly lays down that a returning officer is acting judicially in deciding on the validity of a nomination

paper, and that, in respect of such judicial act, no suit for damages can be maintained against him. That is a different question. The case in Prilchard

v. Mayor, etc. of Bangor (1888) 16 Ch. D. 143 is a case in which the Civil Court claimed jurisdiction to interfere with the order of the returning

officer disqualifying a candidate as passed without jurisdiction and proceeded itself to decide on the validity of an election. That also was a case of

mandamus. The only English cases really helpful are Aslatt v. Corporation of Southampton (1880) 16 Ch. D. 143 and Richardson v. Methley

School Board (1893) 3 Ch. 510, which follows on the former, in which injunctions similar to those now in controversy were granted in actions for

an injunction by a Court of Equity, there injunctions being granted u/s 25 of the Judicature Act, 1873.

As regards Indian cases, apart from cases such as In re Surrendra Chandra Ghose ILR (1918) C. 950 and Narendranath Mitter v. Radha

Charan Pal (1918) 46 C. 119 and In re Amulyadhan Addy ILR (1918) C. 132, founded on manamus, the case in Sabhapat Singh v. Abdul Gaffur

ILR (1896) C. 107 is one in which it was declared generally that a suit by a candidate in a mofussal election will lie for a declaration of his right to

vote and to stand as a candidate, and that he was duly elected. It proceeded partly on the consideration of a saving caluse in Section 15 of the

Bengal Municipal Act III of 1894 which, it was held, must be read into the previous Act of 1884, and partly on the ground that, if no such suit lay,

there will be no way of upholding and maintaining such civil rights in the mofussal. The grounds for this decision seem to be open to question since

the rules under the Act of 1884 evidently provided for an election petition before the District Magistrate and the ratio decidendi would imply that

Section 42 of the Specific Relief Act will support such a suit in the mofussal, though it cannot be called in aid in the Presidency Town, because

Section 45 of the Act, winch was called in aid in that case and has so often been called in aid in similar cases in Calcutta, implies, by force of

Clause (d), that there is no other remedy and therefore no remedy u/s 42. I. do not think that that case is of very much assistance. In Ataul Huq v.

The Chairman, Manicktola Municipality ILR (1920) C. 378, the question of jurisdiction was dealt with in a very summary manner, the want of

jurisdiction not being seriously pressed, probably in consequence of the earlier ruling in Sabhapat Singh v. Abdul Guffur ILR (1896) C. 107.

In The Municipal Board of Agra v. Asharfi Lal ILR (1921) All. 202 the suit was for damages for wrongful refusal to enter the voter''s name on

the electoral roll, and it may be noted that in that case the party had had his name already entered on the electoral roll by the District Magistrate

before he came into Court, so that it does not help us to decide whether in Allahabad a suit for entry on the electoral roll or a similar relief will lie.

Coming to the Madras Cases Nataraja Mudaliar v. Municipal Council of Mayavaram 21 M.L.J. 878, relying on Bhaishankar v. The Municipal

Corporation of Bombay ILR (1907) B. 604, declares that a civil suit will not lie to set aside an order of the Collector, (who was the tribunal

designated under the rules under Act IV of 1884 to pronounce finally on the validity or the invalidity of an election), declaring an election invalid,

when an enquiry has been held by him. That decision is clear that a Civil Court can not, as it were, sit in appeal over a tribunal appointed by

Government to decide such a question finally. No doubt the learned Judges in that case say that a suit would lie to declare that the plaintiff was a

person qualified to vote and stand as a candidate and that is so far an authority for the position that such a suit is not under all circumstances wholly

unmaintainable. The case in Valliammal v. The Corporation of Madras 23 M.L.J. 531 proceeds on the general principle that the legislature would

not have intended the word ""final"" in a particular section of the Municipal Act to be so interpreted as to leave the Municipal Council to be a final

Judge in its own course. The principle is applicable to the present case, and, in so far as it declares the jurisdiction of the Civil Court to prevent

such a wrong, it is in point.

The case in Lakshminarasimha Somayagiyar Vs. Ramalingam Pillay, was sufficiently decided by one learned Judge on the ground that the

particular rules of the Local Boards Act which he was considering were ultra vires and could not therefore oust the jurisdiction of the Civil Court,

but he also held that the rules in that particular case if valid, would oust that jurisdiction. The other learned Judge concurred in the latter opinion.

This case does not deal with the particular difficulty here, which is occasioned by the rules not being carried out.

I therefore agree that the correct principle is that, when a duly constituted tribunal has refused to try the question the right of a party to the legal

character of one entitled to be nominated to stand as candidate for an election, and there is no other remedy available, the ordinary Civil Court has

jurisdiction to entertain a suit for that relief and the right to grant a proper temporary injunction retaining matters in status quo ante until the suit is

tried. Civil Revision Petition No. 705 of 1922 is exactly such a case, and the injunction granted by the original Court was therefore a proper one.

In the other two cases, the election has been held and the petitioners have a remedy not yet employed or exhausted, namely, by way of election

petition, and therefore their suits are at the least premature, and, in my view, at present unmaintainable. The injunction granted in those cases

cannot therefore be upheld. In Civil Revision Petition No. 705 of 1922 the order of the District Judge should therefore be reversed and the

injunction granted by the District Munsif restored. The other two Civil Revision Petitions should be dismissed.