Lakshminarasimha Somayagiyar vs Ramalingam Pillay

Sadasiva Aiyar, J.—The facts have been set out in the judgment just now delivered by my learned brother and I need not repeat them.

The questions argued were (1) whether the powers given by Sections 16 and 144 of the Local Boards Act (Madras Act V of 1884) to the

Governor-in-Council to frame forms and to prescribe rules and conditions as regards appointment by election and as regards the system of

representation and of election include or imply the power to make rules for the conduct of inquiries into the objections made to the validity of

elections and to the creation of special tribunals to make such inquiries so as to exclude the jurisdiction of the ordinary Civil Courts and to make

the opinion of the special tribunals final as to the validity of elections ; (2) assuming that the Governor-in-Council has such powers, do the rules as

framed on the 6th June, 1917 (See Ex. III) exclude the jurisdiction of the Civil Courts to entertain objection to the validity of the election even

when those objections are based on the grounds (a) that there was no valid electoral register in existence on the date of the election, and (6) that

consequently the President of the District Board should have filled the vacancy by appointment under Rule 13 and (c) the defendant who claims to

have been elected has therefore not been validly elected ; (3) whether the plaintiff has an interest in the matter of the legal validity of the constitution

of the Taluk Board sufficient in the eye of the law to give him the right to sue for a declaration of the invalidity of the disputed election ; and (4)

even if all the above three points are decided in the plaintiff''s favour, whether this is a case where the Court has a discretion to grant or refuse the

declaratory and injunction reliefs prayed for and, if the Court has such discretion, whether such reliefs ought to be refused in this case.

I shall deal with point No. 3 first. That point is ""whether plaintiff has an interest in the matter of the proper constitution of the Taluk Board

sufficient in the eye of the law to give him the right to sue for a declaration of the invalidity of the disputed election."" The plaintiff is a resident of

Sherraadevi and the vacant seat in question was a seat on the Taluk Board of Shermadevi to which Taluk Board have been given important

powers under the Local Boards Act, to deal with certain affairs of the inhabitants of the Taluk. If the disputed election is held invalid, he has a

chance of being appointed to the vacancy, or of being elected when a valid election is held. The suit may not be one falling u/s 42 of the Specific

Relief Act, as the plaintiff does not sue for a declaration of his own legal character, or his right to any property. But he is a citizen owning

properties situated within the area of the Taluk Board, and having a fair chance of being appointed, or elected, as a member of the Board, and he

has, therefore, such a substantial interest in the proper constitution of the Board, as entitles him to bring a suit for a declaration as to the invalidity of

the election, it having been held in the well-known case of Robert Fisher v. Secretary of State for India-in-Council I.L.R(1898) . Mad. 270 that

Section 42 of the Specific Relief Act is not exhaustive, of the declaratory suits entertainable by Civil Courts.

The next point which I shall consider is point (1) viz., whether the powers given by Sections 16 and 144 of the Local Boards Act to the

Governor-in-Council to frame forms and to prescribe rules and conditions as regards appointment by election and as regards the system of

representation and of election include or imply the power to make rules for the conduct of inquiries into the objections made to the validity of

elections and the creation df special tribunals to make such inquiries so as to exclude the jurisdiction of the ordinary Civil Court and to make the

opinion of the special tribunal final as to the validity of the election. Section 16 is too vague. Further, the rules were not made u/s 16 but only u/s

144 Clause (1). Clause (1) deals with the power to make rules merely as to the qualifications of the electors and of candidates for appointments by

election and as to the method and time of election and of elective presidents, vice-presidents and members of Local Boards (Local Boards

including Taluk Boards according to the definition in Section 3, Clause 12). I think that rules as to the method of election of the members of Local

Boards cannot include a rule constituting a special tribunal to inquire into the validity of elections. It has been argued for the respondent that Sub-

clause (f) of Clause (1a) of Section 144 which speaks of ""any other matters regarding the system of representation and of election"" might include

this matter of setting up a separate tribunal with exclusive jurisdiction to enquire into objections to the validity of the elections."" Clause (la) of

Section 144 relates to the election of panchayats and not to the election of members to Taluk Boards. It may, however, be argued that even if

Clause (la) and Sub-clause (a) to (f) under it do not apply to the election of Taluk Board members, still the divisions (a) to (f) under Clause (la)

indicate what is meant by the "" method and time "" of appointment by election, occuring inClause (la) and as Clause 1 relating to Local Boards also

uses the expression ""method and time of election,"" matters relating to method and time of election of Taluk Board members include matters

analogous to those provided for by Sub-clause (a) to (f) of Clause (la) relating to panchayat elections. Even accepting this argument, Sub-clause (f)

following Sub-clause (a) to (e)(which deal with the division of the electoral area, the number of representatives and so on) cannot be interpreted as

including a matter of a totally different nature viz., the setting up of an exclusive tribunal to inquire into objections to elections. This Local Boards

Act, V of 1884, was passed in the same year as the District Municipalities Act, IV of 1884. Section 250, Clause (la) of that Act provides for the

making of rules similar to those enacted in the provisions of Section 144, (la) of the Local Boards Act. As originally framed, Sub-clauses 1 to 6

under Clause (la) of Section 250, of the District Municipalities Act almost exactly corresponded to Sub-clauses (a) to (f) of Section 144(la) of the

Local Boards Act. Sub-clause (6) in the Municipal Act was ""any other matters regarding the system of representation and election, which it may

seem expedient to provide for."" Sub-clause (f) of the Local Boards Act is ""any other matters regarding the system of representation and election.

Doubts, however, seem to have arisen about 1894 whether the Sub-clause (6) in the District Municipalities Act included the conduct of inquiries

relating to elections. Hence by Act III of 1897 Section 164, Clause 1, Section 250 Clause 1 of the Municipalities Act was amended by making the

old Sub-clause (6) as Sub-clause (7) and by introducing a new Sub-clause which is the present Sub-clause (6) providing expressly for ""the

conduct of inquiries relating to elections."" The legislature seems to have overlooked the fact that the corresponding Section 144, Clause (1a) of the

Local Boards Act also was guilty of the like omission as was found in the District Municipalities Act and ought to be amended likewise. Rules

made under statutory powers must, on pain of invalidity, not be in excess of the statutory powers authorising them and powers to make rules,

especially where such rules create new jurisdictions and take away the powers of ordinary Civil Courts, ought to be construed very strictly (See

Maxwell). I am therefore of opinion that under the Local Boards Act the Governor-in-Council had no power to make rules ousting the jurisdiction

of the Civil Courts in the matter of inquiring into the validity or otherwise of elections.

I shall now deal with the point (2) which is as follows : ""Assuming that the Governor-in-Council has such powers, do the rules, as framed on the

6th June, 1917,. (See Ex. III) exclude the jurisdiction of the Civil Courts to entertain objections to the validity of an election even when those

objections are based on the ground (a) that there was no valid electoral register in existence on the date of the election and (6) that consequently

the President of the District Board should have filled the vacancy by appointment under Rule 13, and (c) that the defendant who claims to have

been elected has therefore not been validly elected."" It is no doubt unnecessary to deal with this point as I have decided that the Governor-in-

Council has not got the powers to make rules so as to establish a new tribunal to inquire into the validity of elections. Assuming, however, that he

has such powers, I think the Rules 12(2), and 33(c) and (d) read together intend that any objection that there was no valid electoral register in

existence at the date of election, should be decided by the Collector finally and should not be questioned by the Civil Courts.

A subsidiary question which was argued was whether there was really no valid register in existence on the date of the disputed election. I am

inclined to hold that the old register was not superseded by the new rules, which only superseded the old rules and not the things which were

validly done under the old rules and which were not inconsistent with the new rules. Section 8 of the Madras General Clauses Act (Act I of 1891)

says ""where any act (which must include a rule made under the Local Boards Act as such a rule has the force of law according to Section 147 of

the Statute).repeals any other enactment then the repeal shall not (a) affect anything done before the commencement of the repealing Act; (c) affect

the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or (d) affect any right

privilege acquired, accrued under any enactment so repealed."" The register prepared under the repealed rules and the rights and privileges of the

voters acquired under those rules could not therefore be affected, especially when the repealing rules substantially (as pointed out by my learned

brother) reproduce the old rules on the point in dispute.

Lastly comes the 4th point viz., "" whether this is a case where the Court has a discretion to grant or refuse declaratory and injunction reliefs and

if the Court has such discretion, whether such reliefs ought to be refused in this case?"" I do not see how it can be seriously argued that the grant of

a declaratory decree in any case is not a matter for the discretion of the Court. Section 52 of the Specific Relief Act shows that the grant of the

relief of injunction is always a matter for the discretion of the Court. Having regard to the conduct of the plaintiff who made unfounded allegations

of undue influence and bribery against the defendant (besides the unfounded allegations of the want of secrecy in the balloting, &c,) and to the fact

that he himself accepted the election proceedings as having been regularly begun (and competed for the vacancy of the election) till he sustained

defeat at the election, the Court would be exercising its discretion properly in refusing declaratory and injunction reliefs to such a plaintiff even

assuming that a valid electoral register did not exist, and hence, the election was invalid.

I forgot to refer to one argument relied upon by the Lower Appellate Court and by the Appellant''s learned vakil, viz., that Rule 13 when read

with Rule 11(1) contemplates the possibility of an interregnum when no valid electoral register is in existence and that interregnum could only occur

owing to the supersession of the old rules by the new rules. I do not think the argument can be accepted. It may be that owing to the Collector of

the District under Rule 1 having created new circles there could be no valid register so far as the new circles were concerned and it may be that

that was the contingency contemplated by Rule 13 or it may be that Rule 13 merely reproduced the corresponding old rule (which was enacted

when an interregnum was possible before the very first register was prepared) and was included in the new set of rules unnecessarily, nobody

caring to ascertain whether it was really necessary. I shall however, not pursue that matter further.

In the result I hold that though the plaintiff was entitled to institute the suit and though a Civil Court has jurisdiction to entertain it, the election was

validly held under a valid electoral register and that even if the election was invalid, the Court ought to refuse in its discretion the reliefs claimed by

the present plaintiff. No question of inconvenience can arise by refusing to declare the invalidity of an election as u/s 162 of the Local Boards Act

the acts of a Local Board with members legally disqualified to sit as members are not invalid.

Finally I might suggest that when the Local Boards Ac'' is taken up for revision, the legislature will take good care to see that the powers to

make rules and the subjects on which rules can be made are defined clearly and at length.

In the result the Second Appeal is dismissed with costs.

Spencer, J.

The appellant was an unsuccessful candidate for a seat on the Taluk Board of Shermadevi at an election which took place in October, 1917.

He brought this suit to have it declared that the election of the 2nd defendant was illegal and invalid. In his plaint he alleged bribery, corruption and

want of secrecy in the balloting. But he gave up these contentions at the trial. The substance of his objections to the 2nd defendant''s election as put

forward in this and in the lower Courts was that a new roll of electors was not prepared when the revised rules under Sub-clause (1) of Section

144, of the Local Boards Act (Madras Act V of 1884) were published by Government in June, 1917. He maintained that an election held on the

old voters'' list was invalid, the qualification entitling a person to vote under the new rules being a little different from the qualifications required by

the old rules. He also raised the question in ground No. 7 of his memorandum of second appeal, whether Government had any power to make

rules for the election of Taluk Board Members which would have the effect of taking away the jurisdiction of the Civil Courts.

I will deal with the last point first. Section 16 of the Local Boards Act provides that members of Taluk Boards may be partly appointed by

election subject to such rules and conditions as may from time to time, be prescribed by the Governor-in-Council; and Section 144 provides that

the Governor-in-Council may from time to time, frame forms ... and make rules (1) as to the qualification of electors and of candidates for

appointment by election and as to the method and time of election of elective presidents, vice-presidents and members of Local Boards."" Next

follows Clause 1(a) which relates to the election of panchayats and then several Sub-clause (a) to (f) of which Sub-clause (d) deals with the

registration of electors and Sub-clause (f) speaks of ""any other matters regarding the system of representation and of election."" it is not quite clear

whether Sub-clause (a) to (f) are intended to qualify Clause 1 of Section 144, which refers to election to Local Boards, or whether they only

qualify Clause 1(a) which deals with the election of Panchayats. But in any case I think that the words "" any other matters regarding the system of

representation and of election "" illustrate what is meant in Clause (1) by the words ""method of election"" of members of Local Boards. I think these

words are wide enough to cover the power of making rules to provide for the whole scheme of election and for the conduct of inquiries into

complaints and objections to elections held or about to be held as well as to objections to the list of voters.

An argument has been drawn from the analogy of the District Municipalities Act (Madras Act IV of 1884). In that Act an additional clause

was aided to Section 250 by the Amending Act III of 1897 by which the words ""the conduct of inquiries relating to elections "" were added. From

the fact that the Government thought it advisable ex-abundanti cautela to introduce Clause (vi) to amplify the powers already conferred by the

section it does not follow that the words of the clause as they originally stood were not wide enough to include power to make rules for the

preparation of the electoral register. I am not impressed by an argument based on another piece of legislation to the effect that Government

intended to limit its own powers under this act and I therefore hold that the rules published in 1917 were valid.

The next objection is that the rules framed by Government in 1917 having been declared to be in supersession of all existing rules the electoral

register prepared under the authority of the old rules became useless and rendered an election held on the votes of the electors named in that

register invalid. The fallacy in this argument lies in the supposition that the supersession of the old rules necessarily led to the supersession of

everything done under the old rules. Rule 11, Clause (1) of the New Rules which came into operation on 1st July, 1917 provides that ""when the

electoral register has been revised by the Divisional Officer and corrected as aforesaid, the said register shall be deemed to be complete and shall

come into operation with effect from the 1st day of January next ensuing and shall continue in operation for the twelve months beginning on that

day, and, if the next electoral register is not ready by the prescribed date until such register is ready, and it shall be conclusive as to the general

qualifications to vote prescribed in Rules 4, 5, 6 and 7 above."" Rule 12(1) of the old rules which came into operation on 1st January, 1916

contained similar provisions in almost identically the same language. Taking it therefore that these rules have the force of law, it was the law both at

the time of election and when the last electoral list was prepared that that list or register should be in operation until the new register was prepared.

In Ex parte Todd : In re Ashcroft 19 Q.B.D. 186 Lord Esher observed "" It is a wholesome doctrine to hold that the section is retrospective so'' far

as it is a repetition of the former enactment, but that it is not retrospective as far as it is new."" I am therefore of opinion that the new rules cancel the

old rules but they do not render the old electoral register of no effect when there was a provision both in the old rules and in the new rules for its

continuance. In this view the plaintiff''s suit was rightly dismissed as it failed on the merits.

But a question was also raised whether the validity of the election was a matter which could be made the subject of a civil suit. Rule 12, Clause

2 lays down ""No failure to observe the dates prescribed in this and the preceding rules or to observe other directions in these rules regarding the

preparation of the register shall entitle any one to question the validity and eonclusiveness of the register in proceedings under Rule 33."" It has been

argued for the appellant that this rule gives him a right to question the correctness of the register in a Court of law. On the other side it is argued

that it is tantamount to a prohibition of his questioning the register either in a Court of law or before the Collector. One of theobjections to an

election under Rule 33(e) is that ""the person whose election is questioned was not duly elected by a majority of lawful votes."" The District Munsif

was of opinion that this rule permitted an objection to be taken in a petition before the Collector. The District Judge was of opinion that it could not

be raised in-such proceedings. My view as to the provision in Rule 12(2) is that it was intended to debar any objections to the electoral register

being taken except as specially provided for in Rules 4, 5 and 6 at the time of the preparation of such register and if this view is correct the plaintiff

has no locus standi to take this objection after the election. I do not think that Rule 12(2) implies that such objections as could not be taken before

the Collector in proceedings under Rule 33 could be taken in such proceedings as a suit in a Civil Court. The machinery for the conduct of

elections provided by the rules framed under the Act being complete in itself, the jurisdiction of the ordinary Civil Courts to take cognisance of

such matters is ousted (see Nataraja Mudaliar v. Municipal Council of Mayavaram 21 M.L.J. 878 and Baishankar v. The Municipal Corporation

of Bom-bay. ILR (1907) Bom. 604

The plaintiff''s suit deservedly fails for another reason. When the register was prepared he did not adopt the procedure provided by Rule 10(4)

of objecting up to the 20th of September. The election was on October 2nd and in his petition to the Collector, dated October 6th (Exhibit I) he

did not raise this point. He went to the poll on the footing of the register being a valid one. The technical point he has taken in these proceedings is

evidently an after-thought. He is therefore not entitled to the equitable relief of a declaration on a matter connected with the preparation of an

electoral register. In Bhupendra Nath v. Ranjit Singh ILR (1913) Cal. 384 it was held that in similar circumstances connected with an election

where the conduct of the plaintiff had been remiss and dilatory, the Court ought not to interfere and give him a declaratory decree in the exercise of

its discretionary jurisdiction, u/s 42 of the Specific Relief Act.

The suit was rightly dismissed and the Second Appeal should be dismissed with costs.