Lakshminarasimha Somayajiyar vs Ramalingam Pillai

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 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 (Set

Exhibit III) exclude the jurisdiction of the Civil Courts to entertain objections 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 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 Taluq Board

sufficient in the eye of the law to give him the right to sue for a declaration or the validity 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 sash reliefs ought to be refused in this case.

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

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

powers under the Local Boards Act to deal with certain affairs of the inhabitants of the Taluq. 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

Belief 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 Taluq Board and having a fair chance of being appointed or pleated 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 Fischer v. Secretary of State for India 22 M. 270 (P.C.) that Section 42 of the Specific Relief

Act is not exhaustive for the declaratory suits entertained by Civil Courts.

The next point which I shall consider is point No. (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 the 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 the inquiry into the objections made to the validity of

elections and 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 tribunal final as to the validity of an election."" Section 16 is too vague. Farther, 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 qualification of the electors and of candidates for appointment 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 Taluq 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 1(a) of Section 144 which speaks of ""any other matters regarding the system of representations and of election"" might

include this matter of setting up a separate tribunal with exclusive jurisdiction to enquire into objections to the validity of elections."" Clause 1(a) of

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

Clause 1(a), and Sub-clause, (a) to (f) under it, do not apply to elections of the Taluq Board members, still the divisions (a) to (f) under Clause

1(a) indicate what is meant by the ""method and time"" of appointment by election occurring in Clause 1(a), and as Clause 1 relating to Local Board,

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

analogous to those provided for by Sub-clauses (a) to (f) of Clause 1(a) relating to panchayat elections. Even accepting this argument, Sub-clause

(f), following Sub-clauses (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 the 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 1(a) of that

Act provides for the making of rules similar to those enacted in the provisions of Section 144, 1(a) of the Local Boards Act. As originally framed,

Sub-clauses 1 to 6 under Clause 1(a) of Section 250 of the District Municipalities Act almost exactly corresponded to Sub-clauses (a) to (f) of

Section 144, 1(a) 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 Sub-clause (6) in the District Municipalities Act included

the conduct of inquiries relating to the 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 the present Sub-clause (6)

providing expressly for the conduct of inquiry relating to the 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 Civil Courts in the matters of inquiring into the validity or otherwise of elections.

I shall now deal with the point No. 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 Exhibit 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 (ft) 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 that 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 he 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 bold 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, (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 Belief 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 etc.,) 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 on 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 inter-regnum 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 that 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 be 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 the 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 Act 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 un-successful candidate for a seat on the Taluq Board of Shermadevi at an election which took place in October 1917.

He brought the suit to have it declared that the election of the second 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 second 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 voter''s list was invalid, the qualifications 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 the Government had any

power to make rules for the election of Taluq Board members, which would have the effect of taking away the jurisdiction of Civil Courts.

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

election, subject to such rules and condition 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 qualifications 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-clauses (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-clauses (a) to if) 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 added 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 Government thought it advisable, ex abundanti cautela, to introduce Clause 6 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 elect 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 supper session 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,

contains 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 the election and when the last electoral list was prepared, that that list or register should be in operation until a new register was

prepared. In Todd, Ex parte : Ashcroft,35 W.R. 676 : 4 Morrell 20 Lord Eshar 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, bat 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 conclusiveness 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 the objections to

an election under Rule 33(c) 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 an objection 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 the 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 a matter is ousted. See Nataraja Mudaliar v. Municipal Council of Mayavaram 12 Ind. Cas. 311 and Bhaishankar Nanabhai v.

Municipal Corporation of Bombay 9 Bom. L.R. 417.

The plaintiff''s suit deservedly fails for another reason. When the register was prepared, he did not adopt the procedure provided by Rule 1(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 1), he

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

evidently an afterthought. 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 Basu v. Ranajit Singh 20 Ind. Cas. 676 it was held that, in similar circumstances connected with an election,

where the conduct of the plaintiff was 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.