S.K. Devasigamony vs M.R. Sethuratna Iyer and Another

Ramesam, J.—The facts are simple and are not in dispute. The office of the Vice-President, District Board, Trichinopoly, fall vacant and

there was a fresh election on 6th October 1923. The 2nd respondent was proposed by Dewan Bahadur Pethachi Chettiar who also voted for the

candidate proposed by him. An objection was taken that the proposer was not legally a member of the District Board, but was overruled. The 2nd

respondent obtained 22 votes while the 1st respondent, the rival candidate, got 21 votes. The ground on which the membership of Mr. Pethachi

Chettiar is questioned may be stated thus : Originally he was President of the Taluk Board of Karur, and as such ex-officio member of the District

Board (Section 8 of the Act). He absented himself for three suoc3S9ive months (June, July and August) from the meetings of the Karur Taluk

Board and u/s 56(1)(h) he ceased to hold his office. When he ceased to be a member of the Taluk Board, he vacated also his office as President

of the Taluk Board u/s 15(1). u/s 56(4) the Taluk Board of Karur on 8th September 1923, restored him to his office as member of the Taluk

Board, but thereby he was not restored to the Presidentship of the Taluk Board of Karur. He could become President of the Taluk Board of

Karur only by a fresh election (Section 17). There was no such election. If he was not President of the Taluk Board of Karur, he was not ex-

officio member of the District Board. The argument was accepted by the Sub-Judge of Trichinopoly in O.P. No. 9 of 1923, and both sides have

filed revision petitions.

Mr. S. Srinivasi Iyengar who appeared for the petitioner in C.R.P. No. 169 of 1924 urged three contentions:

(1) The first point urged by Mr. Srinivasa Iyengar is that Mr. Pethachi Chettiar was restored to his office and the effect of this restoration by the

meeting of the 8th September wa3 as if he never lost it. He relies on Symmsrs v. Regem [1776] 2 Cowp. 489. (See also Grant on Corporations

Section 248), In that case the defendant''s election depended on whether the votes of ten of the voters should be received. These ten voters ware

burgesses and for tan years acted as burgesses. There was an order of disfranchisement against them by the Common Council which proceeded

on the footing that they were burgesses. But the order of disfranchisement was set aside and they were restored in pursuance of peremptory writs

of Mandamus. On these facts Lord Mansfield said : ""But on looking, into it, this is no disfranchisement, nor is there a pretence for calling it so : but

it is doing that which the Common Council had not the semblance of a right to do; taking upon themselves to judge of the validity of an election ten

years before, and to declare it null and void for want of a qualification at that time.... But the fact is, it is no disfranchisement at all.... But upon

consideration, think, that let the restoration corner when it will, ''it relates to original right. It would be so in the case of a probable ground of

disfranchisement. But here there is rot a probable ground : there is no colour for a removal : the act of Common Council was a mere nullity, and the

restoration makes them in from the beginning."" In that case, it is clear from the above extracts that the act by which the ten burgesses were said to

have been disfranchised was an act of the Common Council which was a nullity. It was set aside. In such a case it was rightly held that the

restoration makes them in from the beginning. It is obvious that such a case can have no application to the facts before me. If, in any case of

restoration u/s 56(4) the effect is the same as if there was no cessation and the restoration relates to the original right and restores the holder as

from the beginning the words ""cease to hold his office"" in Section 56 become nugatory. If the object of the legislature is to wipe out the

intermediate cessation altogether, on condonation by the Board, the scheme would have been entirely different. The Act would then, instead of

providing for cessation of the office on the expiry of three months, have provided for the fact being reported as in Clause (4) and then, if it is not

condoned, for the cessation of the office. The scheme of the Act, as it is provides for the cessation as the result of failure to attend. The cessation is

the result of the statute. There is no question of its being void or of its being set aside. It cannot be set aside. The Board can restore him only from

the date of the order excusing his absence. An example of the opposite scheme is afforded by Section 52 of the Municipal Corporation Act (5 and

6 William IV, Ch. 76). See Hardwick v. Brown (1873) 8 C.P. 406 by Section 36. Sub-section 2, of the Municipal Corporation Act, 1882 until

the Council declares the office vacant, there is no vacancy, see Peace v. Lowden (1899) 1 Q.B. 386 and Reg v. Welchpool Corporation (1877)

35 L.T. 594 and by Section 46, Sub-section (6) and (7), of the Local Government Act, 1894 (Vide Dumley on Public Health Vol. I, page 1031).

There was, therefore, a vacancy in the office of the membership between 1st and 9th September. Mr. Pethachi Chettiar ceased also to be

President of the Taluk Board on 1st September and was never re-elected President.

Mr. Srinivasa Iyengar''s second contention u/s 35 of the Act is that the proposal and the voting of Mr. Pethachi Chettar should be deemed to be

valid. In the first place there is nothing in the section or any part of the Act about de facto or de jure members. When the Act speaks of a member,

President or Vice-President, it refers to a member, President or Vice-President validly elected or appointed according to the provisions of the Act

(Suctions 7 to 19, 54 to 56). It will lead to absurd and anomalous results if it is held that, if a person who was not a member, President or Vice-

President, acts as a member, President or Vice-President, the acts are valid; nor does the section say so. All that the section says is that the acts of

a person who is a member, President or Vice-President shall not be questioned on certain grounds. One of the grounds is not that the person

voting is not a member, President or Vice-President. In the present case, the membership of Mr. Pethachi is not questioned on the ground of any

defect in the establishment of the Local Board or on the ground that he was disqualified for membership. As a matter of fact, Mr. Pethachi Chettiar

was not under any disqualification (Section 53, 55 and 56). He was perfectly qualified for the office of membership of the District Board. His acts

are questioned on the ground that he was not a member of the District Board. The last clause of Section 35, has nothing to do with the matter.

That provides for the validity of the acts of Local Boards, Committees, Presidents or Vice-Presidents or members in cases when the Board is

incomplete, i.e., when the Presidentship or Vice-Presidentship or a membership has fallen vacant and has not been filled up. For example, when a

Board has no President, the acts of the Board, of the Vice-President or of the members are valid. Similarly, when there is no Vice-President, the

acts of the Board President or of the members are valid; also when one or more memberships are vacant the acts of the Board, the President the

Vice-President and other members are all valid. The section does not lend colour to such paradoxical propositions : as the act of the President,

when there is no President, is valid or the act of a Voice-President, when there is no Vice-President, is valid; or the act of a member when he is

not a member, is valid. Of course, the act of a member, when there is a vacancy in some memberships, is perfectly valid.

The present case affords an example of the application of the last clause of Section 35. On 8th September 1923, there was a meeting of the

Taluk Board of Karur. It had then no President, Mr. Pethachi Chettiar having by his absence for three months ceased to be a member Section

56(1)(A) and ceased to be the President [Section 15(1)]. The Board (which had no President) met. The Vice-President reported the fact that Mr.

Pethachi Chettiar vacated his office as member and President. The Board restored him to his membership. Section 35 provides that this act of the

Board was not invalid merely because the Board has no President.

I am therefore, of opinion that Section 35 does not help the petitioner.

Section 42 of the Municipal Corporation Act, 1882 (45 and 46 Vic Ch. 50) resembles Section 35, and with reference to it, a similar view has

been taken by Mathew and Cave JJ., in Nell v. Longbottom (1894) 1 Q.B. 767 and in Bland v. Buchanan (1901) 2 K.B. 75. They are cases of

disqualified voters. In the present case, the voter was not a member of the Board and in my opinion this is a stronger case.

The last point urged by Mr. Srinivasa Iyengar is that the validity of the membership of Mr. Pethachi Chettiar cannot be questioned collaterally in

another election petition. He first argues that proceedings ought to have been taken against Mr. Pethachi Chettiar himself u/s 57(1), but that section

cannot apply to ex officio members of the Board. It applies only to elected or appointed members. Section 8 of the Act shows that ex officio

members as class are different from elected or nominated members. Section 9(3), provides that, for the purposes of Sub-section (2), ex officio

members who do not hold a salaried office under Government shall be deemed to be elected members, and shows that ex officio members,

holding such office cannot be deemed to be elected members even for the purpose of calculation of proportion and must form a distinct class. For

purposes other than Sub-section (2) ex officio members are a distinct class.

Mr. Srinivasa Iyengar relies on Symmers v. Regem [1776] 2 Cowp. 489 for the point also. (See also 8 Halsbury''s Laws of England, para. 355

at page 799). Lord Mansfield says: ""it is true, that, in general, the person elected must take upon himself to support the right and title of his electors

: ""it is so in a variety of cases. In the election of Aldermen of the City of London, Corners, Members of Parliament, etc., all these, are bound to

support the right of their electors."" This is against the petitioner. Lord Mansfield then says : ""But, for the sake of justice and convenience, a

distinction has been made in cases where the right of election depends upon corporate franchises; There are qualifications to the exception, such as

have been stated by Mr. Buller. The general question has never been fully settled, though it has been touched upon in many cases."" All this is

scarcely authority for the petitioner. His further remarks at page 1210 [98 E.R.] and again at page 1212 as to freemen in their corporate

description have no application here. Again at page 1212 he says : ""In cases of elections in the City of London, certain qualifications are required

at the poll: therefore, it must be seen that in some degree the candidates have that qualification,"" and at page 1213, he says : ""Suppose a corporate

body consisting of twenty-four were to add ten to their number. That would be an absolute nullity; because they never were corporators de facto.

But the present question is, whether in a quo warranto against particular members you can-go into the title of other corporators de facto, etc.

The case before me is not one of quo warranto proceedings. In Nell v. Longbottom (1894) 1 Q.B. 767 and Bland v. Buchanan (1901) 2 K.B.

75 already cited by me, the judges were of opinion that the validity of a vote in an election petition may be questioned. It is true that Channel, J., in

the later case considered the reasoning in the former inconclusive, but, apart from the reasoning, he was of opinion that it was right. In those cases,

it was not considered that the proceeding quo warranto were the only remedy. One of the objects of an election petition is to see if there is an

improper reception or refusal of a vote. See Rule 11, Clause (c) of the Rules for Conduct of Inquiries, G.O. No. 650. I do not see how this object

is to be achieved if the validity of the vote or the right of the voter to vote is not to be examined. In my opinion the rule makes it clear that the

position of the voters can be and ought to be scrutinised. It is suggested that the Full Bench decision in Parthasaradhy Naidu v. Koteswara Rao

AIR 1924 Mad., 561 decides the point in favour of the petitioner; in my opinion it does not. All that was held in that case was that, where an

election petition was filed and the validity of the vote of one of the members was questioned u/s 67, on grounds other than those mentioned in

Section 57, the District Judge had no jurisdiction to enquire into the petition, the grounds mentioned in Section 57 not being even alleged. I stated

so expressly at page 380 Waller, J. said at page 381 : ""He cannot disqualify them save on grounds that are not applicable here."" Schwabe, C.J.,

said, ""what he has jurisdiction to decide is whether a person so appointed is disqualified u/s 55 or Section 56 and nothing else.'' The rest of the

sentences of Schwabe C.J., ought to be considered in the light of the above observations. I do not think that case lays down that the validity of a

vote cannot be questioned. In that case the person whose appointment as a member was in question was also the person elected as President.

Rule 1 of the rules provides that, except by Section 57, no election can be questioned except by an election petition. In the present case it is not

the election of Mr. Pethachi Chettiar that is being questioned, but the fact of his membership; The effect of Section 57 and the rules is that, in the

cases of elected members, the validity of the election can be questioned by (1) an election petition under the rules, or (2) by a petition u/s 57. In

the latter case the petitioner is confined to certain grounds. The election cannot be questioned in any other way. In the case of a nominated

member, the validity of his membership can be questioned by a petition under S57 only on the grounds alleged in it but there is nothing in the Act to

prevent the fact of the membership of a person claiming to be an ex officio member from being questioned. In Forrester v. Norton [1911] 2 K.B.

953 the election of a person as Alderman and Mayor of the Borough was questioned on the ground that he was not validly re-elected a Councillor.

The question whether the election as Councillor WAS valid was fully considered. It was found that, though he was disqualified, his election not

being questioned within one year, the election became valid u/s 73. (No such provision like Section 73 exists in our Act curing the effect of a

disqualification by lapse of time.) The question whether the election could be valid if one year did not elapse was expressly raised by Channel, J.

This case is against the petitioner''s contention. Channel, J., takes care to say : ""I must not, however, be understood to say that all de facto

Councillors are Councillors within that section"". In R v. Mayor and Common Council of Bedford [1795] 8 Mad. 34 where the Council of a

Corporation was to elect 13 Common Council men out of 25 burgesses and the 13 should elect the Mayor by a majority, the election of Mayor

was held to be void on the ground that one of the 13 Council man was only a freeman and not a burgess and was not validly elected as a Council

man. It is true that, in R. v. Mein [1790] 3 T.R. 596 it was held that the rule that the title of the electors is not to be brought in question by

attacking the title of the person elected by them does not apply when there is no method of prosecution by which the title of the electors may be

questioned in the first instance. I already held that Section 57 does not apply to ex officio members. Whether proceedings quo warranto lie or not

is not clear, and the possibility of it ought not to stand in the way of the membership being questioned having regard to all the other cases. Neither

in this nor in Nell v. Longbottom (1894) 1 Q.B. 767 and Bland v. Buchanan (1901) 2 K.B. 75 was any reference made to the possibility of quo

warranto proceedings or such possibility being an obstruction to the validity of the vote being considered. The authorities cited by either side on the

question whether a mandamus or a quo warranto proceedings, viz., (10 Halsbury 81) B. v. Corporation of Bedford, [1800] 1 East 79 R. v.

Mayor of Chester [1855] 25 L.J.Q.B. 61 are not relevant. I, therefore, decide that the validity of the vote of Mr. Pethachi Chettiar can be, and

ought to be decided in this election petition. See also Rogers on Elections, page 128. The result is Civil Ravision Petition No. 169 of 1924 H

dismissed with costs. Pleader''s fee the minimum for a civil revision petition

Civil Revision Petition No. 254 is by the '' respondents. in Civil Revision Petition No. 169 of 1924. The point raised by them is that there ought

not to be a fresh election, but that 1st respondent ought to have been declared elected. Mr. Krishnawami Iyer relies on Brown v. Benn [1889] 5

T.L.R. 247 and Monks v. Jackson [1876] 1 O.P.D. 683 and R. v. Hawkins [1808] 10 East. 211 and Rodgers on Elections, pages 137 and 128.

These authorities support him. Bat here we are concerned not ''with English practice, but with our own rules. Under Rule 12, the Sub-Judge has a

complete discretion either to declare the only other candidate elected or to order a fresh election. Seeing that the petitioner in Civil Revision

Petition No. 169 was himself qualified to be a Vice-President and he loses his election on the ground of a defect in the proposer''s qualification. I

think the Subordinate Judge exercises his discretion rightly. Nor will I interfere with his order as to costs. The result is Civil Revision Petition No.

251 is also dismissed with costs. Headers, fee : minimum in a civil revision petition.