Thirumala Chettiar vs Chellam Pillai

Curgenven, J.—This is an application for a Writ of Certiorari to vacate the order of the District Munsif of Ambasamudram as Election

Commissioner in O.P. No. 72 of 1932 on his file. The order declared the election of the Petitioner void and directed a re-election.

We have heard some argument as to whether a Writ of Certiorari lies against the order of an Election Commissioner. Mr. T. M. Krishnaswami

Aiyar has scarcely contested that on all ordinary principles such a Writ would lie, the test of course being whether the officer against whose

proceeding it is directed was acting in a judicial capacity. A construction of that phrase which we think we may adopt here has been given by

Scrutton, L.J. in Rex v. The London County Council (1931) 2 K.B. 215, where he says:

It is enough if the tribunal in question is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a

proposal and an opposition.

In the present case it is clear that the tribunal was exercising functions of a judicial character and indeed by Rule 6 of the Local Board Rules for

the decision of disputes it is provided that every election petition shall be enquired into as nearly as may be in accordance with the procedure

applicable under the Code of Civil Procedure, 1908, to the trial of suits. The only case decided on this point is a decision of Bardswell, J. in M.

Shanmuga Mudaliar Vs. S. Subbaraya Mudaliar and Another, . But the learned Judge was not there called upon to discuss whether a Writ-would

lie.

A more specific objection has been raised that the amended Rule 1(3) of the Local Board Rules has been so framed as intentionally to exclude

the jurisdiction of this Court to issue a Writ. What appears to have happened is that the Full Bench ruling in Parthasaradhi Naidu v. Koteswara

Rao ILR (1923) Mad. 369 : (1923) 46 M.L.J. 201 held that an Election Commissioner was not a persona designata but a Court, so that the

ordinary revisional procedure of this Court would have application. The amendment was evidently designed to exclude that jurisdiction. But it has

had no effect in altering the character of the inquiry which the Election Commissioner has to undertake or in making it any the less a proceeding of

a judicial character. And we think it is not arguable that the Legislature can directly or indirectly deprive this Court of the jurisdictional powers

which it has in the case of all such judicial proceedings, or indeed that any such result was contemplated by the amendment. Accordingly we think

that a Writ will lie in a case of this character.

It is not to be disputed however that it is of a purely discretionary character and only to be resorted to where the merits of the case call for it.

We can find no such merits in the present instance. The first point raised is that the petition was presented not directly to the District Munsif in his

capacity as Election Commissioner but to his Head Clerk. The rule certainly says that it shall be presented to the Election Commissioner but it does

not, like for instance the CPC in the case of a plaint, require any intermediary for this purpose to be specially appointed by the Officer. There is no

question that in the present case the petition reached the hands it was intended for and we think that the rule was sufficiently complied with by so

presenting it and that it would be too strict a construction to require that it should be placed in the hands of the District Munsif himself. The

objection that the deposit of Rs. 25, which has to be made with the application, was not so made appears to be without any foundation because

we find that it was tendered on the date of presentation, 11th June, and accepted on that date. It is lastly said that the learned Election

Commissioner has not recorded a definite finding upon the question whether the Petitioner committed an offence described in Rule 10 of the rules,

vis., that he should have committed or abetted the commission of any election offence falling u/s 58 of the Act.* The finding appears to be that in

the case of three voters the present Petitioner stated to the Polling Officer that they were the real voters and this was found to be untrue, and the

cases were found to be cases of false personation. The learned District Munsif has not stated this in very clear language but that undoubtedly is the

finding at which he has arrived and we cannot interfere with it.

The application is accordingly dismissed with costs. Vakil''s fee Rs. 100.