TMI Blog1926 (10) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... efuse an interim order, had I not had prima facie grounds to satisfy myself that some of the questions raised were of such importance that even the consequences of the stopping of the election would not comparatively be by any means serious. It was thereupon that I issued an order nisi and made it returnable on the following morning to be heard as the very first motion in the list. 3. The order nisi issued by me was in terms merely restraining the Commissioner from holding the election until further order of Court and it was so made expressly for the purpose of enabling the Commissioner to hold the election on the 30th itself if in the course of the day I should come to the conclusion that the rule should not be made absolute and should be discharged. But as it was, neither side was able to finish the argument on that day and Mr. Rangaswami Aiyangar the learned vakil for the respondent also intimated to me that there was no idea of holding the election that day in any case. The matter has now been argued at great length on both sides by Mr. N. Chandrasekara Iyer for the applicants raising every possible contention and with great ingenuity and astuteness, and by Mr. S. Rangaswami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to his nomination for election having regard to the terms of Section 52 Clause 1 (b) (4) of the Madras City Municipal Act which disqualifies a Presidency Magistrate for election as a councillor, sent in his resignation as the Honorary Presidency Magistrate on or about 11th August, but that the notification of the Government accepting his resignation did not appear till the 19th of August, that is to say, two days after the date fixed for the nomination of the candidates for the division. On the ground, therefore, that the said Lakshmanan Chetty was at the date of the nomination a Presidency Magistrate, an objection to his nomination was preferred before the Commissioner of the Corporation purporting to be under Rule 4 of the rules framed for the nomination of candidates and for the conduct of divisional elections. The Commissioner upheld the objection and disallowed the candidature of Lakshmanan Chetty, and thereupon under the same rule a revision petition was filed before the Chief Judge of the Small Cause Court at Madras and he delivered his decision confirming the decision of the Commissioner, on the 21st of September 1926. 7. Thereupon by notification in the Official Gazet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it should be held only in the months of August or September. If such had been the intention of the Legislature, the intention might easily have been clearly indicated, for instance by the addition after the words filled at ordinary elections of some such words as held in the month of August or September or by enacting a separate clause for the purpose. As it is, the provision is only in the nature of a direction to the Commissioner and even if the direction shall be regarded as mandatory, it would only indicate that the power of the Commissioner to fix a date is limited to the months of August and September. 11. By Clause 1 of the same section, the noon of the first day of November following is fixed for the purpose of the old term of office ceasing and the term of office of the new councillor beginning and in the following section (Section 56) provisions are made for the contingency of the vacancy not being filled by election. Under Sections 59 and 347 the Governor-in-Council is authorised to make the rules for the purpose of regulating the procedure with regard to elections. Such rules have been framed, and while in those rules provision is made for the Governor-in-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontingency or more than once. Such argument has become possible and even plausible because of the very unsatisfactory way in which the rules have been loosely worded. 14. It seems to me that it will not be a proper construction of the rule to hold that the Governor-in-Council is by the rule vested with any power to be exercised only on the happening of a contingency; but the correct view would be to regard the rule as one providing for the exercise in a specific instance by that authority of the undoubted power vested in the authority and recognized by that rule of fixing a fresh date for the election. It may be doubtful whether the Commissioner himself having once fixed a date for election is empowered to fix another date without reference to the Governor-in-Council if for any reason he should deem fit to do so. But it is clear that under Rule 5, when the particular contingency referred to therein should happen, the Commissioner is required to report the matter to the Governor-in-Council and have a fresh date fixed by them. It is possible that this rule was made specially having reference to the power reserved in the rule for the Governor-in-Council dispensing in special cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of force in this contention. But it seems to me that the three days referred to in Rule 5, are the three days indicated in Rule 6 and not any different period of three days. It strikes me that the framers of the rules intending to provide in Rule 6 three days' notice at least for all elections, made, by way of anticipation, in Rule 5 provision for the date fixed for the election happening to fall less than three days after the decision with regard to the validity of the nominations of candidates. It will therefore be proper and convenient to deal with this objection also only as part of the objection based on R. 6 with which I now proceed to deal. 17. It was argued by the learned vakil for the petitioners that Rule 6 is not one of the rules which can be dispensed with under the provisions of Rule 5 or in other words, the provision in Rule 6 should be observed with regard to all elections, and as that rule, on a proper interpretation, provides for three days' notice being given of all elections the election notified to be held on the 30th without such three days notice is bad. 18. It seems to me that there can really be no answer tc this objection as regards the electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the candidates for the election. 20. If the contention of the learned vakil for the respondent should be accepted, it comes to this that the Commissioner may on the first of a month publish the schedule of candidates for election as divisional councillors for the particular division and may hold the election without at all notifying the date of the election to the voters or candidates or giving only some notice on the previous day. It is impossible to accept a contention that would necessarily lead one to suppose that the rule-making authorities intended any such preposterous result. If this rule should not be construed as providing for notice of the date of the election there is no other rule, providing for such notice, at any rate, in cases where the date of the election is changed. I have therefore very little hesitation in repelling this contention put forward on behalf of the respondent. 21. Though I have thus come to the conclusion that the notification of the 28th of September fixing the election to be held on the 30th was illegal; as being against Rule 6 it does not of course necessarily follow that I would be justified in issuing a mandatory order under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of any election for which a new date is fixed, but cannot dispense with or affect the substantive rights of voters in respect of the election. It was argued that an election included nomination, objections to nomination and decision with regard to the objections which are all integral and necessary parts of an election and that in Rule 5 it is provided not that Rules 2, 3 and 4 may be dispensed with but that only the procedure prescribed in Rules 2, 3 and 4 need not be repeated. The real intention of the rule-making authority, it was argued, is that in respect of every election for which a date is fixed the process of nominations of candidates, etc., should be gone through and that the Governor-in-Council may only by special order direct that the prescribed forms or the manner of making objections or the authority to decide objections, may all be dispensed with or altered and that the Governor-in-Council has no authority to dispense with nominations altogether. After giving my earnest consideration to the argument very strenuously advanced by the learned vakil for the applicants on this point, I find it impossible to accede to the contention There is no warrant for the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l reason may be for the authorities having exercised the discretion in the manner they have purported to do, it seems to me that with regard to such a contention as now under discussion I cannot possibly hold that after the authorities so dispensed with Rules 2, 3 and 4, there is still any right of nomination of candidates or any right in the Court to review the discretion so exercised. 26. Mr. Chandrasekara Iyer sought to reinforce his argument about the liability of the respondent to accept fresh or further nominations by pointing out that in Rule 5 the procedure prescribed only by Rules 2 3 and 4 can be dispensed with and that Rule 1 can never be so dispensed with. He argued that the term election includes every process and step taken with a view to filling up a vacancy and as there is no provision to dispense with Rule 1 every time a fresh date for election is fixed under Rule 5 the process indicated in Rule 1 should be followed. It seems to me impossible to accept such a contention. Excepting the time and place of election, Rule 1 has no reference whatever to any process or step with regard to the particular election, and when under rule 5 the date is altered it is absurd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation by the Governor-in-Council. Even on the part of the respondent it was not sought to be set up that the notification was in fact by the Governor-in-Council. I state this because of the admission made by the learned vakil for the respondent before me in spite of the fact that in the affidavit filed by the respondent he has for some inexplicable reason alleged that the fixing of fresh dates on both the occasions, the making of the notifications, the dispensing with Rules 2, 3 and 4. were all only by the Governor-in-Council. 29. When I questioned Mr. Rangasami Aiyangar as to how such allegations came to be made, he answered that the expression was used in the affidavit in order to correspond to the expression used in the rules and merely for the purpose of indicating that the authority was the proper authority. The real contention on behalf of the respondent with regard to this matter was that after the passing of the City Municipal Act and also after the enactment of the rules under consideration the Government of India Act of 1919 came into operation and Section 46 of that Act provided for the transfer of various subjects to be administered by the Governor acting with minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is used. But I believe it is for the purpose of covering and comprising all such cases that the language was employed in Section 31 of Act XXXI of 1920, that whatever may be the form of words, it is sufficient if the reference is to an authority authorized to administer executive Government. After carefully considering the matter, I have come to the conclusion that the reference to the Governor-in-Council in the Act could not in consonance with the general intent, be regarded as anything other than a reference to the executive Government. There would even then of course remain the further question whether there is anything in Section 31 above cited to show that the powers reserved under the Act to the Governor-in-Council even as executive Government should be regarded as pertaining to the transferred subjects and transferred to the ministerialist part of the Government. I should have felt great difficulty in dermining the question satisfactorily as a matter of legal construction had it not been for the word corresponding in Section 31. The reference being to corresponding new authority full effect can be given to the word corresponding only if we should take into considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order or proceeding is authenticated in the manner referred to the order or proceeding could not be called into question in a Court of law. I feel therefore constrained to hold that the notification in question has not been proved to be so authenticated as required by the said Section 49 as to save it from being called into question. 37. No doubt if the notification had been properly authenticated and the authentication was to the effect of the notification having been promulgated by the Governor with the ministers, it would not in the least matter whether, as a matter of fact, the notification was promulgated by the Governor with the ministers or not. It would have been conclusive and not capable of being questioned in a Court of law. But not only is there no proof of any proper authentication; but even the notification does not purport to have been issued by the Governor with the ministers. When I questioned the learned vakil for the respondent with regard to this, he invited my attention to Section 78 of the Evidence Act Clause 1. That section applies only to proof of documents, or in other words it is only a provision for the notification being proved by the production of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting with the ministers by which I must understand all the ministers. In fact, in a supplemental affidavit filed on behalf of the applicants it was charged that, as a matter or fact, His Excellency the Governor and even the minister for Local self-Government could not have been a party to the order, because both of them were absent from Madras on the date and there was between the hour of communication from the respondent, the Commissioner, and the publication of the notification in the Gazette, no time for an order being issued by the Governor with the ministers. 39. There was no attempt made on the part of the respondent to show (even if it could be shown aliunde, that is to say, apart from the notification itself) that as a matter of fact, the notification was the result of an order made by the Governor with the ministers. When it is remembered that Rule 5 contemplates not merely the fixing of a date but also the exercise of an important judgment with regard to the dispensing with Rules 2, 3 and 4, it seems to me that the requirement of the rule that the dispensing with shall be by the special order of the Governor with the ministers must be strictly carried out. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be merely a nominal election as there was only one candidate. That may be so; but if, as I have found, the notification dispensing with Rules 2, 3 and 4 is not effective for the purpose, then it follows that there was no proper date fixed for election and that fresh nominations should also have been received. The right to nominate a candidate is undoubtedly part of the franchise and I fail to see how a denial of that right does not constitute a denial of the franchise. 42. The respondent's vakil also argued that there was no breach of duty by the Commissioner. On my findings it is perfectly clear that if the notification was not valid and he purported to act on the strength of that notification there was breach of duty. In any case, the provision in Rule 6 is perfectly clear that notice of three days should be given and the omission to give it is a clear omission to do that which was incumbent on him. 43. It was also attempted to be argued on behalf of the respondent that the petitioners had other adequate and legal remedy such as by suit. I do not propose to discuss this question at any great length. There is a decision, though unreported, by the present Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, any other construction of the expression should be adopted, it will result in the Court being unable in most matters to make any order against any public servant of Government who may also be under statutory obligations towards the public as in this case to conduct himself in a particular manner. The order, if and when made, will only be against the Commissioner requiring him to do an act or refrain from doing an act and it is impossible to see that such an order can be regarded as an order binding on the Government, except in the sense that the Government may have no power to direct the Commissioner to the contrary. 45. The learned vakil for the respondent urged in conclusion the usual argument in all such cases, that whatever might be the rights and wrongs of the matter, the Court should not in the exercise of its discretion pass the order applied for. But as have already observed there would have been considerable force in such an argument if all that had to be done in the fresh election was only to hold a nominal election uncontested with only one candidate and requiring only a few formal votes to be recorded. As already indicated by me if I have come to such conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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