L S M GOVINDASWAMI PILLAI Vs. RAMALINGASWAMI PILLAI

JUDGEMENT

(1.) This is an application for issue of a writ of certiorari to the Election Officer, Tanjore Municipality. The petitioner was a candidate for election as Councillor to one of the wards of the Tanjore Municipality. Under Section 49 of the District Municipalities Act, any person who is interested in a subsisting contract made with, or any work being done for, the Municipal Council except as a shareholder in a company is disqualified for election as a Municipal Councillor. Under the rules made under the Act, the Officer who has to deal with the nomination papers of the candidates is the Election Officer. His duty is to receive nomination papers and under Rule 7(2) to examine them and decide all objections which may be made at the time to any nomination and, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the grounds mentioned therein. One ground given is that a candidate is ineligible for election under Section 48 or Section 49 of the Act. Objection was taken to the reception of Ihe nomination paper of the petitioner here on the ground that he was disqualified under Section 49 of the Act by reason of the fact that he was interested in a subsisting contract with the Municipal Council; and the Election Officer after an inquiry rejected the nomination paper finding that he was interested in a subsisting contract with the Municipality. Hence this application for a writ of certiorari. "On the last occasion, we directed notice to the Government Pleader and other persons at the request of Mr. Vinayaka Rao, who then appeared for the petitioner here and ordered an interim stay of the election. The first respondent here of those other persons was the only one who received notice and appears here by counsel.

(2.) It is urged by Mr. Rajah Aiyar that this is a proper case for the issue of a writ of certiorari. But the Government Pleader contends that it is not, because it is only in cases where the Court or the Officer whose acts are sought to be made the subject of certiorari has acted without jurisdiction or in excess of jurisdiction or assumed a jurisdiction which it or he ought not to have assumed, that a writ of certiorari can issue. The second point is that even if he has acted in excess of his jurisdiction, writ of certiorari is a discretionary remedy and one which will be seldom exercised. Thirdly, he argues that the discretion of the Court where it exists should not be exercised in cases where there is another remedy to the hand of the petitioner.

(3.) The first question to be decided here is whether the Election Officer had jurisdiction, whether he acted in excess of it or assumed a jurisdiction which he ought not to have assumed. Clearly, the Election Officer had jurisdiction. The Act gives him jurisdiction, and him alone, to examine the nomination papers and scrutinise them and listen to objections and, having listened to those objections, to decide whether the nomination papers should be received or rejected. This has been the subject of a decision by the Calcutta High Court, even if it required any authority. Reference was made to Manindra Chandra Nandi V/s. Provas Chandra Mitter (1924) I.L.R. 51 C. 279 a decision of Sanderson, C.J. and Richardson, J., in an appeal which came up to them from a judgment of Page, J. There the Returning Officer after summary inquiry acceded to the objection raised that the appellant there was not eligible for election to the Bengal Legislative Council on the ground that at the date of his nomination he was a member of the Council of State and rejected his nomination. It was held in the circumstances that the High Court should not interfere in the proceedings and question the validity of the Returning Officer's decision. On page 287, Page, J., says as follows: In my opinion the duty to be performed by the Returning Officer under Regulation 21 is not ministerial but judicial, and the function with which he is thereunder entrusted is to entertain all abjections duly made to nominations which have been properly presented to him under the rules, and to decide, having regard to such objections, whether the nomination impugned is to be accepted or rejected ; provided always that he is not entitled to refuse a nomination except upon one of the grounds specified in Regulation 21. At the scrutiny of nominations on the 11 October, the Returning Officer rejected the nomination of the applicant on grounds 1 and 3 of Regulation 21, because he found as a fact that at the date of his nomination the applicant was a member of the Council of State. In my opinion, whether or not the applicant at the material time was a member of the Council of State, and if so, whether his nomination paper ought to be refused, were matters within the ambit of the Returning Officer's jurisdiction, and it was his duty under the rules to decide them.