AHAMAD THAMBI MARACAYAR Vs. BASAVA MARACAYAR

JUDGEMENT

(1.) Three main points have been argued on this petition, (1) whether the statutory rules for the election of the Chairman were broken, (2) whether having found that they were broken the lower Court was not bound to find further that that breach had materially affected the result of the election, before it could set aside the election, (3) whether if the Court has neglected so to find, this Court can, and, if it can, will, interfere in revision, and in what manner it should so interfere.

(2.) As to point (1) whether the election rules have been broken, the lower Court's finding appears to me to be a, finding of fact, which in revision, this Court will not ordinarily disturb. It is pleaded for petitioner that the lower Court's finding is vitiated by a fundamental misreading of the rules which are statutory rules, i.e., that it is based on an error of law. Rule 4 lays down that: no candidate whose name has been proposed and seconded shall take part in a ballot.

(3.) It is admitted that petitioner, whose name had been duly proposed and seconded, himself presided at the meeting and conducted the ballot, opened the ballot box, counted the votes and acted as Returning Officer. I am in full agreement with the lower Court that this is "taking part in a ballot," and that that phrase is not restricted, as petitioner argues, to the mere act of voting. The rule has clearly been framed to carry out the salutary principle that no man shall be a Judge in his own cause, and that it should not be in the power of one vitally interested in the result to decide on such questions intimately affecting the result, e.g., the validity of a particular vote, as the officer presiding at the ballot has to decide. The English Law on this subject is quite plain, see The Queen V/s. Owens (1869) 2 El. & El., 89., The Queen V/s. White (1867) 2 Q. B., 557. and other cases cited on page 115 of Volume III of Rogers on Elections, 18 Edition, viz., that a candidate is precluded from acting as Chairman at an. election and is incapable of acting as a Returning Officer, and that if he so acts and is elected, his election is voidable on petition ad hoc. Rule 4,1 have no doubt, was designed to carry out the principle of English Law.