C JANARDHANAN Vs. NMVERGHESE

JUDGEMENT

(1.) These are two applications under Section 115 of the Civil P. C. to revise the common order passed by the Subordinate Judge of Cochin on two applications put in by the respondents against the petitioners who were declared to have been elected in two wards in the town of Cochin to have their elections set aside. The petitioners objected before the Subordinate Judge that the petitions filed against them did not disclose any grounds on which an enquiry could be held under Rule 11 of the Election Enquiry Rules framed by the Governor in Council, Madras, and published in the Fort St. George Gazette, dated 30 November, 1920; and they asked therefore that the petitions should be dismissed without any enquiry. The Subordinate Judge, however, pronounced a common order in both cases deciding that the petitions did disclose reasons for going into evidence and for holding an election enquiry. it is against that order that these revision petitions have been filed in this Court.

(2.) A preliminary objection has been taken by the learned vakil for the respondent before me that I should not interfere under Section 115 of the Code of Civil Procedure as the order of the Subordinate judge was an order passed in the course of the election enquiry and that this Court should not interfere with such interlocutory orders. I am not able to support this objection, because it seems to me that if as the learned vakil for the petitioners argues the election petitions did not disclose any ground for an enquiry, the Subordinate Judge will be exercising a jurisdiction not vested in him by holding such an enquiry and to hold it will simply lead to waste of time of the Court and of the parties. In such a case it seems to me that it is but right and proper that this Court should decide whether the petitions disclose any grounds for holding an enquiry and, if they do not, this Court should say so at once and stop the enquiry at the very outset. The question then which has to be considered is whether these election petitions filed disclose any ground for an election enquiry. Rule II of the rules already referred to says what the circumstances are under which the election of a candidate can be declared to be void. There are three sub-clauses to the Rule (a), (b) and (c); and (b) has four sub-divisions. Unless the objections raised in the election petitions can be brought under one or other of these clauses it is clear that the election petitions should be rejected in limine. The only point taken in the petitions in this case is that the candidates who have been declared elected, were wrongly put upon the electoral roll because they had not paid their taxes and that one of them was not a resident within the Municipality. It is contended that on account of these objections these candidates should not have been put on the electoral roll. With regard to one of the men these objections were taken before the revising authority after the preliminary electoral roll had been published but that authority overruled the objections and continued his name on the roll. As regards the two others no objections were taken before the revising authority and their names appeared on the roll as those of fit and proper persons to vote and to stand as candidates for election. Rule 8 (a) of the rules for the preparation of the electoral rolls makes it quite clear, as the Subordinate Judge himself has noted, that the electoral roll when finally settled must be taken as final for the purposes of election proceedings. It says, " No failure to observe the dates prescribed in these rules or to observe other directions regarding the preparation of the electoral roll shall entitle any one to question the validity and conclusiveness of the registers in election proceedings." To get rid of the effect of this rule which gives finality to the electoral roll it was argued that the word " proceedings " applied only to proceedings taken for election and that as soon as the election was over and an election enquiry was started, it was no longer an election proceedings; in other words, it was contended that " election proceedings" do not include an election enquiry at all. This argument was accepted by the Subordinate Judge. But it seems to me it is clearly erroneous. " Election proceedings " include all proceedings relating to an election until it is finally determined who the candidate is who has been properly elected. It thus includes an election enquiry. This is the view that has been taken by this Court in a recent case, Palanisami Pillai v. Srinivasarangachariar (1924) 47 MLJ 795 and I respectfully agree with it. It seems to me that to hold otherwise will lead to an absurdity, for there is no object whatsoever in making the electoral roll final for the purpose of election if the whole thing can be reopened by making it possible for a candidate who has been disappointed to put in a petition and get it decided by a Court whether the electoral roll was a proper roll or not. The very object of making the electoral roll final is to avoid the difficulty of a candidate standing for election who can afterwards be objected to as disqualified or canvassing for votes from people who might afterwards be declared to be improper voters. For the purposes of an election a roll has to be settled and after that is settled, it must be taken as settled for all purposes of the election up to the very end till it is finally declared who the properly elected, candidate is.

(3.) It was attempted to be argued that Rule 8 (a) would not apply to a case where a candidate has failed to pay his taxes, because it was said that the rule, which lays down that the name of a person who has not paid taxes shall not be included in the electoral roll, is a provision in the Act itself in Section 46, and that Rule 8 (e) does not deal with objections based on the provisions of the Act. There is however nothing in the wording of Rule 8 (e) to exclude any such objection. " Failure to observe other directions " mentioned in it is not confined to directions in the rules but include directions in the Act as well.