S K DEVASIGAMONY Vs. MRSETHURATNA IYER

JUDGEMENT

(1.) The facts are simple and are not in dispute. The office of the Vice-President, District Board, Trichinopoly, fall vacant and there was a fresh election on 6th October 1923. The 2nd respondent was proposed by Dewan Bahadur Pethachi Chettiar who also voted for the candidate proposed by him. An objection was taken that the proposer was not legally a member of the District Board, but was overruled. The 2nd respondent obtained 22 votes while the 1 respondent, the rival candidate, got 21 votes. The ground on which the membership of Mr. Pethachi Chettiar is questioned may be stated thus : Originally he was President of the Taluk Board of Karur, and as such ex-officio member of the District Board ( Section 8 of the Act). He absented himself for three suoc3S9ive months (June, July and August) from the meetings of the Karur Taluk Board and under Section 56(1)(h) he ceased to hold his office. When he ceased to be a member of the Taluk Board, he vacated also his office as President of the Taluk Board under Section 15(1). Under Section 56(4) the Taluk Board of Karur on 8 September 1923, restored him to his office as member of the Taluk Board, but thereby he was not restored to the Presidentship of the Taluk Board of Karur. He could become President of the Taluk Board of Karur only by a fresh election ( Section 17). There was no such election. If he was not President of the Taluk Board of Karur, he was not ex-officio member of the District Board. The argument was accepted by the Sub-Judge of Trichinopoly in O.P. No. 9 of 1923, and both sides have filed revision petitions.

(2.) Mr. S. Srinivasi Iyengar who appeared for the petitioner in C.R.P. No. 169 of 1924 urged three contentions: (1) The first point urged by Mr. Srinivasa Iyengar is that Mr. Pethachi Chettiar was restored to his office and the effect of this restoration by the meeting of the 8 September wa3 as if he never lost it. He relies on Symmsrs V/s. Regem [1776] 2 Cowp. 489. (See also Grant on Corporations Section 248), In that case the defendant's election depended on whether the votes of ten of the voters should be received. These ten voters ware burgesses and for tan years acted as burgesses. There was an order of disfranchisement against them by the Common Council which proceeded on the footing that they were burgesses. But the order of disfranchisement was set aside and they were restored in pursuance of peremptory writs of Mandamus. On these facts Lord Mansfield said : "But on looking, into it, this is no disfranchisement, nor is there a pretence for calling it so : but it is doing that which the Common Council had not the semblance of a right to do; taking upon themselves to judge of the validity of an election ten years before, and to declare it null and void for want of a qualification at that time.... But the fact is, it is no disfranchisement at all.... But upon consideration, think, that let the restoration corner when it will, it relates to original right. It would be so in the case of a probable ground of disfranchisement. But here there is rot a probable ground : there is no colour for a removal : the act of Common Council was a mere nullity, and the restoration makes them in from the beginning." In that case, it is clear from the above extracts that the act by which the ten burgesses were said to have been disfranchised was an act of the Common Council which was a nullity. It was set aside. In such a case it was rightly held that the restoration makes them in from the beginning. It is obvious that such a case can have no application to the facts before me. If, in any case of restoration under Section 56(4) the effect is the same as if there was no cessation and the restoration relates to the original right and restores the holder as from the beginning the words "cease to hold his office" in Section 56 become nugatory. If the object of the legislature is to wipe out the intermediate cessation altogether, on condonation by the Board, the scheme would have been entirely different. The Act would then, instead of providing for cessation of the office on the expiry of three months, have provided for the fact being reported as in Clause (4) and then, if it is not condoned, for the cessation of the office. The scheme of the Act, as it is provides for the cessation as the result of failure to attend. The cessation is the result of the statute. There is no question of its being void or of its being set aside. It cannot be set aside. The Board can restore him only from the date of the order excusing his absence. An example of the opposite scheme is afforded by Section 52 of the Municipal Corporation Act (5 and 6 William IV, Ch. 76). See Hardwick V/s. Brown (1873) 8 C.P. 406 by Section 36. Sub-section 2, of the Municipal Corporation Act, 1882 until the Council declares the office vacant, there is no vacancy, see Peace V/s. Lowden (1899) 1 Q.B. 386, and Reg V/s. Welchpool Corporation (1877) 35 L.T. 594, and by Section 46, Sub-section (6) and (7), of the Local Government Act, 1894 (Vide Dumley on Public Health Vol. I, page 1031). There was, therefore, a vacancy in the office of the membership between 1 and 9th September. Mr. Pethachi Chettiar ceased also to be President of the Taluk Board on 1 September and was never re-elected President.

(3.) Mr. Srinivasa Iyengar's second contention under Section 35 of the Act is that the proposal and the voting of Mr. Pethachi Chettar should be deemed to be valid. In the first place there is nothing in the section or any part of the Act about de facto or de jure members. When the Act speaks of a member, President or Vice- President, it refers to a member, President or Vice-President validly elected or appointed according to the provisions of the Act (Suctions 7 to 19, 54 to 56). It will lead to absurd and anomalous results if it is held that, if a person who was not a member, President or Vice-President, acts as a member, President or Vice- President, the acts are valid; nor does the section say so. All that the section says is that the acts of a person who is a member, President or Vice-President shall not be questioned on certain grounds. One of the grounds is not that the person voting is not a member, President or Vice-President. In the present case, the membership of Mr. Pethachi is not questioned on the ground of any defect in the establishment of the Local Board or on the ground that he was disqualified for membership. As a matter of fact, Mr. Pethachi Chettiar was not under any disqualification ( Section 53, 55 and 56). He was perfectly qualified for the office of membership of the District Board. His acts are questioned on the ground that he was not a member of the District Board. The last clause of Section 35, has nothing to do with the matter. That provides for the validity of the acts of Local Boards, Committees, Presidents or Vice-Presidents or members in cases when the Board is incomplete, i.e., when the Presidentship or Vice-Presidentship or a membership has fallen vacant and has not been filled up. For example, when a Board has no President, the acts of the Board, of the Vice-President or of the members are valid. Similarly, when there is no Vice-President, the acts of the Board President or of the members are valid; also when one or more memberships are vacant the acts of the Board, the President the Vice-President and other members are all valid. The section does not lend colour to such paradoxical propositions : as the act of the President, when there is no President, is valid or the act of a Voice-President, when there is no Vice-President, is valid; or the act of a member when he is not a member, is valid. Of course, the act of a member, when there is a vacancy in some memberships, is perfectly valid.