THEVAR AVERGAL Vs. CSRIRAMA DESIKAM AIYANGAR

JUDGEMENT

(1.) C.R.P. No. 839 of 1926 has been filed against the order of the Subordinate Judge of Ramnad in O.P. No. 2 of 1926, setting aside the election held on 5 March 1925, for filling up two vacancies which were about to arise in the membership of the Sivakasi Taluq Board and directing" a fresh election to be held. The present 1 respondent is the person who filed O.P. No. 2 of 1926 in the Lower Court. The present petitioner was the 1 respondent in the said O.P. As a result of the election held on 5 March, 1925 the present petitioner and the 5th respondent were declared to have been duly elected. The sole ground on which the learned Subordinate Judge has set aside the election is the non-compliance with the provisions of Rule 5(a) of the Revised Rules for the Conduct of Elections of Members of Taluq and. Union Boards.

(2.) That rule is worded thus: On completion of the scrutiny of nominations and after expiry of the period within which candidatures may be withdrawn under Rule 6(1) (a), the President shall prepare a list of persons whose nominations have not been rejected and who have not withdrawn their candidature in Form No. III and publish it on the notice board of his office not later than ten days before the date fixed for election,

(3.) In this case, the publication of such a list appears to have been made on 22n3 February 1925 (vide Ex. IV-a), and the date fixed for election was 5 March, 1925. But in that list the name of the present petitioner was not included as his nomination was rejected by the Election President as invalid on 9 February, 1925 (Ex. C-I). Thereupon, he filed O.S. No. 119 of 1925 against the Election President in the District Munsif's Court, Srivilliputhur, and obtained a decree in Bis favour on 4 March 1925, whereby he was declared to be a duly qualified candidate for election, the rejection of his nomination was held to be improper and illegal, and an injunction was also issued to the defendant restraining him from holding the election on the appointed date without including the plaintiff's name as a duly nominated candidate in the ballot papers to he used at the said election, and directing the defendant to hold the election with the plaintiff's name as a duly nominated candidate. (See paragraph 30 of the judgment, Ex. 1). It is contended, on behalf of the petitioner, that the Lower Court should have held that the inclusion of his name as a validly nominated candidate by virtue of the said decree related back to the date on which the nominations were publish ed, viz., 22 February, 1925, and therefore it must be deemed that there was no infringement of the rule which requires an interval of ten clear days between the date of publication and the date of election. There is much force in this contention. The principle is that equity takes it as done what ought to have been done. What the Election President should have done, but failed to do, was fulfilled by the legal effect of the declaration and injunction given under the decree of the Court, and as such it should be taken that the name of the present petitioner was in the list of the nominations originally published on 22 February, 1925. Reliance was placed on a dictum in Symmers v. Regent (1776) 98 ER 1203 at 1210 which seems to be in favour of the contention pressed by Mr. Rangachariar. Certain voters were disfranchised, and later on, a mandamus to restore those voters was issued. A question arose as to the validity of the votes given by them before the order of restoration. Lord. Mansfield observes as follows on page 1210: But upon consideration, I think, that let the restoration come when it will, it relates to the original right. It would be so in the case of a probable ground of disfranchisement. Hut here, there is not 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.--Thus it stands as to their being voters de facto.