V PANCHAPAKESA AIYAR Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF TANJORE

JUDGEMENT

(1.) This case arises out of a suit by the appellant for return of the deposit of Rs. 250 made with the Collector by the plaintiff as a condition precedent to his candidature for a seat in the Legislative Council as one of the representatives of the Tanjore District. The result of the election was that the plaintiff got 1,618 votes while the total number of votes polled was 13,373, of which 12,917 were found to be valid votes. Thus the plaintiff got less than one-eighth of the total number of votes polled but more than one-eighth of the total number of valid votes. On these figures the Collector declared the deposit of the plaintiff to be forfeited under Rule 12, sub-Rules. 3 and 4 of the Madras Electoral Rules framed under the Government of India Act, Section 72(a) (4) which empowers the making of provision by rules under the Act for certain purposes, among them being the qualification of electors, the constitution of constituencies and the method of election of the Governor's Legislative Council...and any matters incidental or ancillary thereto.

(2.) One argument in appeal is that the rules enabling the forfeiture of a deposit made by the unsuccessful candidate are ultra vires of the Local Government, seeing that this section under which these rules are framed contains no provision for the imposition of such a penalty. The argument on this head is based on the case Kirk V/s. Nowill and Butler (1786) 1 T.R. 118 : 99 E.R. 1006, which was a case relating to the powers of the Cutlers Company of Sheffield under its charter - which confers on the company the right to regulate the trade of the Cutlers and to impose fines for breach of its regulations. The company made a bye-law specifying the manner in which certain goods should be manufactured and enabling its officers to seize and confiscate goods made not in accordance with its rules. It was held that this was a forfeiture not provided for in the charter and that no such forfeiture could be imposed except by specific powers conferred in the charter. It seems to me that the facts of this case have very little bearing on the question which I have to decide. The rule framed by the Local Government does not purport to enable the Collector to forfeit the private property of an individual, except in so far as it requires a candidate to mak? a deposit as a guarantee of good faith subject to certain terms which the candidate accepts as a condition precedent to his candidature, one of these terms being that if he gets less than a certain proportion of the votes, his deposit will be credited to Government. The so-called forfeiture clause is no more than a provision for a cash deposit returnable only on the fulfilment by the candidate of an implied undertaking to secure a certain minimum support for his candidature. The candidate consents to the terms and there is nothing in the nature of the seizure of the candidate's property against his will, such as is implied by the term forfeiture strictly used; nor can it be said, in my opinion, that the rule is not a rule reasonably framed under the rule-making powers in regard to a matter incidental or ancillary to the method of election.

(3.) The next contention is that the appellant had in fact got the minimum number of votes which would entitle him to a return of the deposit under Rule 12, sub- Rules. 3 and 4 of the Madras Electoral Rules. Sub-Rule 3 says that the deposit should be forfeited to Government if a candidate is not elected and if the number of votes polled by him does not exceed one-eighth of the total number of votes polled. Sub-Rule 4 says that for the purposes of sub-Rule 3 the number of votes polled shall be deemed to be the number of ballot papers, other than spoiled ballot papers, counted. The appellant contends that the words "other than spoiled ballot papers" must be taken to mean "other than rejected ballot papers". I must confess that at first sight this interpretation appealed tome. But on going into the matter further I have come to the conclusion that the lower Courts were right in holding that the total number of ballot papers for the purposes of this rule must be taken to be the total number in the box at the time when the returning officer makes his initial count, and that the spoiled papers referred to must be taken to be those papers which have been spoiled by inadvertence and handed in to the officer in charge to be exchanged in the manner laid down in Rule 28 of the Rules for the conduct of elections. It is true that in its ordinary meaning a spoiled paper would be a paper which has been in some way or other defaced so as not to be suitable for voting purposes. But the only other place in the rules where the term "spoiled papers" is used so far as I can gather is this Rule 28 of the Rules for the conduct of elections first referred to where it appears to be used only with regard to papers spoiled and not put into the ballot box. There are, moreover, inherent difficulties in holding that the term " spoiled papers " in Rule 12, sub-Rule 4 of the Electoral Rules, can be taken to include all invalid votes. If one looks through the various classes of votes which must be treated as invalid under the rules, one finds at least one class which can never come under the term " spoiled papers", that is to say, papers which are put into the box blank. If in order to ascertain whether a candidate's deposit has to be forfeited, it is necessary to go through all the rejected ballot papers and decide which of them are and which of them are not spoiled papers, the returning officer would have to make a further scrutiny of the rejected ballot papers for which no provision is found in the rules. It seems to me clear, therefore, that the spoiled papers referred to in Rule 12(4) cannot include all invalid papers and in the absence of any reference to any special scrutiny of the invalid papers for the purpose of differentiating between spoiled and unspoiled, one is entitled to infer that the phrase is used merely to exclude those spoiled papers which have been handed in to the presiding officer and not put into the box at all. This interpretation is consistent with the obvious desirability of making the forfeiture depend upon a simple arithmetical process. The provision in the rules for a preliminary count of all ballot papers valid and invalid and the absence of any provision in the rules for counting spoiled papers as distinct from invalid papers fortify me in the conclusion that the spoiled papers which are excluded in calculating the one-eighth proportion which saves the deposit from forfeiture are the spoiled papers which have not come into the box and have not been included in the preliminary count by the returning officer. In this view 1 must agree with the lower Courts that the plaintiff did not get the necessary number of votes to entitle him to a return of his deposit.