J SELVARANGA RAJU Vs. TDORAIASWAMI MUDALIAR

JUDGEMENT

(1.) The facts of this case are fully set out in the referring judgment of Mr. Justice Pakenham Walsh. The question is whether a disqualification on nomination on the ground that at the time of nomination the petitioner was an Honorary Magistrate of the Saidapet Bench Court and tints disqualified under Section 49(2)(iv) of the Madras District Municipalities Act of 1920 forms a ground for an election petition or can only be dealt with under Section 51. My view of Section 51 is that it can only apply where there has been an election of the candidate as a councillor which is apparently valid on the face of it. In my view it cannot apply to the inchoate stage of nomination which has not resulted in at least something which purports to be an election. Moreover, so far as I can see, no person except a councillor could take action before the District Judge against the person suggested to be disqualified. I see no option but to come to the conclusion that this cumbrous machinery leaves the result that an election petition is open to those entitled to launch it in order to raise this ground of disqualification. Wallace, J. The short question for decision here is whether an elector in an election held under the Madras District Municipalities Act of 1920 can, in an election petition before (he Subordinate Judge or District Judge, urge, as a ground for setting aside the election, that the elected candidate was disqualified under Section 49 or Section 50 of the Act, or can this matter be moved only by a councillor or by the Chairman under Section 51 and before the District Judge alone.

(2.) As usual, the Act fails to indicate clearly the answer to be given. The wording of Section 51 is unhappy. It is not said who are the persons who may allege that the elected councillor is disqualified or in what form or manner the allegation is to be made, or how or when the person challenged is called on to admit or not to admit the allegation. Again, the present tense "is disqualified" in Sub-section (1) cannot be aptly used of Section 49 since it refers to the present state of the councillor who has been elected, whereas Section 49 refers to his prior state on the date of the nomination, election or appointment. The same remark applies to the use of the same term in Sub-section (2). It is also not clear what differentiation, if any, is intended between "is disqualified" in reference to an allegation by outsiders and "has become disqualified" in reference to the doubts of the councillor. Are the doubts of a councillor remediable in law only when they relate to a period after his election and not when they relate to the period of nomination or actual election? However, the general sense of the section seems to be that when any question arises whether a person elected as councillor was disqualified under Section 49 at the time of nomination or election or has since the election become disqualified under Section 50, the matter should be moved before the District judge by a Councillor or the Chairman. The question is whether that section is exhaustive so that the ordinary voter, when the election has resulted in the election of a candidate whom he regards as disqualified, cannot agitate that matter in an election petition. It would seem strange if he could not and unless the Act and rules make it abundantly clear that he cannot, I should hold that no such prohibition exists.

(3.) The general rules as to election petitions are passed under the rule-making power given under Section 303(b), and any rules therein which deal with matters not expressly prohibited by the Act will be intra vires. Obviously the Act does not expressly prohibit an elector raising in an election petition the matter of the disqualification of a candidate since the Act does not even mention an. election petition at all. So we have to see whether the rules allow such a point to be raised in an election petition. Such a petition apparently can raise any point whatever, but the election will not be set aside thereupon unless in the opinion of the Judge hearing it one of the matters set out in Rule 11 is proved. The only part of Rule 11 which can apply to the present case is Rule 11(c). I am not prepared to hold (hat the existence of a disqualification under Section 49 at the time of nomination is an "irregularity in respect of a nomination paper" within the meaning of that rule. So that the question is whether it amounts to a "non-compliance with the provisions of the Act or the rules made thereunder."