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Showing contexts for: Assembly election in B.S. Moorthy vs Eli Vadapalli And Ors. on 17 February, 1937Matching Fragments
10. In pursuance of that order the Returning Officer passed the following order dated 31st December 1936:
In modification of the Notification published in this office on 11th December 1936, I do hereby declare that (1) M.R. Ry. Eli Vadapalli Garu and (2) M.R. Ry. B.S. Murthy Garu have been duly elected to the panel for contesting the scheduled classes reserved seat in the Rural General Constituency, Cocanada.
11. The petitioner argues that these orders are bad for lack of jurisdiction and that he having been duly elected to the Legislative Assembly, his election can only be declared void by the Governor in Council or a tribunal set up by him. The argument before us by the Government Pleader amounts virtually to this: Although it is conceded that elections to the Legislative Assembly can only be declared void by an order of the Governor in Council or a tribunal and although the District Magistrate is only given jurisdiction to decide questions relating to elections to the panel, yet, in the case of a member of the scheduled caste elected to the Assembly under the proviso to Rule 29, it must be inferred that the Legislature intended that in that case and in that case only even the election to the Legislative Assembly could be set aside by the order of the District Magistrate. In other words, that under Rule 103(a) an election petition against any candidate elected at a primary election should be understood to mean either to the panel or under the Proviso to Rule 29 to the Legislative Assembly. I should have thought that, if it was intended to take away such a valuable right of election to the Assembly by means of summary procedure prescribed in Rule 103, it would have been expressed in the clearest possible terms and I am most reluctant to draw any inference in favour of such a conclusion unless such inferences are inevitable from the wording of the rules.
12. That the position now before us has escaped the notice of the draftsman of these rules is evident but the rules have got to be construed as they stand. The language of Rules 12 to 32 makes it quite clear that one position and one position alone is contemplated--the nomination and election of candidates to the panel in order to enable them to stand for final election to the Assembly. Those rules are headed "Primary Elections" and they deal with candidates for election to the panel and not to the Assembly. That is a later stage. Rule 29 adumbrates the words "elected to the panel." Rule 103 is at the outset qualified by the words that it relates to primary elections held "for the purpose of electing candidates for a seat" and the orders contemplated by Rule 103(c) clearly relate to orders passed in relation to such candidate. But at the time of the hearing before the District Magistrate the seat had been filled by the election of the petitioner. The order above mentioned dated 31st December of the Returning Officer merely declares that respondent 1 and the petitioner had been duly elected to the panel but the order of the District Magistrate admittedly declares the election of the petitioner to the Assembly void. The short question therefore is, has the District Magistrate power to declare the election to the Assembly void, and I am unhesitatingly of the opinion that he has not. I am not even satisfied that the Legislature intended that he should have such powers. There is nothing remarkable to my mind that when once a person has attained the status of a member of the Legislative Assembly, he should only be deprived of it by means of a formal election petition and I see no reason to suppose that that procedure which is so carefully elaborated in the rules should not have application to a member of the scheduled caste elected in this manner as much as to any one else. At any rate in the absence of any clear provision to the contrary I am far from disposed, to infer the opposite.
15. It is quite obvious from a perusal of the rules that the machinery set up for the purpose of the elections is intended to be final. No appeal lies from the decisions of the District Magistrate with regard to the scheduled caste panels or the tribunals appointed by His Excellency to hear election petitions. The decision of all these matters is left to him. Neither of those tribunals is a Court subject to the machinery of the Code of Civil Procedure and neither can be said to represent a Court for the purpose of invoking the provisions of Section 115 of the Code. This position is fully dealt with by a Full Bench of this Court in Lakshmanan Chettiar v. Kannappar, AIR 1927 Mad 93. It would appear then that Rule 7 very largely states what is the accepted law. The Government Pleader's argument therefore amounts to this that a combination of para. 20, Schedule 5 and Rule 7, Madras Legislative Council Rules, takes away also the powers of the High Court with regard to the issue of writs of certiorari, and to extend that argument to its logical conclusion it must follow that an elected member of the Madras Legislative Assembly whose election has been declared void by a tribunal having no jurisdiction to do so has no remedy in the High Court. Incidentally I might add it does not appear he has any remedy at all if this argument is correct. Under Section 223, Government of India Act, 1935, the powers of the High Court are the same as before the passing of this Act. But Section 223 is subject to the provisions of any Act of the appropriate Legislature-enacted by virtue of powers conferred on that Legislature by this Act. The point for decision therefore would seem to be have the powers of this High Court with regard to writs of certiorari been removed? It is I think axiomatic that certiorari can only be taken away by express negative words: vide Halsbury's Vol. 9, p. 861, para. 1455. So long ago as 1760 it was held in Rex v. Moreley (1760) 2 Burr 1040 at p. 1042 that:
Lakshmana Rao, J.
22. I agree and would emphasize that Rule 103 of "the Madras Legislative Assembly Electoral (Elections and Election Petitions) Rules 1936" provides for decision of doubts and disputes as to the validity of primary elections for electing candidates for a reserved seat and not the election of a candidate to a reserved seat as defined in Rule 3, Part 1 of "the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order 1936.," which cannot be questioned except by an election petition presented in accordance with the provisions of Part 3 of that Order. There was in this case an election of a candidate to the reserved seat by virtue of the declaration under the Proviso to Rule 19 of "the Madras Legislative Assembly Electoral (Elections and Election Petitions) Rules" and the petition to the District Magistrate was to declare void and set aside the election of the petitioner to the reserved seat. The petition was not to set aside the election of the petitioner as a candidate for the reserved seat nor is it suggested that there are any grounds therefor. That being so, the District Magistrate had no jurisdiction to entertain the petition, and Rule 7 of the Madras Legislative Assembly Electoral (Elections and Election Petitions) Rules does not validate or legalise such proceedings. The order of the District Magistrate and the consequential order of the Returning Officer are therefore unsustainable, and certiorari can only be taken away by express negative words. Rule 7 does not, as pointed out by my learned brother, take it away expressly or impliedly and it is unnecessary to decide whether certiorari can be taken away by rules framed under Para. 20, Boh. 5, Government of India Act, 1935 and, even if it can be and is so taken away, certiorari may not be granted where the tribunal has acted without or in excess of jurisdiction.