1. These are two applications made by the same party for the issue of a writ of certiorari for quashing proceedings of the Election Commissioner of Tenkasi. C.M.P. No. 5275 relates to O.P. No. 41 of 1933 on the file of that officer and C.M.P. No. 5276 relates to O.P. No. 40 of 1933 on his file.
2. On 21st March, 1933, the President of the fenkasi Panchayat Board resigned. The Vice-President in accordance with the rules took steps for a meeting to be held to elect a new President and sent out notices on that behalf on the 23rd. But the President of the Taluk Board", being under the impression that the Vice-President had taken no steps, proceeded to take action such as can be taken in such an event under Section 42 of the Madras Local Boards Act and wrote on the 24th to the Vice-President of the Panchayat Board asking him to convene a meeting on 30th March, 1933, for the election of a President. An inadequate time was allowed to the Vice-President for replying to this letter and as no reply was received within the time allowed, the Taluk Board President, acting under Section 42, appointed a member of the Panchayat Board to convene a meeting* for the election of a President on the 30th March. The Vice-President of the Panchayat Board meanwhile went on with his arrangements for holding an election meeting on the 31st March. On the 30th March an election took place and at this the petitioner to these petitions was unanimously elected. Though the 1st Respondent here, who was Petitioner in the two original petitions, protested against the legality of the meeting, his protests were overruled and so he left it along with some others. On the following day, 31st March, 1933, there was another election, this being the one for which the Vice-President had arranged, and at this again the Petitioner to these two petitions was elected unanimously.
3. The Election Commissioner has set aside both the elections and has ordered a fresh election to be held. I shall deal first with C. M. P. No. 5275, which is concerned with O. P. No. 41 of 1933, the petition which though later in number is concerned with the earlier of the two elections. The Election Commissioner has held that the first election was void, in that the Taluk Board President had no jurisdiction to act under Section 42 and, further, had acted with material irregularity and illegality in not giving the Vice-President sufficient time to comply with his order and had acted with undue haste by not waiting for the receipt of a reply from the Vice-President before taking action under Section 42. That this finding is correct is not now disputed. What is in question is, what are the consequences that should follow therefrom ?
4. There is one point taken for the Petitioner which I cannot follow. It is contended that as the election on the 30th March was held to be void ab initio, it was not an election held under the Act and therefore the Election Commissioner could not deal with it. But an election to be void has to be declared to be so and it can only be so declared by an Election Commissioner in proper proceedings, and so the logical result of this contentions, could only be a topsy-turvy situation such as is known as Gilbertian. The argument does not require serious consideration.
5. The two principal points for consideration are whether by taking an erroneous view of the legal position arising from the facts stated in the original petition the Election Commissioner gave himself a jurisdiction which he properly had not got and secondly whether, even allowing that he had jurisdiction, he acted in the exercise of that jurisdiction with material irregularity. Now under Rule 10(c) of the Rules framed for dealing with disputes as to the validity of elections, in order that the Election Commissioner could interfere with the result of the election that has been held in non-compliance with the Act or the rules framed thereunder, he had to be of the opinion that the result of the election has been materially affected by such non-compliance. The Election Commissioner seems to have been a little uncertain as to what he should hold upon this matter. At the conclusion of paragraph 18 of his judgment, which is the penultimate paragraph, he says:
I think the election of the respondent would have to be set aside as having been made by a body of irresponsible persons.
6. This he evidently says with reference to the decision of Srinivasa Aiyangar, J, in Dwarkacharyulu v. K. Srikrishnan A.I.R. 1925 Mad. 1152. That decision was clearly based on the fact that the members of the Union Board had not taken the oath of allegiance and the irresponsibility was plainly due to no oath having been taken and not to any illegality in the way in which the meeting has been called. That ruling therefore has no bearing upon, the present case. He also refers to In the matter of G. A. Natesan and K.B. Ramanathan (1916) I.L.R. 40 Mad. 125 : 31 M.L.J. 634, in which it is stated at p. 149, that:
If a particular act must by statute be done at a particular kind of meeting, convened in a particular way, no meeting can do that act which is not a meeting of that particular kind or has not been convened in that, particular way.
7. This case hardly applies here, as the meeting held on March. 30th would have been in order had the circumstances justified action under Section 42. The case, further, has nothing to do with certiorari and does not override the provisions of Rule 10(c). Earlier in paragraph 18 the Election Commissioner has taken the view that the result of the election was materially affected, but he has come to the conclusion apparently with some difficulty. At one stage he says:
No doubt it is quite right to say that the 1st petitioner's chances had not been materially affected since he had never cared to compete as a candidate and the question will arise only when he had competed but had failed on account of the illegal proceedings arising from the non-compliance of the provisions of the Act.
8. He, however, goes on to say:
But in this case when the non-compliance of (sic) the provisions of the Act goes to the root of the matter and affects the holding of the election itself, 1 do not think I can blame the 1st petitioner for not competing in the election which was sure to be declared to be void. I think he had wisely refrained from standing for the election and had been induced to do so by the very patent irregularity of the proceedings of 30th March, 1933. Hence I find that the election itself has been affected and it must naturally be held that the result of the election has also been materially affected.
9. The view thus expressed has now to be considered with reference to what is set out in the petition O. P. No. 41 of 1933. It has been held in Shanmuga Mudaliar v. Subbaraya Mudaliar (1932) 63 M.L.J. 932 that a writ of certiorari may be issued when a Court, or similar authority, gives to itself a jurisdiction which it properly has not got, by taking an erroneous view of the law. It has also been held in Mahomed Asan Maracair v. Bijli Sahib Bahadur (1933) 66 M.L.J. 367 that the Court is only entitled to interfere if there was want of jurisdiction at the commencement of the proceedings:
Once there is jurisdiction, any errors committed subsequently cannot take away the jurisdiction once obtained. The question which now arises therefore is, did the election petition disclose an election offence which the Election Commissioner could take cognizance of?
10. I was a party to both these decisions and I would qualify what is quoted in the latter of them by saying that if in an enquiry for which there is jurisdiction an error is made which can be regarded as something which went beyond the jurisdiction of the Court or was done without jurisdiction and is not merely a wrong view of the law, then it appears that a writ can be granted. To this particular point I shall come a little later.
11. I shall first refer to what is set out in the petition O. P. No. 41 of 1933. It is stated there in paragraph 7 that the 1st petitioner, i.e., " the present 1st respondent, wanted to contest for the President's post" and again it is recited in paragraph 12 that "the 1st petitioner wanted to contest the election to the vacant office on 30th March, 1933, and, knowing that the election even if held on that day would be declared invalid, refrained from standing as a candidate that day".
12. I cannot see how what is thus set out shows that the 1st respondent was really prevented by the fact that the meeting was irregularly called from standing as a candidate. The assertion that he knew that the election would be declared invalid is not to my mind sound since, as has been held in the decision on the other petition, the result of the election on that day would have prevailed as in fact it ¦ did prevail, unless and until it was set aside by the Election Commissioner. And so, if the 1st respondent had chosen to stand for the election it is not suggested that any one else wanted to stand except himself and the present petitioner, then, however irregular may have been the way in which the meeting had been called, it could not be said that the result of the election had been materially affected because of the irregularity. There is no contention that there was anything wrong with the meeting apart from the fact of its having been irregularly called. When such is the case I do not think that the petition disclosed any ground on the strength of which, if it was made good, the election could be set aside. There is indeed no specific allegation that the result of the election was materially affected,--but I take it that it might reasonably be held that there has been such an effect if an intending candidate has been prevented from standing, even though it would be impossible to say how the voting might have gone. The 1st respondent, however, does not allege that he was prevented from standing by anything but his own discretion. I must therefore take, it that the Election Commissioner when he entertained the petition has given to himself a jurisdiction which he properly had not got by taking an erroneous view of the legal effect of what was set out therein.
13. Next as to what happened in the course of the enquiry: The allegation that the 1st respondent wished to stand as a candidate was disputed by the present petitioner in his counter-statement and therefore had to be proved, but there is no proof of it whatever. In fact, the 1st respondent did not give any evidence. Ex. C is a copy of the proceedings of the meeting held on 30th March, 1933, from which it appears that the 1st petitioner in the Lower Court raised a point of order as to the legality of the meeting and moved that it should be dissolved, that his objection was overruled and the present petitioner was elected President as the only candidate nominated, the 1st petitioner and others having left the meeting in protest. The resolution however does not show that the 1st respondent had any intention of standing as a candidate. It is clear to me on the authorities that this decision on a matter of fact in proof of which there was no evidence was beyond the scope of the Election Commissioner's jurisdiction. The learned Advocate for the 1st respondent refers me to the Privy Council case in Rex v. Nat Bell Liquors, Ltd. (1922) 2 A.C. 128, but the case is no authority for the position that there can be a valid finding of fact in the absence of any recorded evidence of any kind in support of it. All that it decides is that when there is a finding given upon evidence, even if that evidence is insufficient, a writ of certiorari will not be granted. There was some evidence in that case and, as shown in one passage of the judgment (page 165), when there is evidence, it is not competent to the Superior Court ... to consider whether or not some evidence was forthcoming before the Magistrate of every fact which had to be sworn to in order to render a conviction a right exercise of his jurisdiction.
14. That is the point which the judgment brings out as to the matter of evidence. As has been stated in Rex v. Smith (1800) 8 T.R. 588, which is quoted in this Privy Council decision, and is referred to in Halsbury's Laws of England (Hailsham's edition), Vol. 9, p. 889 as correctly stating the law on this subject, If indeed there had been any evidence whatever (however slight) to establish this point, and the Magistrate who convicted the defendant had drawn his conclusion from that evidence, we would not have examined the propriety of his conclusion; for the Magistrate is the sole judge of the weight of the evidence . . . There was some evidence from which he might draw the conclusion;
and again at p. 146 of the Privy Council judgment it is stated but the general view has been that, if there is some evidence, there is jurisdiction to hear and determine and thereafter the Superior Court will not interfere.
15. In this case, as I have said, there is no evidence whatever as to any intention on the part of the 1st respondent to stand as a candidate. As already stated, I do not see how the fact that the meeting was irregularly held could prevent him from standing as such. In these circumstances I must hold that the Election Commissioner in coming to the conclusion, that the result of the election was affected by the refraining of the 1st respondent from standing as a candidate, is one at which he had no jurisdiction to arrive, in that he has come to it without reference to any evidence of any kind. I cannot see how he can draw the inference, as it is suggested that he might, that the 1st respondent intended to stand as a candidate from the fact that he was present at the meeting or a part of it but did not stand and afterwards put in a petition stating that he had intended to stand. Nor can I agree that the election was sure to be declared void. Had 1st respondent chosen to stand, as the only other person who wished to do so, then in the absence of any other irregularity, Rule 10(c) could have had no application and the election would have been held good.
16. In the result then I find that this is a case in which a writ should be issued quashing the proceedings of the Election Commissioner. The Petition C.M.P. No. 5275 of 1933 is therefore allowed and the election of March 30, 1933, will stand confirmed. The petitioner is allowed his costs on this petition.
17. C.M.P. No. 5276 of 1933 as to O. P. No. 40 of 1933 may be quickly disposed of. I agree with the Election Commissioner that the election of 31st March cannot stand. By Section 17 of the Local Boards Act there can be an election only when there is a vacancy and in this case there was no vacancy. The President who had been elected on the previous day, at a meeting however irregularly called, was actually functioning and he could only be removed as the result of proper proceedings taken before the Election Commissioner. It is only after the election is declared void in accordance with Rule 12 of the Election Dispute Rules, that a seat or a post is regarded as vacant. The matter of there being no vacancy, in consequence of which there could no election, is a fundamental one and it is not necessary to consider any other point with reference to this petition which is therefore dismissed except in so far as it objects to the order for a fresh election. That part of the Election Commissioner's order which directs that there should be a fresh election is set aside. No costs on this petition either in this Court or in that of the Commissioner. Fee in C.M.P. No. 5276, Rs. 150.