SEENI MADAR SAHIB Vs. ABDUR RAHMAN SAHIB

JUDGEMENT

(1.) The petitioner in this case was a candidate at the election held on the 28 June, 1938, of members to the Tiruvallur Panchayat Board. For the sixth ward of the Board two candidates were to be elected. One of the seats was reserved for the Muhammadan community; the other was a general seat. There were two candidates for each seat and the petitioner was one of the candidates for the reserved seat. He was unsuccessful and he filed a petition in which he asked that both elections should be set aside. The successful candidates are the respondents to this petition. Before the Election Commissioner a preliminary objection was taken to the validity of the petition. It was said that in as much as the petitioner was asking that the election in respect of the reserved seat and the election in respect of the general seat be set aside he should have filed two petitions. The Election Commissioner accepted this contention and gave the petitioner the option of treating the petition as an election petition in respect of one of the two seats. The petitioner then filed an application to this Court for a writ of certiorari with a view to the order of the Election Commissioner being quashed. A writ nisi was issued, and the Court is now called upon to decide whether the rule shall be made absolute.

(2.) In holding that it was necessary for the petitioner to file a petition in respect of each election the Election Commissioner had regard to the fact that the Election Rules framed under the Madras Local Boards Act, 1920, are drafted in the singular and that a deposit of Rs. 25 has to be made in respect of the costs of the respondent. It is true that there is no express provision enabling an unsuccessful candidate or a voter to challenge the election of two candidates in one petition, but it does not necessarily follow from this that the Election Commissioner was justified in refusing to treat the petition which was filed as a petition in each case. The petition averred that there had been impersonation and that the persons impersonated were the same in both the cases. Each voter was given two ballot papers. There were four ballot boxes and a voter had the right to put the ballot papers in whichever box he selected, but he was not allowed to put two ballot papers in one box. It is obvious that in this case it would have been convenient to have tried the two matters together. Under the English rules this petition would have been accepted but it would have been treated as a petition in each case. See Secs.22 and 23 of the Parliamentary Elections Act, 1868, and Section 91 (3) of the Municipal Corporations Act, 1888. We consider that there was no justification for the action which the Election Commissioner took. He could have treated the petition as a petition in each case and could have required the petitioner to make further provision with regard to costs. His decision meant that the petitioner was called upon to choose whether he would drop his charges against one of the two successful candidates, and for this there is no warrant in the rules.

(3.) We consider that the rule should be made absolute and the order of the Election Commissioner quashed. The record will be returned to the Election Commissioner to proceed with the hearing of the petition according to law. The petitioner is entitled to his costs.