- (1.) I concur in the conclusion of my learned brother that this appeal should be dismissed. In my opinion it is quite sufficient to hold that even if the defendant was disqualified, the plaintiff was not duly elected as the Chairman of the Municipal Board. For deciding this question we are confined to the provisions of the United Provinces Municipalities Act (Act 2 of 1916). It is not really necessary to rely on English authorities on the Common law rules-applicable to Parliamentary Elections. They can serve only as a guide. It is however quite clear that up to 1856 there was no special legislation and Elections were held under special charters granted to Corporations. Cases before 1882 proceeded on certain general principles and the terms of the charters and not on any statutory enactment. It was for the first time in England that in Clause 10 of Schedule 2, attached to the Municipal Corporations Act, 1882, it was provided that matters should be decided "by the majority of such members of the Council as are present and vote at a meeting". Such a provision removed all possibility of a deadlock being created when many members who were present did not vote at all. The modes of Election of Alderman and Mayor were laid down in Sections 60 and 61 of the Act.
(2.) Section 92 of the Municipalities Act of these provinces provides that all questions shall be decided "by a majority of the votes of the members present and voting". It is noteworthy that this section applies to all questions that may come up before a meeting of the Board and not only to the election of the Chairman, Vice-Chairman etc. The learned Counsel for the plaintiff has urged before us that the word "validity" is understood after the word "voting". His contention is that the votes of only those members who are voting validly can be counted and that the votes of those who are not voting validly should be altogether excluded and such members should be considered as not to have voted at all. This is in substance applying the rule of common law governing Parliamentary Elections. In a bit; election it is very inconvenient that votes in the form of" yes" or no" should be taken with regard to each candidate. Accordingly, it has been held that the only way of voting against a candidate is by voting in favour of another candidate. But this, of course, cannot apply to all questions which come up for decision before a small Municipal Board. Those seems to be no justification for extending the English Common Law rule to votes of Municipal members. So long as the member himself is duly qualified to vote and records a vote, he is a member "who is present and. voting". The fact that the person for whom he voted turns out to ho a disqualified parson would render his vote useless, but it would not be accurate to say that the voting itself was futile valid. The vote was good, but it was futile inasmuch as it has been wasted or thrown away. It seems to me that the section requires that more than half the members who are present and are recording their votes on the question put should be in favour of it; otherwise it would not be duly carried As the word "majority" of the votes is used and not the greater number of votes, the legislature obviously intended that there should be only one question put at a time and not that votes should be asked for on two separate questions put simultaneously.
(3.) It appears tome that the procedure adopted by the Vice-Chairman on this occasion was not quite correct. By asking the members to vote once either in favour of one or the other candidate he left no option to the members to record a negative vote against both. Members who did not like either of the candidates were left no option but to remain neutral, whereas if votes had been asked for or against one candidate at a time, it would have been definitely ascertained whether the majority were in his favour or were against him. In order to ascertain that a majority of the members present and voting were in favour of a particular candidate is is necessary to eliminate the order, and this is possible only if the two questions are put separately. To give an illustration, out of be members 25 may be against both the two candidates while three are in favour of one and two in favour of the other. If they are asked to vote only for one or the other, they cannot record a negative vote and must remain neutral. The result would be that the candidate who secures three votes, although 25 members are in reality against him, would be declared to be duly elected. In my opinion, this is not the procedure contemplated by Section 92 at all.;