(Prayer: Appeal (disposed of on 28-10-1941) under Cl. 15 of the Letters Patent against the order of the Honourable Mr. Justice Somayya, dated 24-6-1941 and made in C.M.P. No. 3378 of 1941Petition praying the High Court to issue a writ of certiorari calling for the records and quash the proceedings of the Commissioner of the Corporation of Madras, the 1st respondent therein, declaring Sri T. Sundara Rao Naidu the 2nd respondent therein, as the duly elected Councillor for the 26th Electoral Division of the Corporation of Madras.)

This is an appeal under Cl. 15 of the Letters Patent against an order passed by Somayya J., which had the effect of setting aside the election of a councillor to the Corporation of Madras for the 26th Division of the City. We consider that the appeal is well-founded.

In 1936, the 2nd respondent was elected a councillor for this Division. In the month of November, 1940 she was convicted under the Defence of India Act, 1939, and sentenced to imprisonment for one year. The last meeting of the council which she attended was held on the 20th November, 1940. S. 53(1)(i) of the Madras City Municipal Act, 1919, states that subject to the provisions of S. 54, a councillor or alderman shall cease to hold office if he fails to attend meetings of the council for a period of three consecutive months beginning from the date of the commencement of his term of office or of the last meeting he attended as the case may be. The 2nd respondent underwent the full term of imprisonment and therefore was not able to attend any of the meetings of the Council for a year. Sub-S. (4) of S. 53 states that in the case of a person who has ceased to be a councillor or alderman in consequence of failure to attend meetings the matter shall be reported by the Commissioner to the Council which may restore the person to office. At the expiration of three months from the 20th November, 1940, the Commissioner reported to the Council that the 2nd respondent had been absent from meetings for this period and on the receipt of the report the Council passed a resolution refusing to restore her to office.

S. 55-A(2) provides that a casual vacancy in the office of a councillor shall be filled at a casual election which will be fixed by the Commissioner to take place as soon as may be after the occurrence of the vacancy except in certain circumstances which do not apply here. On the 1st May 1941 the Commissioner issued a notice to the 2nd respondent calling upon her to state within ten days whether she admitted that she had ceased to hold the office of councillor by reason of S. 53(1)(i). On the 5th May the 2nd respondent replied admitting that she had ceased to hold the office by reason of the provisions of that section. It was then the duty of the Commissioner to take steps to fill the vacancy. On the 20th May a notification was published intimating that election would take place on the 23rd June and that nominations would be received on the 23rd, 26th and 27th May. On the 23rd May, that is, three days after the notification had appeared, the 2nd respondent wrote to the Commissioner stating that by her letter of the 5th May she meant to imply that she had not attended meetings of the Corporation for three consecutive months but she did not intend to admit as the legal consequence of her non-attendance that her seat had become vacant. If, however, the letter was to be construed otherwise, she withdrew her admission, as the letter had been written under a misapprehension of the legal position. The Commissioner replied on the 26th May stating that she had admitted in unequivocal terms that she had ceased to hold office and as the result of that admission he had taken steps to hold a bye-election which would be held as arranged.

On the 29th May the 2nd respondent made an application to the Chief Judge of the Court of Small Causes under S. 5

4. That section reads as follows:

54(1) Whenever it is alleged that any person who has been elected or appointed as a councillor (or elected as an alderman) is disqualified under S. 52 or S. 53 (or S. 53-A) and such person does not admit the allegation or whenever any councillor (or alderman) is himself in doubt whether or not he has become disqualified for office, such councillor (or alderman) or any other councillor (or alderman) may, and the Commissioner, at the request of the Council, (or on a direction from the Provincial Governme nt) shall apply to the Chief Judge of the Small Cause Court.

(2) The said Chief Judge, after making such inquiry as he deems necessary, shall determine whether or not such person is disqualified under S. 52 or S. 53 (or S. 53-A) and his decision shall be final.

(3) Until an application has been made under Sub-S. (1) and a decision thereon has been obtained, such person shall be entitled to act as if he were not disqualified.

This application was determined by the Chief Judge on the 22nd September and the decision was adverse to the 2nd respondent. The Chief Judge held that she had ceased to hold the office of Councillor in February, 194

1. In the meantime the election was held and on the 10th June 1941 the appellant was declared to be duly elected. He was the only candidate nominated and this explains why he was declared duly elected before the notified date of poll, namely the 23rd June.

On the 17th June the 2nd respondent applied to this Court for a writ of certiorari with the object of obtaining an order quashing the election proceedings. This application was heard during the vacation by Somayya J. The learned Judge was of the opinion that the 2nd respondent was entitled to withdraw her admission that there was a vacancy and that by virtue of S. 54, of the Act the Commissioner had no power to proceed with the bye-election until the decision of the Chief Judge of the Small Cause Court had been obtained on the application under S. 5

4. There was no necessity for the Commissioner to make an application under that section because the 2nd respondent had admitted the vacancy. It was open to her to apply herself, but that does not mean that the Commissioner was disentitled to take action in the meantime.

Great stress has been laid by the learned Counsel for the 2nd respondent on Sub-S. (3) of S. 5

4. That section entitles a person who is apparently subject to disqualification to sit and vote at meetings of the Council until the application has been decided, but this provision has obviously been inserted to solve any question arising with regard to the validity of the proceedings should the Chief Judge of the Small Cause Court decide that the seat had been vacated. As already pointed out, the Chief Judge held that the 2nd respondent had ceased to be a member of the Council in the month of February. That being the legal position, the Commissioner was entitled, in fact it was his duty, to take the steps which he did take. The order of Somayya J. quashed all proceedings which had taken place after the 26th May for the purpose of filling the vacancy. This means that in certiorari proceedings the election was set aside. The order of Somayya J. was passed on the 24th June by which time the appellant had been declared to be duly elected and had taken the oath of office. A writ of certiorari should not have been issued in such circumstances. The proper procedure when the validity of such an election is challenged is for the aggrieved party to file an election petition. In 1936, the Government, acting under the powers conferred upon it by the Act, framed and notified rules for the adjudication by the Court of Small Causes, Madras, of disputes arising out of election of Councillors or aldermen of the Corporation. In Govindaswami Pillai v. Ramalingaswami Pillai (62 M.L.J. 644) a Bench of this Court in a matter arising out of an election to a District Council pointed out that the writ of certiorari can only be granted when there is no other suitable remedy available to the party aggrieved. There was another remedy open to the 2nd respondent and as indicated the writ should not have been issued in this case.

The appeal will be allowed and the order of the learned Judge vacated. The appellant is entitled to his costs as against the 2nd respondent.