JUDGMENT

Ramesam, J.

1. This is an application by Sri Rajah Malraju Venkatanarasimha Rao Bahadur Garu of Narasaraopet for a writ of certiorari to be issued to the three respondents who are : (1) the Chairman of the Narasaraopet Municipal Council elected at a meeting op 5th November 1929, (2) the Municipal Council and (3) the Vice-Chairman of the Municipal Council who presided at the meeting of 5th November for electing the Chairman and for setting aside the alleged resolution of a mooting on that day declaring respondent 1 to have been duly elected as Chairman. The petitioner is the other candidate for election.

2. An application was made to the Government, by the petitioner for setting aside the election on the ground of various irregularities in the election; but the Government while finding that the action of the Councilors in violating the provisions of Rule 4 of the rules for the election of Chairman and Vice-Chairman of the Municipal Councils prescribing secret voting was highly irregular did not interfere with the election in question and passed an order leaving the aggrieved parties to the legal remedies. Immediately after the said order of the Government (on 10th December 1929) the present petition was filed. We issued an interim writ. The Municipal Council of Narasaraopet appear by counsel and oppose the application.

3. The first point that would suggest itself is the question whether the writ of certiorari ought to be issued when there is another remedy open. Under the election rules an election petition lies; but unless the statutes or bye-laws made under the statutes take away the remedy by certiorari the writ may be issued. Where it is laid down in the statutes or bye-laws made under the statutes that proceedings under them shall not be removed by the writ of certiorari then certiorari is said to be taken away by such statutes : that is, it is taken away by express negative words and not[ merely by words which direct that certain matters shall be finally deter-mined : vide Halsbury, Vol. 10, Section 34.5. But even in cases where certiorari is taken away a writ may be issued if the authority acted without jurisdiction : vide Halsbury, Section 318. This was the;, procedure adopted in Ex parte Brad-laugh [1878] 3 Q.B.D. 509: see also Nando Lal Bose v. Corporation for the Town of Calcutta [1885] 11 Cal. 275. It ought to be done under exceptional circumstances only.

4. The next question is whether in this matter the resolution which is sought to be set aside is an act of a judicial authority. The writ lies for the purpose of quashing the determinations of bodies who are entrusted with judicial functions out of the ordinary course of legal procedure: vide Halsbury, Section 320. Even-in respect of such bodies the writ lies only in judicial as distinguished from ministerial acts. In Frome United Breweries Co. v. Bath Justices [1926] A.C. 586, Lori Atkinson quoted the dictum of May, C. Z. in Reg v. Dublin Corporation [1878] 2 L.R. Ir. 371 as follows:

In this connexion the term "judicial" does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon a consideration of facts and circumstances, and imposing liability or affecting the rights of others. And if there is a body empowered by law to inquire into facts, make estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence) would be judicial acts.

5. In the present case, we find that the proceedings of the council dated 5th November 1929 do not contain even a resolution of the council. They recorded the facts relating to the election and the declaration of the returning officer (the Vice-Chairman) declaring the votes obtained by each candidate and who got the majority of the vote. I am unable to see in this the act of any tribunal judicial or quasi-judicial. There was no question of the validity of the voting papers. The council or even the Chairman did not purport to enquire into any [matter or weigh the evidence relating to any matter in dispute or consider it in any manner that can be considered judicial or quasi-judicial. On this ground we dismiss the application with costs of respondents 1 and 2, advocates fee being fixed at Rs. 25.

Cornish, J.

6. I am of the same opinion. The affidavits disclose irregularities in the manner of voting which might have been challenged in an election petition. But there was nothing done by the Municipal Council in the nature of a judicial act to which the remedy of a writ of certiorari would be applicable. When this case was first argued it was re-presented to us on the strength of the petitioners affidavit that the council had passed a resolution adopting the election of respondent 2, as the Chairman of the council. But respondent 2s affidavit which has since been filed denies that there was any resolution of the council upon the matter, and this appears to be the fact from an examination of the councils minute book. The council did not, therefore profess to exercise some right or duty to decide," which, as Fletcher Moulton, L. J. has explained in Hex v. Woodhouse [1806] 2 K.B. 501 at p. 535, is necessary to provide scope for the writ of certiorari. All that was done was to record in the minute book the result of the poll as declared by the presiding member. The act of the presiding member in declaring the result of the poll was a purely ministerial or administrative act: see Pritchard v. Mayor of Bangor [1883] 13 A.C. 241. And a writ of certiorari cannot be granted in respect of such an act; Rex v. Woodhouse [1806] 2 K.B. 501.

7. The learned Counsel for the petitioner has argued that the presiding officer was under a duty to decide upon the validity of the votes given in such circumstances, and that he must be deemed to have decided that notwithstanding the irregularity in the voting, the voting papers were valid. Reference has been made to the following passage in Lord Halsburys judgment in Pritchard v. Mayor of Bangor in regard to the functions of the Returning Officer at a Municipal Election.

He is to do therefore the things which the statute expressly says he shall do, namely to count the votes, that is to say, the written papers so put into the ballot boxes, and according to their number to declare which candidate is elected. One function is no doubt given to the Returning Officer, and that is a judicial function, with regard to the question of the validity of the voting pipers as papers, to see whether they comply with the statute or whether there is any objection to them.

8. Those are precisely the functions given to a presiding member by the rules framed under the Madras District Municipalities Act for the election of a Chairman. He is to count the voting papers placed in the ballot box and those papers are to be marked only by the voters placing a cross against the name of a candidate on the papers. Rule 6 provides that any voting paper which contains the signature of the voter or on which the cross is placed against more than one name shall be invalid. A voting paper which on the face of it offended against Rule 6 would not be counted by the presiding officer. But with this exception the rules give him no power to adjudicate upon the validity of a vote. In my judgment, nothing done by the presiding officer in the declaration of the result of the poll exceeded his strictly ministerial functions, and accordingly there is no ground for the grant of certiorari in respect of anything done by him.