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The first is, on what grounds could the High Court, in exercise of its powers under article 226 of the Constitution, grant a writ of certiorari to quash the adjudication of the Election Tribunal ? Ratio |
The second is, whether such grounds did actually exist in the present case and are the High Court 's findings on that point proper findings which should not be disturbed in appeal ? Ratio |
The principles upon which the superior Courts in England interfere by issuing writs of certiorari are fairly well known and they have generally formed the basis of decisions in our Indian Courts. Ratio |
It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or, as it is now said, an order of certiorari, could issue, but such differences of opinion are unavoidable in judge made law which has developed through a long course of years. Ratio |
As is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in England in the King 's prerogative power of superintendence over the due observance of law by his officials and Tribunals. Ratio |
The writ of certiorari is so named because in its original form it required that the King should be " certified of " the proceedings to be investigated and the object was to secure by the authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised (1). Ratio |
These principles were transplanted to other parts of the King 's dominions. Ratio |
In India, during the British days ' the three chartered High Courts of Calcutta, Bombay and Madras were alone competent to issue (1) Vide Ryots of Garbandho v, Zemindar of Parlkime 70 I,A. 129 at page 140 256 writs and that too within specified limits and the power was not exercisable by the other High Courts at all. R... |
" In that situation " as this Court observed in Election Commission, India vs Saka Venkata Subba Rao (1), " the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick... |
" The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be 'consid... |
In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. Ratio |
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. Ratio |
One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the writ can be (I at 1150, 257 of judicial acts. Ratio |
The expression " judicial acts " includes the exercise of quasi judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Ratio |
Atkin L. J. thus summed up the law on this point in Rex vs Electricity Commissioners (1) : " Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling Jurisd... |
The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi judicial Tribunals or bodies is not in an appellate but supervisory capacity. Ratio |
In granting a writ of certiorari the superior Court does not exercise the powers of an appellate Tribunal. Ratio |
It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. Ratio |
It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal. Ratio |
The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person(2). Ratio |
The supervision of the superior Court exercised through writs of certiorari goes on two points, as has been expressed by Lord Sumner in King vs Nat.Bell Liquors Limited (3). Ratio |
One is the area of inferior jurisdiction and the qualifications and conditions of its exercise ; the other is the observance of law in the course of its exercise. Ratio |
These two heads normally cover all the grounds on which a writ of certiorari could be demanded. Ratio |
In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case. Ratio |
(I) (1924] I K.B. 17I at 205. Ratio |
(2) Vide Per Lord Cairns in Walshall 's Overseers vs London and North Western Railway Co., 4 A.C. 30, 39. Ratio |
(3) [1922) 2 A.C. 128, 156, 33 258 Ratio |
Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. Ratio |
The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances(1). Ratio |
When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess (2). Ratio |
A Tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. Ratio |
A writ of certiorari may be available in such cases. Ratio |
An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be amanifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. Ratio |
In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. Ratio |
The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris L. J. in the recent case of Rex vs Northumberland Compensation Appellate Tribunal(3). PRE |
The Lord Justice says: It is plain that certiorari will not issue as the cloak of an appeal in disguise. PRE |
It does not lie in order to bring up an order or decision for re hearing of the issue raised in the proceedings. PRE |
It exists to correct error of law when revealed on the, face of an order or decision or irregularity or absence of or excess of jurisdiction when shown." PRE |
In dealing with the powers of the High Court under article 226 of the Constitution this Court has expressed itself in almost similar terms(1) and said (I) Vide Halsbury, 2nd edition, Vol.IX, page 88o (2) Vide Banbury vs Fuller, 9 Exch.III ; R. vs Income Tax Special Purposes Commissioners, (3) [19521 1 K.B. 338 at 357.(... |
"Such writs as are referred to in article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction... |
However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made." PRE |
These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution. Ratio |
We will now proceed to examine the judgment of the High Court and see whether the learned Judges were right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case. Ratio |
The grounds upon which the High Court has granted the writ have been placed in the judgment itself under three heads. Ratio |
The first head point; out in what matters the Election Tribunal acted without jurisdiction. Ratio |
It is said, in this connection, that the Tribunal had no jurisdiction to extend the period of limitation for the presentation of the election petition and it had no authority also to allow the petitioner 's prayer for amendment and to hear and dispose of the case on the basis of the amended petition. Ratio |
The second head relaters to acts in excess of jurisdiction. Ratio |
The Tribunal, it is said ' acted in excess of jurisdiction in so far as it went into and decided questions not definitely pleaded and put in issue, and not only did it set aside the election of respondent No. 1 but declared the petitioner to have been duly elected, although there was no definite finding and no proper m... |
The third head purports to deal with errors apparent on the face of the record. Ratio |
These apparent errors, according to the High Court,, vitiated three of the material findings upon which the Tribunal based its decision. Ratio |
These findings relate to the commencement of polling at one of the polling booths much later than the scheduled time, the respondent No. 1 's obtaining the services of a Government servant to further his prospects of election and also to his lodging a false return of expenses. Ratio |
We will take up these points for consideration one after another. Ratio |
As regards absence of jurisdiction the High Court is of opinion that the Tribunal acted without jurisdiction, first in extending the period of limitation in presentation of the election petition and secondly in allowing the petitioner 's prayer for amendment and dealing with the case on the basis of the amended petitio... |
The view taken by the High Court seems to be that under the Representation of the People Act (hereinafter called "the Act"), no power is given to the Election Tribunal to condone the delay, if an election petition is presented after the period prescribed by the rules, nor is it competent to allow an amendment of the pe... |
Assuming, though not admitting, that the propositions of law enunciated by the learned Judges are correct, we do not think that they at all arise for consideration on the actual facts of the present case. Ratio |
As regards the first matter, the election petition, as stated above, was despatched bythe petitioner by registered post to the Election Commission on the II th of April, 1952, and it reached the Commission on the 14th of April following. Ratio |
We may take it therefore that 14th of April was the date when the election petition 261 could be deemed to have been presented to the Election Commission under section 81(2)(b) of the Act. Ratio |
Under rule 119 of the Election Rules framed under the Act, an election petition against a returned candidate is to be presented at any time after the publication of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under... |
It is not disputed that this notice of the return of election expenses was published in the Mysore Gazette on the 31st of March, 1952, and the petition therefore was just in time as it was presented within and not later than 14 days from that date. Ratio |
The High Court seems to think that in computing the period of 14 days the date of publication is to be included. Ratio |
This seems to us to be an unwarrantable view to take which is opposed to the ordinary canons of construction. Ratio |
Dr. Tek Chand appearing for the respondent No. 1 plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's entertaining the election petition after the prescribed period in the present case. Ratio |
Coming now to the question of amendment, the High Court, after an elaborate discussion of the various provisions of the Act, came to the conclusion that the Election Tribunal which is a special Court endowed with special jurisdiction has no general power of allowing amendment of the pleadings, and that the express prov... |
Here again the discussion embarked upon by the High Court seems to us to be unnecessary and uncalled for. Ratio |
The only amendment applied for by the petitioner was a modification in the prayer clause by insertion of an alternative prayer to the original prayer in the petition. Ratio |
No change whatsoever was sought to 262 be introduced in the actual averments in the petition and the original prayer which was kept intact was repeated in the application for amendment. Ratio |
The alternative prayer introduced by the amendment was not eventually allowed by the Tribunal which granted the prayer of the petitioner as it originally stood. Ratio |
In these circumstances the mere fact that the Tribunal granted the petitioner 's application for amendment becomes altogether immaterial and has absolutely no bearing on the actual decision in the case. Ratio |
We are unable to hold therefore that the Tribunal acted without jurisdiction in respect to either of these two matters. Ratio |
The High Court has held that the Tribunal acted in excess of its jurisdiction in entering into certain questions which are not covered by the pleadings of the parties and not specifically put in issue. Ratio |
The other act in excess of its authority committed by the Tribunal, according to the High Court, is that it declared the petitioner to be a duly elected candidate, on a mere speculation although it did not find and had no materials to find that the petitioner could secure more votes than the respondent No. 1. Ratio |
On the first point the learned Judges have referred only to the allegation of corrupt practice made by the appellant, regarding the hiring and procuring by the respondent No. 1 of a motor bus belonging to Ahmed Jan for transporting his voters to the polling booths. Ratio |
The issue framed on this point is issue No. 5 which is worded as follows: "Did the first respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph 1 of the list of particulars and thereby commit the corrupt practice referred... |
The Tribunal further found that even if Ahmed Jan was not an agent of the first respondent, as he was actually carrying the voters of the latter 263 from Gowrapur to Sollapur in a bus, which bore the first respondent 's election symbol, with his knowledge and connivance, the first respondent must be held guilty of the ... |
The High Court says that as it was nowhere alleged in the petition that Ahmed Jan was an agent of respondent No. I or that he was carrving the voters with his connivance, the Tribunal must be held to have acted 'in excess of its jurisdiction in going into matters which were not definitely pleaded. Ratio |
We do not think that this view of the High Court can be supported. Ratio |
In paragraph 8 of the petition the appellant definitely stated that the first respondent by himself and through his agent committed major corrupt practices, one of which was the hiring or procuring of Ahmed Jan 's motor bus. Ratio |
The Tribunal found, on a consideration of the evidence adduced in the case, that the motor bus was procured by the first respondent and his conduct in this respect, as disclosed by the evidence, showed that his voters were being carried by Ahmed Jan with his knowledge and connivance. Ratio |
It may be pointed out that in paragraph 9 of the petition the petitioner clearly stated that the corrupt practices were committed by respondent No. 1, or his agents, or by several persons with his knowledge and connivance. Ratio |
The finding of the Tribunal arrived at on this point is a finding of fact based on evidence adduced by the parties and it is not in any way outside the pleadings or inconsistent therewith. Ratio |
The other ground put forward by the High Court that the Tribunal exceeded its jurisdiction in declaring the appellant to be the duly elected candidate, although it had no materials to come to the conclusion that he could have secured more votes than respondent No. 1 but for the corrupt practices committed by the latter... |
It appears that the learned Judges did not properly advert to the findings arrived at on this point by the Election Tribunal. Ratio |
The petitioner, it may be noted, got only 34 votes less than the respondent No. 1. Ratio |
The Tribunal has found that the bus of Ahmed Jan, which was procured by respondent No. 1, did carry to the polling booths about 60 voters in two trips and in the, circumstances of the case it could 264 be legitimately presumed that the majority of them did vote for respondent No. 1. Ratio |
If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latter 's majority by 34 votes would be completely wiped out and the petitioner would gain an undisputed majority. Ratio |
In paragraph 33 of its judgment the Tribunalstates as follows: "Hence on the 14th issue we hold that the petitioner would have obtained a majority of votes had it not been for the aforesaid corrupt practices on the part of the first respondent." Thus the finding is there and there is evidence in support of it. Ratio |
Whether it is right or wrong is another matter and it may be that the view taken by the dissenting member of the Tribunal was the more proper; but it cannot be said that the Tribunal exceeded its jurisdiction in dealing with this matter. Ratio |
We now come to what the High Court has described as errors apparent on the face of the record. Ratio |
These errors, according to the High Court, appear in respect of three of the findings arrived at by the Tribunal. Ratio |
The first of these findings relates to the time when the polling at Booth No. I at Ajjampur commenced on the date of election. Ratio |
The Tribunal has held that the time fixed by notification was 8 A.M. in the morning but the polling did not commence till 25 minutes after that and the result was that a number of voters went away. Ratio |
It is said that some of these voters would in all probability have voted for the appellant and as there was a difference of only 34 votes between him and the respondent No. 1 the results of the election have been materially affected by this irregularity or violation of the election rules. Ratio |
There was evidence undoubtedly to show that some of the voters went away as the polling did not commence at the scheduled time; but the exact number of these persons is not known and there could not be any positive evidence to show as to how many of them would have voted for the appellant. Ratio |
If the Tribunal had on the basis of these facts alone declared the appellant to be the duly elected candidate holding 265 that he could have secured more votes than respondent No. 1, obviously this would have been an error apparent on the face of the record, as such conclusion would rest merely on a surmise and nothing... |
The Tribunal however discussed this matter only in connection with the question as to whether the violation of any statutory rule or order in the holding of election did materially affect the result of the election which would entitle the Tribunal to declare the election of the returned candidate to be void under secti... |
This, the Tribunal *as competent to do under the provisions of the Act and in doing so it could take into consideration the circumstances And probabilities of the case. Ratio |
But as we have stated already, the Tribunal declared the appellant to be duly elected upon the specific finding that, but for the corrupt ' practice of respondent No. I in the matter of procuring the service bus of Ahmed Jan, the appellant would have got majority of the votes. Ratio |
We cannot say that this is an error apparent on the face of the record which would entitle the High Court to interfere by writ of certiorari. Ratio |
As regards the other two findings, one relates to the receiving of assistance from Paramessh warappa, who is a Patel, by respondent No. 1, in furtherance of his prospects of election. FAC |
The High Court does not dispute the facts alleged by the appellant that Paramesshwarappa accompanied the first respondent and actually canvassed at several places and that he openly canvassed at one polling booth on the polling day. Ratio |
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