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TMI Blog1954 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents 4 and 5 subsequently withdrew from the election, leaving the contest to the other candidates. At the polling the appellant secured 65,201 votes the first respondent 65,375 votes and the other candidates far less; and the Returning Officer accordingly declared the first respondent duly elected. The appellant then filed Election Petition No. 180 of 1952 for setting aside the election on the ground inter alia that 301 out of the votes counted in favour of the first respondent were liable to be rejected under Rule 47 (1) (c) of Act No. XLIII of 1951 on the ground that the ballot papers did not have the distinguishing marks prescribed under Rule 28, and that by reason of their improper reception, the result of the election had been materially affected. Rule 28 is as follows: The ballot papers to be used for the purpose of voting at an election to which this Chapter applies shall contain a serial number and such distinguishing marks as the Election Commission may decide . Under this rule, the Election Commission had decided that the ballot papers for the Parliamentary Constituencies should bear a green bar printed near the left margin, and that those for the State Assemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directory, and that the Returning Officer had the power to accept them. The Tribunal, however, was unanimous in holding that the result of the election had not been materially affected by the erroneous reception of the votes, and on that ground dismissed the petition. The appellant then moved the High Court of Nagpur under articles 226 and 227 of the Constitution for the issue of a writ of certiorari or other order or direction for quashing the decision of the Election Tribunal on the ground that it was illegal and without jurisdiction. Apart from supporting the decision on the merits, the first respondent contended that having regard to article 329(b) the High Court was not competent to entertain the petition, as in substance it called in question the validity of an election. The petition was heard by a Bench consisting of Sinha, C. J., Mudholkar and Bhutt, JJ., who differed in their conclusions. Sinha, C. J., and Bhutt, J., held that no writ could be issued under article 226, firstly because the effect of article 329(b) was to take away that power, and secondly, because the Election Tribunal had become functus officio after the pronouncement of the decision, and that thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature . Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of article 329(b). On a plain reading of the article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others(1) it was held by this Court that the word election in article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under article 226 challenging the validity of any of the acts forming pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel lays so much stress, debars us, as it debars any other court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the Election Tribunal alone that can decide such disputes and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute. But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised . By parity of reasoning it must be held that the power of the High Court under article 226 to issue writ of certiorari against decisions of Election Tribunals remains equally unaffected by article 329(b). It is next contended that even if there is jurisdiction in the High Court under article 226 to issue certiorari against a decision of an Election Tribunal, it is incapable of exercise for the reason that under the scheme of Act No. XLIII of 1951, the Tribunal is an ad hoc body set up for determination of a particular election petition, that it becomes functus officio when it pronounces its decision, and that thereafter there is no authority in exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the merits,, or give directions to be complied with by the court or the tribunal. Its work was destructive; it simply wiped out the order passed without jurisdiction, and left the matter there. In T. C. Basappa v.T. Nagappa(1), Mukherjea, J. dealing with this question observed: In granting a writ of 'certiorari' the superior court does not exercise the power of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the deteriment of any person. Vide per Lord Cairns in Walsall's Overseers v.L. and N. W. Ry. Co.(2) . In Corpus Juris Secundum, Volume 14 at page 123 the nature of a writ of certiorari for quashing is thus stated: It is not a proceeding against the tribunal or an individual composing it; it acts on the cause or proceeding in the lower court, and removes it to the superior court for reinvestigation . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. XLIII of 1951 would be persons who would be amenable to the jurisdiction of the High Court under the article. It is argued that the wording of article 226 that the High Court shall have power to issue writs or directions to any person or authority within its territorial jurisdiction posits that there exists a person or authority to whom it could be issued, and that in consequence, they cannot be issued where no such authority exists. We are of opinion that this is not the true import-of the language of the article. The scope of article 226 is firstly that it confers on the High Courts power to issue writs and directions, and secondly, it defines the limits of that power. This latter it does by enacting that it could be exercised over any person or authority within the territories in relation to which it exercises its jurisdiction. The emphasis is on the words within the territory , and their significance is that the jurisdiction to issue writ is co extensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power could be exercised. The first respondent relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are consequential on the decision. But if the proceedings have terminated, then it is too late to issue prohibition and certiorari for quashing is the proper remedy to resort to. Broadly speaking, and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing after they have terminated in a final decision. Now, if a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that it is incapable of being granted when the court has ceased to exist, because there could be then no proceeding on which it could operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has been rendered by a court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled. In this context, the following passage from Juris Corpus Secundum, Volume 14, page 126 may be usefully quoted: Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from prohibition by the fact that it..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of certiorari and prohibition against the decision of the All India Industrial Tribunal (Bank Disputes) on the ground, amongst others, that the Tribunal had ceased to exist. In appeal to this Court against this judgment, it was contended for the appellant that on a proper construction of section 7 of the Industrial Disputes Act, the Tribunal must be deemed to be not an ad hoc body established for adjudication of particular dispute but a permanent Tribunal continuing in a sort of suspended animation and functioning intermittently . This Court agreeing with the High Court rejected this contention. But the point was not argued that certiorari could issue even if the Tribunal had become functus officio, and no decision was given on the question which is now under consideration. Looking at the substance of the matter, when once, it is held that the intention of the Constitution was to vest in the High Court a power to supervise decisions of Tribunals by the issue of appropriate writ and directions, the exercise of that power cannot be defeated by technical -considerations of form and procedure. In P. C. Basappa v. T. Nagappa(1), this Court observed: In view of the express provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to de- cide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions -are well settled and are not in dispute. (4) The further question on which there has been some controversy is whether a writ can be issued, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aman Ltd. and Others(1), it was observed by this court that under article 226 the writ should be issued 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 vested in them, or there is an error apparent on the face of the record . In T. C. Basappa v. T. Nagappa(2) the law was thus stated: An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by 'certiorari' but not a mere wrong decision . It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent on the face of the record. The first respondent, on the other hand, contended that the decision of the Tribunal that the 301 ballot papers found in his box should have been rejected under Rule 47 (1) (c) was erroneous, because that rule was only directory and not mandatory and because the Election Commission had validated them, and that its decision was final. He also contended that even if the ballot papers in question were liable to be rejected under Rule 47 (1) (c), for the purpose of deciding under section 100(2)(c) whether the result of the election had been materially affected the Tribunal had to ascertain the true intention of the voters; and the mistake of the polling officer under Rule 23 and its effect on the result of the election were matters which were within the scope of the enquiry under that section. The correctness of these contentions falls now to be determined. On the question whether Rule 47(1) (c) is mandatory, the argument of Mr. Pathak is that notwithstanding that the rule provides that the Returning Officer shall reject the ballot papers, its real meaning is that he has the power to reject them, and that on that construction, his discretion in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would render the vote void. That must also be the position with reference to a vote which is hit by Rule 47 (1) (b). Turning to Rule 47(1) (d), it provides that a ballot paper shall be rejected if it is spurious, or if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established. The word shall cannot in this sub-rule be construed as meaning may , because there can be no question of the Returning Officer being authorized to accept a spurious or unidentifiable vote. If the word shall is thus to be construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47(1) (c) also. There is another reason which clinches the matter against the first respondent. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter it is sufficient that it is substantially complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the contention of the first respondent. The approval of the Election Commission was subsequent to the actual polling, though it was before the votes were counted. Rule 23 throws on the polling officer the duty of delivering a proper ballot paper to the voter. If a distinguishing mark had been prescribed under Rule 28, the ballot paper to be delivered must bear that mark. Therefore, if any change or alteration of the original distinguishing mark is made, it must be made before the commencement of the poll, and the ballot paper should contain the new distinguishing mark. The approval by the Election Commission' subsequent, to the polling, therefore, cannot render valid the 301 ballot papers which did not bear the distinguishing mark prescribed for the election, and they are liable to be rejected under Rule 47 (1) (c). The conclusion of the majority of the Tribunal that in accepting the ballot papers in question the Returning Officer had contravened that rule must therefore be accepted. It remains to deal with the contention of the appellant that the decision of the Election Tribunal under section 100(2)(c) that the result of the election bad not been materially affected is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roken; that the printing of the distinguishing mark was faint and that Rule 28 had not also been properly complied with; that there was thus a chain of breaches all linked together, the final phase of it being the breach of Rule 47 (1) (c) and the effective cause thereof being the violation of Rule 23, and that (1) [1955] S.C.R. 509. in judging whether the result of the election had been affected, these were matters relevant to be taken into consideration. The object of the election, be contended, was to enable the majority of the voters to send a representative of their choice and for that purpose it was necessary to ascertain the intention of the voters from the ballot papers, irrespective of the question whether they were formally defective or not; that it was accordingly open to the Tribunal to look behind the barriers created by Rules 23, 28 and 47 (1) (c), discover the mind of the voters, and if that was truly reflected in the result of the election as declared under Rule 48, dismiss the petition under section 100(2) Mr. Chatterjee disputes this position, and contends that the enquiry under that section must be limited to the matters raised in the election petition, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be elected . Under this rule quite clearly no candidate can be declared elected on the strength of votes which are liable to be rejected under Rule 47. The expression the result of the election in section 100(1) (c) must, unless there is something in the context compelling a different interpretation, be construed in the same sense as in section 66, and there it clearly means the result on the basis of the valid votes. This conclusion is further fortified when the nature of the duties which a Returning Officer has to perform under Rule 47 is examined. Under that Rule, the Returning Officer has to automatically reject certain classes of votes for not being in conformity with the rules. They are set out under Rule47(1)(b) and (c). In other cases, the rejection will depend on his decision whether the conditions for their acceptance have been satisfied. Thus in Rule 47 (1) (a) he must decide whether the mark or writing is one from which the elector could be identified; under Rule 47 (1) (d), whether the ballot paper is spurious or mutilated beyond identification; and under Rule 47(2), whether more than one ballot paper has been cast by the voter. Rule 47 (4) is important. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer and bad become invalid under section 2 of the Act. It was con. tended on behalf of the unsuccessful candidate that the mistake of the polling officer rendered the whole election void, without reference to the question whether the result of the election had been affected. In repelling this contention, the Court observed at page 750: Inasmuch, therefore, as no voter was prevented from voting, it follows that the errors of the presiding officers at the polling stations No. 130 and No. 125 did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void by the common law applicable to parliamentary elections . This was merely a decision on the facts that the departure from the prescribed rules of election at the polling stations was not so fundamental as to render the election not one conducted in accordance with the principles laid down under the body of this Act Reliance was placed on certain observations in Re South Newington Election Petition(1). In that case, the ballot paper had been rejected by the Return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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