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TMI Blog1954 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The Executive Council consisted at all material times of twenty members, of whom six were members of the Court elected by the Court at its annual meeting. At the annual meeting of the Court held in November, 1952, the petitioner was elected to the Executive Council. The only limitation which is placed by the Statutes on the power of the Court to elect six of its members to the Executive Council is that two of the persons so elected must be members who were themselves elected to the Court by the registered graduates. Of the six persons who were so elected in 1952 I am informed that four were members of the Court elected by the registered graduates; Dr. Ishwari Prasad was not one of these. 3. Under head Cxviii) of Section 17 of the Act read with Clause (ii) of the first Statute relating to the Court, the Chancellor of the University is empowered to appoint not more than fifteen persons to be members of the Court, and by a letter dated the 8-3-1954, the Chancellor in exercise of the power so vested in him appointed the petitioner to be a member of the University Court in place of Sri K. L. Misra: with effect from the date of the former's retirement from the post of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so nominated a member of the Court by the Government of Nepal. 6. It is common ground that the order of the Chancellor is what is commonly known as a speaking order , that is to say, it is an order Which states the grounds upon which the decision embodied in the order is founded; and the two principal questions which arise in this petition are, first, whether this Court has authority under Article 226 of the Constitution to quash by a writ, of 'certiorari' an order made by a tribunal subject to the supervision of this Court which Is on the face of it erroneous in law and, secondly, if the answer to that question be in the affirmative, whether the order under consideration suffers from such defect. 7. Before however I consider these questions it is necessary for me to determine whether the Chancellor acting in the exercise of the. powers conferred upon him by Section 42 of the Act constituted in law a tribunal subject to this Court's superintendence. That will depend upon whether in the exercise of these powers the Chancellor was required to act in a judicial or quasi-judicial capacity, for it is not a matter of dispute in this case that the question which he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether any person has been elected or appointed as, or is entitled to be, a member of any authority or other body of the University. The expressions 'duly elected or appointed' and 'entitled to be' clearly refer, in my opinion, to the legal rights of the person concerned under the Act and Statutes, and the Advocate-General agreed that the Chancellor could not otherwise dispose of the question referred to him. In such circumstances I can entertain no doubt that the section imposes on the Chancellor the duty to act judicially in arriving at his decision. 9. I now turn to the first of the two main questions in this case, namely, a consideration of the circumstances in which this Court can quash by 'certiorari' an order made by an inferior tribunal on the ground that it is wrong in law. In -- 'Deoria Sugar Mills Ltd. v. Govt. of Uttar Pradesh', AIR 1954 All 497 (D) a Full Bench of this Court -held that the wrong interpretation of a provision of law, or the application of a provision of law which was not applicable by an inferior tribunal in arriving at its decision, did not constitute an error apparent on the face of the record or proceedings w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odies 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 error apparent- on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. 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. 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 225 of the Constitution. It is convenient at this point to endeavour to ascertain a little more fully what are the broad and fundamental principles which regulate the exercise of this jurisdiction by the English Courts, and for this purpose I desire to refer to four cases. The first of these is -- 'Reg. v. Bolton', (1341) 1 QB 66 at p. 72 (H), described in a later case as summarising in impecc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncil said, at page 156 with regard to the superior Court's powers of supervision: That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.'' Finally, in 1952-1 KB 338 (F), Singleton L, J., said at p. 344: The decision of the tribunal was a 'speaking order' in the sense in which that term has been used.' The Court is entitled to examine it, and if there be error on the face of it, to quash it -- not to substitute another order in its place, but to remove that order out of the way, as one which should not be used to the detriment of any of the subjects of Her, Majesty , as Lord Cairns said in the Walsall case (I). 10. There can therefore1 in my opinion be no doubt that, in England, if the record of the proceedings of an inferior tribunal discloses on examination an error of law the proceedings can be quashed by a writ of 'certiorari'. The question I have to consider is whether the Supreme Court in Basappa's case (E) has declared such to be the law in India or whether, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. I do not think that there can be .read into these passages the meaning which the Advocate-General attributes to them. What it appears to me, if I may say so with very great respect, that the learned. Judge is seeking to do is not to modify but to explain and amplify the statement of law immediately preceding each of these passages. There can be no doubt that In the exercise of its jurisdiction to issue a writ of 'certiorari' the Court does not, and has no power to, substitute its own views for those of the inferior tribunal, nor has it power to quash a decision because it thinks it wrong unless the error is an error of law and is apparent on the face of the record. The expressions used by the learned Judge, palpably erroneous , . manifest error and patent error mean, in my judgment error which is apparent,, that is to say apparent on the face of the record. It is, I think, very significant that interposed between the two passages which I have quoted the learned Judge makes a reference to the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the 'Northumberland Tribunal case (F)', did not extend but merely declared what the law was and the fact that the correction of an error on the face of the record by a writ of 'certicrari' had been little used in recent years did not mean that the basis for the exercise of the power had fallen into abeyance (see the judgments of Denning L.J., at page 348 and of Morris L. J., at page 356). 13. I ought also to make some reference to two other cases to which my attention was invited by learned counsel. Reliance was also placed by both sides on the decision of the Privy Council in -- 'Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd.', AIR 1923 PC 66 (L), a case in which it was held that the decision of an arbitrator could not be set aside on the ground that the mistake of law, if mistake there was, made by the arbitrators did not appear on the face of the award. In my view this case is not of assistance because the remedy in the event of an error of law appearing on the face of an award of an arbitrator is by way of action on the award; the Court in England never interefers with such an award by 'certiorari': see the 'Nort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to the close of the 13 March his status was that of an 'ex officio' member but thereafter he became a member in his individual capacity, and this' change of status operated to bring to ah end his membership of the Executive Council. In order to appreciate the meaning of the proviso in question it is convenient to read the whole of the Statute of which it is a part. 1. (1) The members of the Executive Council, in addition to the Vice-Chancellor and the Treasurer, shall be - Class I -- Ex Officio Members The Deans of the Faculties. Class II --- Other Members, (i) Six members of the Court, elected by the Court at its annual meeting of whom two must be from among members of the-Court elected by the registered graduates; (ii) (a) Two Principals, elected by the Principals of Colleges, and (b) One member elected by the Wardens, the Chairman of the Delegacy and the Proctor from among themselves; (iii) Two members elected by the Academic Council from its own body; (iv) Three members appointed by the Chancellor. (2) Members other than 'ex offlcio' members shall hold office for a period of three years. Then comes the proviso to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the proviso. I find myself unable to accept this argument. The proviso states that the condition for continuance of office as a member of the Executive Council is, in the case of a member elected by the Court, his continuance as a member of the Court. The words continues to be a member of that body in this case, of the Court are, in in a phrase used by Lord Greene,. M. B. in --'Robinson v. London Brick Co. Ltd.', 1942-2 All ER 106 at p. 108 (N), plain, simple and unqualified . The Advocate-General admits that his argument involves this; that the proviso must be construed as if after the phrase 'member of that body' there are deemed to be added the words 'in the same capacity as he was elected or appointed to it'. It Is however a well-known rule of construction that if there is nothing to modify or quaiify the language which the Statute contains it must be construed in the ordinary and natural meaning of the words. In the case to which I have just referred both the Court of Appeal in England and the House of Lords declined to construe the words if the workman leaves a widow in Section 8 of the Workmen's Compensation Act as if they were fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y opinion the question is whether there is any thing in the conduct of the petitioner which disentitles him from the relief which he seeks. No case has been brought to my notice in which 'certiorari' has been refused on the ground suggested by the Advocate-General, and I think the petitioner is entitled to his order. A writ of 'certiorari' will accordingly issue quash-ing the order of the Chancellor dated 20-8-1954. 17. In the circumstances it is unnecessary for one to consider the suomissions of Sri Pathak that the petitioner was nominated a member of the Court by the Government of Nepal with affect from 15-^-1954, or that the nomination by the Chancellor was effective from midnight Of 12-3-1954. 18. The petitioner also prays for the issue of A mandamus. There is however no evidence before me which shows that the University authorities intend notwithstanding the quashing of the Chancellor's order to interfere in any way with the petitioner, and the Advocate-General has stated that they have no such intention. This prayer therefore fails. 19. In the circumstances, I shall make no order as to costs. - - TaxTMI - TMITax - Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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