Hari Vishnu Kamath Vs. Syed Ahmad
Ishaque & Ors  INSC 122 (9 December 1954)
AIYYAR, T.L. VENKATARAMA BHAGWATI, NATWARLAL
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN BOSE, VIVIAN
CITATION: 1955 AIR 233 1955 SCR (1)1104
Constitution of India, Art. 226-Powers of
High Court thereunder-Writ of certiorari against Election Tribunals after they
become functus officio-Certiorari against RecordDistinction between writ of prohibition
and writ of certiorari-Art. 227 of the Constitution-Superintendence of High
Court over Election Tribunals-Superintendence-Judicial as well as
administrative-Certiorari-Scope and character of -Representation of the People
(Conduct of Elections and Election Petitions) Rules, 1951-Rule 47(1)(c)-Whether
mandatory or directory-Error manifest on the fa1e of recordInterference by
Article 226 of the Constitution confers on
High Courts power to issue appropriate writs to any person or authority within
their territorial jurisdiction, in terms absolute and unqualified, and Election
Tribunals functioning within the territorial jurisdiction of the High Courts
would fall within the sweep of that power. The power of the High Court under Art.
226 to issue writ of certiorari against decisions of Election Tribunals remains
unaffected by Art. 329(b) of the Constitution.
The High Courts have power under Art. 226 of
the Constitution, to issue writs of certiorari for quashing the decisions of Election
Tribunals, notwithstanding that they become functus officio after pronouncing
The writ of certiorari for quashing the
offending order or proceeding is directed against a record, and as a record can
be brought up only through human agency, it is ordinarily issued to the person
or authority whose decision is to be reviewed. If it is the record of the
decision that has to be removed by certiorari, then the fact that the tribunal
has become funtus officio subsequent to the decision could have no effect on
the jurisdiction of Court to remove the record.
As the true scope of the writ of certiorari
to quash is that it merely demolishes the offending order, the presence of the
offender before the court, though proper, is not necessary for the exercise of
the jurisdiction or to render its determination effective. The writ of
certiorari being in reality directed against the record, there is no reason why
it should not be issued to whosoever has the custody thereof.
The writ of certiorari is directed to the
body or officer whose determination is to be reviewed, or to any other person
having the custody of the record or other papers to be certified.
1105 The scope of Art. 226 of the
Constitution 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
writs is coextensive 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.
There is one fundamental distinction between
a writ of prohibition and a writ of certiorari. A writ of prohibition will lie
when the proceedings are to any extent pending and a writ of certiorari for
quashing will lie after the proceedings have terminated in a final decision. 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
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.
Election Tribunals are subject to the
superintendence of the High Courtís under Art. 227 of the Constitution, and
that superintendence is both judicial and administrative. While in a certiorari
under Art. 226 the High Court can only annul the decision of the Tribunals, it
can, under Art. 227 do that, and also issue further directions in the matter.
As respects the character and scope of the
writs of certiorari the following propositions may be taken as well
(1) Certiorari will be issued 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 facts reached
by the inferior Court or Tribunal, even if they be erroneous.
(4) An error in the decision or determination
itself may also be amenable to a writ of "certiorari" if it is 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. What is an error apparent on the face of the record cannot be
defined precisely or exhaustively, there being an element 1106 of
indefiniteness inherent in its very nature, and it must be left to be
determined judicially on the facts of each case.
It is well-established that an enactment in
form mandatory might in substance be directory, and that the use of the word
"shall" does not conclude the matter. There are well known rules for
determining when a statute should be construed as mandatory and when directory.
All of them are only aids for ascertaining the true intention of the
legislature which is the determining factor, and that must ultimately depend on
The word "shall" in Rule 47(1)(c)
of the Representation of the People (Conduct of Elections and Election
Petitions) Rules, 1951 which enacts that "a ballot paper contained in a
ballot box shall be rejected if it bears any serial number or mark different
from the serial numbers or marks of ballot papers authorised for use at the
polling station or the polling booth at which the ballot box in which it was
found was used", cannot be construed as meaning "may". The
provisions of Rule 47(1)(c) are mandatory like the provisions of Rule 47(1)(a),
Rule 47(1)(b) and Rule 47(1)(d).
Held, that in maintaining the election of the
first respondent in the present case on the basis of the 301 votes which were
liable to be rejected under Rule 47(1)(c) the Tribunal was plainly in error. As
the error was manifest on the face of the record, it called for interference in
Held further, that the prayer of the
appellant to be declared elected must be refused under s. 97, as the respondent
had pleaded in his recrimination petition that there had been violation of Rule
23, and that by reason thereof the election of the appellant was liable to be
set aside, if he had been declared elected and that plea-had been established.
In the result the entire election was set
N. P. Ponnuswami v. Returning Officer, Namakkal
Constituency and Others ( S.C.R. 218), Durga Shankar v. Raghuraj Singh
( S.C.R. 267), T. C. Basappa v. T.
Nagappa ( S.C.R. 250), Clifford
O'Sullivan ([1921) 2 A.C. 570), Rex v. Electricity Commissioners ( 1 K.B.
171), B. v. Wormwood Scrubbs (Governor)
( 1 All E.R.
438), Waryam Singh and another v. Amarnath
and another ([ 1954] S.C.R. 565), Parry & Co. v. Commercial Employees'
Association, Madras ( S.C.R. 519), Veerappa Pillai v.
Raman and Raman Ltd. and Others (
S.C.R. 583), Ibrahim Aboobaker v. Custodian General ( S.C.R. 696), Rex v.
Northumberland Compensation Appeal Tribunal;
Ex parte Show ( 1 K.B. 711;  1 K.B. 338), Rex v. Nat Bell Liquors
Ltd. ( 2 A.C. 128), Batuk K. Vyas v. Surat Municipality (A.I.R. 1953 Bom.
133), Julius v. Bishop of Oxford ( L.R. 5 A.C. 214), Woodward v. Sarsons
([1875) L.R. 10 C. P. 733), Vashist Narain v Dev Chandra ( S.C.R. 509)
and In Be South Newington Election Petition ( 2 A.E.R. 503), referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 61 of 1954.
Appeal under Article 132(1) of the
Constitution of India from the Judgment and Order dated the 4th November 1953
of the High Court of Judicature at Nagpur in Civil Miscellaneous Petition No.
174 of' 1953.
N. C. Chatterjee, Bakshi Tek Chand and Veda
Vyas, (S. K. Kapur and Ganpat Rai, with them), for the appellant.
G. S. Pathak, (Rameshwar Nath and Rajinder
Narain, with him), for respondent No. 1.
1954. December 9. The Judgment of the Court
was delivered by VENKATARAMA AYYAR J.-The appellant and respondents 1 to 5
herein were duly nominated for election to the House of the People from the
Hoshangabad Constituency in the State of Madhya Pradesh. Respondents 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
Under this rule, the Election Commission had
decided that the ballot papers for the Parliamentary Consti142 1108 tuencies
should bear a green bar printed near the left margin, and that those for the
State Assembly should bear a brown bar.
What happened in this case was that voters
for the House of the People in polling stations Nos. 316 and 317 in Sobhapur
were given ballot papers with brown bar intended for the State Assembly,
instead of ballot papers with green bar which had to be used for the House of
the People. The total number of votes so polled was 443, out of which 62 were
in favour of the appellant, 301 in favour of the first respondent, and the
remaining in favour of the other candidates. Now, Rule 47(1)(c) enacts that
"a ballot paper contained in a ballot box shall be rejected if it bears
any serial number or mark different from the serial numbers or marks of ballot
papers authorised for use at the polling station or the polling booth at which
the ballot box in which it was found was used". In his election petition,
the appellant contended that in accordance with this provision the ballot
papers received at the Sobhapur polling stations not having the requisite mark
should have been excluded, and that if that had been done, the first respondent
would have lost the lead of 174 votes, and that he himself would have secured
the largest number of votes. He accordingly prayed that he might be declared
duly The first respondent contested the petition. He pleaded that the Returning
Officer at Sobbapur had rightly accepted the 301 votes, because Rule 47 was directory
and not mandatory , and that further the votes had been accepted as valid by
the Election Commission, and the defect, if any, had been cured. He also filed
a recrimination petition under section 97 of Act No. XLIII of 1951, and therein
pleaded inter alia that at polling station No. 299 at Malkajra and at polling
station No. 371 at Bammangaon ballot papers intended for use in the State
Legislature election had been wrongly issued to voters to the House of the
People by mistake of the polling officers, that all those votes had been
wrongly rejected by the Returning Officer, and that if they had been counted,
he would 1109 have got 117 votes more than the appellant. He accordingly
challenged the right of the appellant to be declared elected.
The Election Tribunal held by a majority that
Rule 47(1)(c) was mandatory, and that the 301 ballot papers found in the box of
the first respondent bearing the wrong mark should not have been counted; while
the third Member was of the opinion that rule was merely 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 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
thereafter there was no Tribunal to which directions could be issued under that
article. Mudholkar, J., agreed with this conclusion, but rested it on the
second ground aforesaid.
As regards article 227, while Sinha, C. J.
and Bhutt, J. held that it had no application to Election Tribunals, Mudholkar,
J. was of the view that they were also within the purview of that article, but
that in view of article 329(b), no relief could be granted either setting aside
the election of the first respondent, or declaring the appellant elected, and
that the only 1110 order that could be made was to set aside the decision of
the Tribunal. On the merits, Sinha, C.J. and Bhutt, J. took the view that the
decision of the Tribunal that the result of the election had not been
materially affected by the erroneous reception of votes was one within its
jurisdiction, and that it could not be quashed under article 226, even if it
had made a mistake of fact or law. But Mudholkar, J. held that as in arriving
at that decision the Tribunal had taken into consideration irrelevant matters,
such as the mistake of the polling officer in issuing wrong ballot papers and
its effect on the result of the election, it had acted in excess of its
jurisdiction. He was accordingly of opinion that the decision should be quashed
leaving it to the Election Commission "to perform their statutory duties
in the matter of the election petition".
The petition was dismissed in accordance with
the majority opinion. The learned Judges, however, granted a certificate under
article 132(1), and that is how this appeal comes before this Court.
The first question that arises for decision
in this appeal is whether High Courts have jurisdiction under article 226 to
issue writs against decisions of Election Tribunals.
That article confers on High Courts power to
issue appropriate writs to any person or authority within their territorial
jurisdiction, in terms absolute and unqualified, and Election Tribunals
functioning within the territorial jurisdiction of the High Courts would fall
within the sweep of that power. If we are to recognise or admit any limitation on
this power, that must be founded on some provision in the Constitution itself.
The contention of Mr. Pathak for the first respondent is that such a limitation
has been imposed on that power by article 329(b), which is as follows:
"Notwithstanding anything in this
Constitution 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 1111 as
may be provided for by or under any law made by the appropriate
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 part of that process would be barred. These are instances of
original proceedings calling in question an election, and would be within the
prohibition enacted in article 329(b). But when once proceedings have been
instituted in accordance with article 329(b) by presentation of an election
petition, the requirements of that article are fully satisfied. Thereafter when
the election petition is in due course heard by a Tribunal and decided, whether
its decision is open to attack, and if so, where and to what extent, must be
determined by the general law applicable to decisions of Tribunals. There being
no dispute that they are subject to the supervisory jurisdiction of the High
Courts under article 226, a writ of certiorari under that article will be
competent against decisions of the Election Tribunals also.
The view that article 329 (b) is limited in
its operation to initiation of proceedings for setting aside an election and
not to the further stages following on the decision of the Tribunal is
considerably reinforced, when the question is considered with reference to a candidate,
whose election has been set aside (1)  S.C R. 218.
1112 by the Tribunal. If he applies under
article 226 for a writ to set aside the order of the Tribunal, he cannot in any
sense be said to call in question the election; on the other hand, he seeks to
maintain it. His application could not, therefore, be barred by article 329(b).
And if the contention of the first respondent is well-founded, the result will
be that proceedings under article 226 will be competent in one event and not in
another and at the instance of one party and not the other. Learned counsel for
the first respondent was unable to give any reason why this differentiation
should be made. We cannot accept a construction which leads to results so
This question may be said to be almost
concluded by authority. In Durga Shankar v. Raghuraj Singh(1) the contention
was raised that this Court could not entertain an appeal against the decision
of an Election Tribunal under article 136 of the Constitution, as that would be
a proceeding in which an election is called in question, and that could be done
only before a Tribunal as provided in article 329(b). In overruling this
contention, Mukherjea, J. observed:
"The 'non-obstante' clause with which
article 329 of the Constitution begins and upon which the respondent's counsel
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
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
It is next contended that even if there is
jurisdic(1)  S.C.R. 267.
1113 tion 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 existence to which the writ could be issued. The question thus
raised is of considerable importance, on which there is little by way of direct
authority; and it has to be answered primarily on a consideration of the nature
of a writ of certiorari to quash. At the outset, it is necessary to mention
that in England certiorari is issued not only for quashing decisions but also
for various other purposes. It is issued to remove actions and indictment
pending in an inferior court for trial to the High Court; to transfer orders of
civil courts and sentences of criminal courts for execution to the superior
court; to bring up depositions on an application for bail when the prisoner has
been committed to the High Court for trial; and to remove the record of an
inferior court when it is required for evidence in the High Court.
These are set out in Halsbury's Laws of
England, Volume IX, pages 840 to 851. It is observed therein that the writ has
become obsolete in respect of most of these matters, as they are now regulated
by statutes. That is also the position in America appears from the following
statement in Corpus Juris Secundum, Volume 14, at page 151:
"At common law the writ of certiorari
was used both as a writ of review after final judgment and also to remove the
entire cause at any stage of the proceeding for hearing and determination in
the superior court. In the United States it is now the general rule that the
writ will be refused where there has been no final determination and the
proceedings in the lower, tribunal are still pending".
As we are concerned in this appeal with
certiorari to quash a decision, it is necessary only to examine whether having
regard to its nature such a writ for 1114 quashing can be issued to review the
decision of a Tribunal, which has ceased to exist.
According to the common law of England,
certiorari is a high prerogative writ issued by the Court of the King's Bench
or Chancery to inferior courts or tribunals in the exercise of supervisory
jurisdiction with a view to ensure that they acted within the bounds of their
jurisdiction. To this end, they were commanded to transmit the records of a
cause or matter pending with them to the superior court to be dealt with there,
and if the order was found to be without juirsdiction, it was quashed. The
court issuing certiorari to quash, however, could not substitute its own
decision 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.
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
The writ for quashing is thus directed
against a record, and as a record can be brought up only (1)  S C.R. 250.
(2)  4 A.C.30, 39.
1115 through human agency, it is issued to
the person or authority whose decision is to be reviewed. If it is the record
of the decision that has to be removed by certiorari, then the fact that the
tribunal has become functus officio subsequent to the decision could have no
effect on the jurisdiction of the court to remove the record. If it is a
question of issuing directions, it is conceivable that there should be in
existence a person or authority to whom they could be issued, and when a
certiorari other than one to quash the decision is proposed to be issued, the
fact that the tribunal has ceased to exist might operate as a bar to its issue.
But if the true scope of certiorari to quash is that it merely demolishes the
offending order, the presence of the offender before the court, though proper,
is not necessary for the exercise of the jurisdiction or to render its determination
Learned counsel for the first respondent
invites our attention to the form of the order nisi in a writ of certiorari,
and contends that as it requires the court or tribunal whose proceedings are to
be reviewed, to transmit the records to the superior court, there is, if the
tribunal has ceased to exist, none to whom the writ could be issued and none
who could be compelled to produce the record. But then, if the writ is in
reality directed against the record, there is no reason why it should not be
issued to whosoever has the custody thereof. The following statement of the law
in Ferris on the Law of Extraordinary Legal Remedies is apposite:
"The writ is directed to the body or
officer whose determination is to be reviewed, or to any other person having
the custody of the record or other papers to be, certifled".
Under section 103 of Act No. XLIII of 1951
the Tribunal is directed to send the records of the case after the order is
pronounced either to the relative District Judge or to the Chief Judge of the
Court of Small Causes, and there is no legal impediment to a writ being issued
to those officers to transmit the record to the High Court. We think that the
power to issue a 143 1116 writ under article 226 to a person as distinct from an
authority is sufficiently comprehensive to take in any person who has the
custody of the record, and the officers mentioned in section 103 of Act 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
The first respondent relied on the decision
in Clifford O'Sullivan(1) as authority for the position that no writ could be
issued against a Tribunal after it had ceased to exist. There, the facts were
that the appellants had been tried by a military Court and convicted on
3-5-1921. They applied on 10-5-1921 for a writ of prohibition against the
officers of the Court, and that was refused on the ground that they bad become
functi officio. The respondent contended that on the same reasoning certiorari
against the decision of an Election Tribunal which bad become functus officio
should also be refused, and he further relied on the observations of Atkin,
L.J. in Rex v. Electricity Commissioners; London Electricity Joint Committee Co.
(1920), Exparte(2) as establishing that there was no (1) (1921] 2 A.C. 570.
(2)  1 K B. 171, 204, 205.
1117 difference in law between a writ of
prohibition and a writ of certiorari. What is stated there is that both writs
of prohibition and certiorari have for their object the restraining of inferior
courts from exceeding their jurisdiction, and they could be issued not merely
to courts but to all authorities exercising judicial or quasi-judicial
functions. But there is one fundamental distinction between the two writs, and
that is what is material for the present purpose. They are issued at different
stages of the proceedings. When an inferior court takes up for hearing a matter
over which it has no jurisdiction, the person against whom the proceedings are
taken can move the superior court for a writ of prohibition, and on that, an
order will issue forbidding the inferior court from continuing the proceedings.
On the other band, if the court hears that cause or matter and gives a
decision, the party aggrieved would have to move the superior court for a writ
of certiorari, and on that, an order will be made quashing the decision on the
ground of want of jurisdiction. It might happen that in a proceeding before the
inferior court a decision might have been passed, which does not completely
dispose of the matter, in which case it might be necessary to apply both for
certiorari and prohibition-certiorari for quashing what had been decided, and
prohibition for arresting the further continuance of the proceeding.
Authorities have gone to this extent that ,in
such cases when an application is made for a writ of prohibition and there is
no prayer for certiorari, it would be open to the Court to stop further
proceedings which 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 1118 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
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........
is directed to the cause or proceeding in the
lower court and not to the court itself, while prohibition is a preventive
remedy issuing to restrain future action and is directed to the court
The decision in Clifford O'Sullivan(1) which
was concerned with a writ of prohibition is, therefore, inapplicable to a writ
of certiorari to quash. It has also to be noted that in that case as the
military Court had pronounced its sentence before the application was filed, a
writ of prohibition was bound to fail irrespective of the question whether the
Tribunal was functus officio or not, and that is the ground on which Viscount
Cave based his decision. He observed:
"A further difficulty is caused to the
appellants by the fact that the officers constituting the so-called military
Court have long since completed their investigation and reported to the commanding
officer, so that nothing remains to be done by them, and a writ of prohibition
directed to them would be of no avail. [See In re Pope(2) and Chabot v. Lord
In this connection, reference must be made to
the decision in B. v. Wormwood Scrubbs (Governor)(4). There., the applicant was
condemned by a court martial sitting in Germany, and in execution of its
sentence,, he was imprisoned in England. He applied for a writ of habeas
corpus, and contended that the military Court had no jurisdiction over him. The
Court (1)  2 A. C. 570.
(3) 118481 15 Q. B. 446.
(2) (1833] 5 B. & Ad. 681.
(4)  1 All E. R. 438, 1119 agreed with
this contention, and held that the conviction was without jurisdiction and
accordingly issued a writ of habeas corpus. But as he was in the custody of the
Governor of the Prison under a warrant of conviction, unless the conviction
itself was quashed no writ of habeas corpus could issue. In these
circumstances, the Court issued a writ of certiorari quashing the conviction by
the court martial. It is to be noted that the military Court was an ad hoc
body, and was not in existence at the time of the writ, and the respondents to
the application were the Governor and the Secretary for War. The fact that the
court martial was dissolved was not considered a bar to the grant of
Our attention has also been invited to a
decision of this Court in The Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff
Association and others (1). In that case, following the decision in Clifford
O'Sullivan(2) the Calcutta High Court had refused applications for the issue of
writs 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 a -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 (1) Civil Appeal No.
42 of 1952.
(2) (1921] 2A. C. 570.
1120 defeated by technical -considerations of
form and procedure.
In P. C. Basappa v. T. Nagappa(1), this Court
"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. 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".
It will be in consonance with these
principles to hold that the High Courts have power under article 226 to issue
writs of certiorari for quashing the decisions of Election Tribunals,
notwithstanding that they become functus officio after pronouncing the
We are also of opinion that the Election
Tribunals are subject to the superintendence of the High Courts under article
227 of the Constitution, and that superintendence is both judicial and
administrative. That was held by this Court in Waryam Singh and another v.
Amarnath and another(2), where it was observed that in this respect article 227
went further than section 224 of the Government of India Act, 1935, under which
the superintendence was purely administrative, and that it restored the
position under section 107 of the Government of India Act, 1915. It may also be
noted that while in a certiorari under article 226 the High Court can only
annul the decision of the Tribunal, it can, under article 227, do that, and
also issue further directions in the matter. We must accordingly hold that the
application of the appellant for a writ of certiorari and for other reliefs was
maintainable under articles 226 and 227 of the Constitution.
Then the question is whether there are proper
grounds for the issue of certiorari in the present case.
(1) (1955] S.C.R. 250.
(2)  S.C.R. 565.
1121 There was considerable argument before
us as to the character and scope of the writ of certiorari and the conditions
under which it could be issued. The question has been considered by this Court
in Parry & Co. v. Commercial Employees' Association, Madras(1), Veerappa
Pillai v. Raman and Raman Ltd. and Others(2), Ibrahim Aboobaker v. Custodian
General(3) and quite recently in T. C. Basappa v. T. Nagappa(4).
On these authorities, the following
propositions may be taken as established: (1) Certiorari will be issued 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 decide 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
(4) The further question on which there has
been some controversy is whether a writ can be issued, when the decision of the
inferior Court or Tribunal is erroneous in law. This question came up for
consideration in Rex v. Northumberland Compensation Appeal Tribunal; Ex parte
Shaw(5), and it was held that when a Tribunal made a "speaking order"
and the reasons given in that order in support of the decision (1)  S
C.R. 519. (2)  S.C.R. 583.
(3)  S.C.R. 696. (4) (1955] S.C.R. 250.
(5)  1 K.B. 711.
1122 were bad in law, certiorari could be
granted. It was pointed out by Lord Goddard, C. J. that had always been
understood to be the true scope of the power. Walsall Overseers v. London and
North Western Ry. Co.(1) and Rex v. Nat Bell Liquors Ld. (2) were quoted in
support of this view. In Walsall Overseers v. London and North Western Ry.
Co.(1), Lord Cairns, L.C. observed as
"If there was upon the face of the order
of the court of quarter sessions anything which showed that order was
erroneous, the Court of Queen's Bench might be asked to have the order brought
into it, and to look at the order, and view it upon the face of it, and if the
court found error upon the face of it, to put an end to its existence by
In Rex v. Nat Bell Liquors Ld. (2) Lord
"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".
The decision in Rex v. Northumberland
Compensation Appeal Tribunal; Ex parte Shaw(3) was taken in appeal, and was
affirmed by the Court of Appeal in Rex v. Northumberland Compensation Appeal
Tribunal; Ex parte Shaw(4). In laying down that an error of law was a ground
for granting certiorari, the learned Judges emphasised that it must be apparent
on the face of the record. Denning, L.J. who stated the power in broad and
general terms observed:
"It will have been seen that throughout
all the cases there is one governing rule: certiorari is only available to
quash a decision for error of law if the error appears on the face of the
The position was thus summed up by Morris,
L.J. "It is plain that certiorari will not issue as the cloak of an appeal
in disguise. It does not lie in order to bring an order or decision for
rehearing of the issue raised in the proceedings. It exists to correct error of
law where revealed on the face of an order or decision, (1)  4 A.C. 30.
(3)  1 K. B. 711.
(2)  2 A.C. 128.
(4)  1 K.B. 338.
1123 or irregularity, or absence of, or
excess of, jurisdiction where shown".
In Veerappa Pillai v. Raman & Raman 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
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 application to the facts of a particular case. When does an error cease to
be mere error, and become an error apparent on the face of the record? Learned
Counsel on either side were unable to suggest any clear-cut rule by which, the
boundary between the two classes of errors could be demarcated. Mr. Pathak for
the first respondent contended on the strength of certain observations of
Chagla, C. J. in Batuk K. Vyas v. Surat Municipality(3) that no error could be
said to be apparent on the face of the record if it was not self-evident, and
if it required an examination or argument to establish it. This test might
afford a satisfactory basis for decision in the majority of cases. But there
must be cases in (1)  S.C.R. 583. (2)  S.C.R. 250.
(3) A.I.R. 1953 Bom. 133.
144 1124 which even this test might break
down, because judicial opinions also differ, and an error that might be
considered by one Judge as self-evident might not be so considered by another.
The fact is that what is an error apparent on the face of the record cannot be
defined precisely or exhaustively, there being an element of indefiniteness
inherent in its very nature, and it must be left to be determined judicially on
the facts of each case.
These being the principles governing the
grant of certiorari, we may now proceed to consider whether on the facts found,
this is a fit case for a writ being issued.
The Tribunal, as already stated, held by a
majority that Rule 47 (1) (c) was mandatory, and that accordingly the 301
ballot papers found in the box of the first respondent should have been
rejected under that rule on the ground that they had not the distinguishing
marks prescribed by Rule 28.
It bad also held under section 100(2) (c) of
Act No. XLIII of 1951 that the result of the election had not been materially
affected by the failure of the Returning Officer to comply with Rule 47(1)(c).
It accordingly dismissed the petition. Now the contention of Mr. N. C.
Chatterjee for the appellant is that in reaching this conclusion the Tribunal
had taken into account matters which are wholly extraneous to an enquiry under
section 100(2)(c), such as the mistake of the polling officer in issuing wrong
ballot papers and its possible effect on the result of the voting, and that
accordingly the decision was liable to be quashed by certiorari both on the
ground of error of jurisdiction and error in the construction of section 100(2)
(c) 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) 1125
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 the matter of accepting them is not liable to be questioned.
He relies on certain well-recognised rules of construction such as that a
statute should be construed as directory if it relates to the performance of
public duties, or if the conditions prescribed therein have to be performed by
persons other than those on whom the right is conferred. In particular, he
relied on the following statement of the law in Maxwell on Interpretation of
Statutes, 10th Edition, pages 381 and 382:
"To hold that an Act which required an
officer to prepare and deliver to another officer a list of voters on or before
a certain day, under a penalty, made a list not delivered till a later day
invalid, would in effect, put it in the power of the person charged with the
duty of preparing it to disfranchise the electors, a conclusion too
unreasonable for acceptance".
He contended that to reject the votes of the
electors for the failure of the polling officer to deliver the correct ballot
papers under Rule 23 would be to disfranchise them, and that a construction
which involved such a consequence should not be adopted.
It is well-established that an enactment in
form mandatory might in substance be directory, and that the use of the word
"shall" does not conclude the matter. The question was examined at
length in Julius v. Bishop of Oxford(1), and various rules were (1)  5
1126 laid down for determining when a statute
might be construed as mandatory and when as directory. They are well-known, and
there is no need to repeat them. But they are all of them only aids for
ascertaining the true intention of the legislature which is the determining factor,
and that must ultimately depend on the context. What we have to see is whether
in Rule 47 the word "shall" could be construed as meaning
"may". Rule 47(1) deals with three other categories of ballot papers,
and enacts that they shall be rejected.
Rule 47(1) (a) relates to a ballot paper
which "bears any mark or writing by which the elector can be
The secrecy of voting being of the essence of
an election by ballot, this provision must be held to be mandatory, and the
breach of it must entail rejection of the votes. That was held in Woodward v.
Sarsons(1) on a construction of section 2 of the Ballot Act, 1872. That section
had also a provision corresponding to Rule 47(1) (b), and it was held in that
case that a breach of that section 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 (1)  L.R. 10 C.P. 733.
1127 of compliance so far as rejection is
concerned, and that is conclusive to show that the provision is mandatory.
It was next contended that the Election
Commission had validated the votes in question, and that in consequence the
acceptance of the ballot papers by the Returning Officer under Rule 47 (1) (c)
was not open to challenge. It appears that interchange of ballot papers had occurred
in several polling stations where election was held both for the House of the
People and the State Assembly, and the Election Commission had issued
directions that the rule as to the distinguishing mark which the ballot paper
should bear under Rule 28 might be relaxed, if its approval was obtained before
the votes were actually counted. The Returning Officer at Hoshangabad reported
to the Chief Electoral Officer, Madhya Pradesh that wrong ballot papers had
been issued owing to the mistake of the polling officers, and obtained the
approval of the Commission for their being included, before the votes were
counted. It is contended by Mr. Pathak that the power of the Election
Commission to prescribe a distinguishing mark includes the power to change a
mark already prescribed, and substitute a fresh one in its stead, and that when
the Election Commission approved of the interchange of ballot papers at
Hoshangabad, it had, in effect, approved of the distinguishing mark which those
ballot papers bore, and that they were therefore rightly counted as valid by
the Returning Officer.
There is no dispute that the Election
Commission which has the power to prescribe a distinguishing mark for the
ballot papers has also the power to change it. But the question is, was that
done? The Commission did not decide in terms of Rule 28 that the ballot paper
for election to the House of the People should bear a brown bar and not a green
The green bar continued to be the prescribed
mark for the election under that rule, and the overwhelming majority of the
ballot papers bore that mark. What the Commission has done is to condone the
defects in a specified number of ballot papers issued in the 1128 Hoshangabad
polling stations. That is not prescribing a distinguishing mark as contemplated
by Rule 28, as that must relate to the election as a whole. There can be no
question of there being one distinguishing mark for some of the voters and
another for others with reference to the same election and at the same polling
There is another difficulty-in the way of
accepting 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 bad, as it
is based on considerations extraneous to that section. This opens up the
question as to the scope of an enquiry under section 100(2)(c). That section
requires that before an order setting aside an election could be made, two
conditions must be satisfied: It must firstly be shown that there had been
improper reception or refusal of a vote or reception of any vote which is void,
or noncompliance with the provisions of the Constitution or of the Act (No.
XLIII of 1951) or any rules or orders made under that Act or of any other Act
or rules re1129 lating to the election or any mistake in the use of the
prescribed form. It must further be shown that as a consequence thereof the
result of the election had been materially affected. The two conditions are
cumulative, and. must both be established, and the burden of establishing them
is on the person who seeks to have the election set aside. That was held by
this Court in Vashist Narain v. Dev Chandra(1). The Tribunal has held in favour
of the appellant that Rule 47 (1) (c) is mandatory, and that accordingly in
accepting the 301 ballot papers which had not the requisite distinguishing
marks the Returning Officer had contravened that rule. So, the first condition
has been satisfied. Then there remains the second, and the question is whether
the appellant has established that the result of the election had been
materially affected by contravention of Rule 47(1)(c). The contention of Mr.
Chatterjee is that when once he has
established that the Returning Officer had contravened Rule 47 (1) (c), he has
also established that the result of the election had been materially affected,
because the marginal difference between the appellant and the first respondent
was only 174 votes, and that if the ballot papers wrongly counted under Rule 47
(1) (c) had been excluded and the valid votes alone counted, it was be and not
the first respondent that should have been declared elected under Rule 48, and
that the result of the election bad thus been materially affected.
In reply, Mr. Pathak contends that this argument,
though it might have proved decisive if no other factor had intervened, could
not prevail in view of the other facts found in this case. He argued that Rule
47 was not the only rule that had been broken; that owing to the mistake of the
polling officer wrong ballot papers had been issued, and thus Rule 23 had been
broken; 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)  S.C.R. 509.
1130 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
that as there was no complaint about the breach of Rule 23 in that petition, it
was outside the scope of the enquiry. It is unnecessary to consider whether it
was open to the Tribunal to enquire into matters other than those set out in
the petition, when the returned candidate merely seeks to support the
He has in this case presented a recrimination
petition tinder section 97 raising the question of breach of Rule 23, and that
is therefore a matter which has to be determined.
The Tribunal has gone into that question, and
has held that there was a violation of that rule, and its conclusion is not
open to attack in these proceedings, and has not, in fact, been challenged. The
real controversy is as to the effect of that finding on the rights of the
parties. The answer to this is to be found in section 97. Under that section,
all matters which could be put forward as grounds for setting aside the
election of the petitioner if be had been returned under Rule 48 could be urged
in answer to the prayer in his petition that he might be declared duly elected.
And the result of this undoubtedly is that the first respondent could show that
if the appellant had been returned under Rule 48 his election would have been
liable to be set aside for breach of Rule 23, and that therefore he should not
be declared 1131 elected. That according to the Tribunal having been shown, it
is open to us to hold that by reason of the violation of Rule 23, the appellant
is not entitled to be declared elected.
Can we go further, and uphold the election of
the first respondent under section 100 (2) (c) on the ground that if Rule 23
had not been broken, the wasted votes would have gone to him? The argument of
the appellant is that would, in effect, be accepting the very votes which the
Legislature says in Rule 47(1) should be rejected, and that it is not warranted
by the scheme of the Act. We think that this contention is well-founded.
Section 46 of the Act provides that "when the counting of the votes has
been completed, the Returning Officer shall forthwith declare the result of the
election in the manner. provided by this Act or the rules made there under".
The rule contemplated by this section is Rule 48. That provides that the
Returning Officer should after counting the votes "forthwith declare the
candidate or candidates to whom the largest number of valid votes has been
given, 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), 145 1132
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 provides that "the decision of the
Returning Officer as to the validity of a ballot paper.......shall be final
subject to any decision to the contrary given by a Tribunal on the trial of an
election petition calling in question the election". Under this provision,
the Tribunal is constituted a Court of appeal against the decision of the
Returning Officer, and as such its jurisdiction must be coextensive with that
of the Returning Officer and cannot extend further. If the Returning Officer had
no power under Rule 47 to accept a vote which had not the distinguishing mark
prescribed by Rule 28 on the ground that it was due to the mistake of the
presiding officer in delivering the wrong ballot paper-it is not contended that
he has any such power, and clearly he has not-the Tribunal reviewing this
decision under Rule 47(4) can have no such power. It cannot accept a ballot
paper which the Returning Officer was bound to reject under Rule 47.
It is argued with great insistence that as
the object of the Election Rules is to discover the intention of the majority
of the voters in the choice of a representative, if an elector has shown a
clear intention to vote for a particular candidate, that must be taken into
account under section 100(2) (c), even though the vote might be bad for noncompliance
with the formalities. But when the law prescribes that the intention should be
expressed in a particular manner, it can be taken into account only if it is so
expressed. An intention not duly expressed is, in a Court of law, in the same
position as an intention not expressed at all.
The decision in Woodward v. Sarsons (1) was
cited in support of the contention that for deciding whether the result of the
election had been affected it was permissible to take into account votes which
bad been rendered invalid by the mistake of the polling officer. That was a
decision on section 13 of the Ballot Act, (1)  L.R. 10 C.P. 733.
1133 1872 which provided that no election
should be declared invalid by reason of non-compliance with the rules, if it
appeared to the Tribunal "that the election was conducted in accordance
with the principles laid down in the body of this Act, and that such
noncompliance or mistake did not affect the result of the election". What
happened in that case was that all the ballot papers issued at polling station
No. 130 had been marked by the polling officer 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
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 Returning
Officer on the ground that it did not bear the requisite official mark.
The Court in a petition to set aside the
election held on an examination of the ballot paper that the official stamp had
been applied, though imperfectly, and that it should have been accepted. The
actual decision is in itself of no assistance to the respondent; but the Court
observed in the course of its judgment:
(1) (1948] 2 All E.R 503.
1134 "We think that, in a case where the
voter is in no sense to blame, where he has intended to vote and has expressed
his intention of voting in a particular way, and, so far as his part of the
transaction is concerned, has done everything that he should, and the only
defect raised as a matter of criticism of the ballot paper is some defect on
the part of the official machinery by which the election is conducted, special
consideration should (and, no doubt, would) be given, in order that the voter
should not be disfranchised".
These observations are no authority for the
proposition that if there was no mark at all on the ballot paper it could still
be accepted on the ground of intention. On the other hand, the whole of the
discussion is intelligible only on the hypothesis that if there was no mark at
all on the ballot paper, it must be rejected.
In the result, we must bold that in
maintaining the election of the first respondent on the basis of the 301 votes
which were liable to be rejected under Rule 47(1)(c) the Tribunal was plainly
in error. Mr. Chatterjee would have it that this error is one of jurisdiction.
We are unable to take this view, because the Tribunal had jurisdiction to
decide whether on a construction of section 100 (2) (c) it could go into the
fact of breach of Rule 23, and if it committed an error, it was an error in the
exercise of its jurisdiction and not in the assumption thereof. But the error
is manifest on the face of the record, and calls for interference in
We have held that the election of the first
respondent should be set aside. We have further held that if the Returning
Officer had, after rejecting the 301 ballot papers which did not bear the
correct marks, declared the appellant elected, his election also would have to
be declared void.
The combined effect of section 97 and section
100(2)(c) is that there is no valid election. Under the circumstances, the
proper order to pass is to quash the decision of the Tribunal and remove it out
of the way by certiorari under article 226, and to set aside the election of
the first respondent in exercise of the powers conferred by article 1135 227.
As a result of our decision, the Election Commission will now proceed to hold a
This appeal must accordingly be allowed, the
decisions of the High Court and the Tribunal quashed and the whole election set
aside. The parties will bear their own costs throughout.