T. C. Basappa Vs. T. Nagappa & ANR
[1954] INSC 57 (5 May 1954)
MUKHERJEA, B.K.
AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND
(CJ) BOSE, VIVIAN BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 440 1955 SCR 250
CITATOR INFO :
R 1955 SC 233 (10,19,21,22) R 1955 SC 756
(2,6) R 1957 SC 804 (10) R 1958 SC 398 (19) F 1958 SC 845 (20) R 1959 SC 725
(11) R 1960 SC 321 (10,11,22,23) R 1962 SC1621 (5,75,113) F 1966 SC 81 (4) RF
1967 SC 1 (53,82) RF 1970 SC1334 (11) R 1973 SC2684 (7) R 1981 SC 789 (11) F
1990 SC 487 (10) RF 1992 SC 435 (19)
ACT:
Constitution of India-Article 226-Certiorari,
writ of General principles governing the issue thereof-Manifest and patent
error apparent on the face of proceedings-Clear ignorance or disregard of a
provision of law-Absence or excess of jurisdiction.
HEADNOTE:
The issue of prerogative writs in the nature
of habeas corpus, mandamus, quo warrantto, prohibition and certiorari had their
origin in England-in the King's prerogative power of superintendence over the
due observance of law by his officials and Tribunals.
The powers of the Supreme Court as well as of
all the High Courts in India under articles 32 and 226 of the Constitution
respectively are very wide.
The Supreme Court as well as the High Courts
in India can make an order or issue a writ in the nature of certiorari in all
appropriate cases and in appropriate manner so long as the broad and
fundamental principles of English law regulating the exercise of jurisdiction
in the matter of granting such writs are adhered to.
A writ of certiorari can be availed of only
to remove or adjudicate upon the validity of judicial acts, which expression
includes the exercise of quasi-judicial functions by administrative bodies or
other authorities or persons obliged to exercise such functions but does not
include purely ministerial acts.
In granting a writ of certiorari the superior
Court does not exercise the power of an appellate Tribunal, the control
exercised through it being merely in a supervisory and not appellate capacity.
It does not review or reweigh the evidence
upon which the determination of the inferior Court is based nor does it
substitute its own views for those of the inferior Tribunal.
A writ of certiorari is generally granted
when a Court has acted without or in excess of its jurisdiction. The want of
jurisdiction may &rise from the nature of the subject-matter of the
proceeding or from the absence of some preliminary proceeding or the Court
itself may not be legally constituted or may suffer from a certain disability
by reason of extraneous circumstances. If the jurisdiction of the Court depends
upon the existence of some collateral fact the Court cannot by a wrong decision
of the fact assume jurisdiction which it would not otherwise possess.
A writ of certiorari is available in those
cases where a Tribunal though competent to enter upon an enquiry acts in
flagrant disregard of the rules of procedure or violates the principles of
natural justice where no particular procedure is prescribed.
251 A mere wrong decision cannot be corrected
by a writ of certiorari as that would be -using it as the cloak of an appeal in
disguise but a manifest error apparent on the face of the proceeding based on a
clear ignorance or disregard of the provisions of law or absence of or excess
of jurisdiction, when shown, can be so corrected.
Held, that in view of the facts and
circumstances of the case the High Court was not right in holding that
sufficient and proper grounds existed for the issue of certiorari in the present
case.
Ryots of Garabandho v. Zemindar of
Parlakimedi (70 I.A. 129, 140); Election Commission, India v. Saka Venkata
Subba Rao ([1953] S.C.R. 1144, 1150). Rex v. Electricity Commissioners ([1924]
1 K.B. 171, 205); Walshall's Overseers v. London and Northern Western Railway
Co. (4 A.C. 30, 39);
King v. Nat Bell Liquors Limited ([19221 2
A.C. 128, 156);
Banbury v. Fuller, (9 Exch. 111); Queen v.
Commissioners for Special Purposes of the Income Tax (21 Q.B.D. 313); Rex v.
Northumberland Compensation Appellate
Tribunal ([1952] 1 K.B. 338, 357); Veerappa Pillai v. Raman & Raman Ltd.,
([19521 S.C.R. 583, 594); and Halsbury, Vol. IX, 2nd edition, page 880,
referred to.
CiiviL Appellate JURISDICTION: Civil Appeal
No. 48 of 1954.
Appeal from the Judgment and Order dated the
1 1 th January, 1954, of the High Court of Judicature of Mysore in Civil
Petition No. 29 of 1953, quashing the Order of the Election Tribunal, Shimoga,
dated the 15th January, 1953, in Shimoga No. I of 1952-53.
K. S. Krishnaswami Iyengar (K. S.
Venkataranga Iyengar and M. S. K. Iyengar, with him) for the appellant.
Dr. Bakshi Tek Chand (R. Ganapathy Iyer and
M. S. K. Sastri, with him) for respondent No. 1.
C. K. Daphtary, Solicitor-General for India
(Jindra Lal, Porus A. Mehta and P. O. Gokhale, with him) for respondent No. 3.
1954. May 5. The Judgment of the Court was
delivered by MUKERGEA J.-This appeal is directed against a judgment of a
Division Bench of the Mysore High Court, dated the 11th January, 1954, by which
the learned Judges granted an application, presented by the respondent No. I
under article 226 of the Constitution, and directed a writ of certiorari to
issue quashing the,, proceedings and order of the Election Tribunal, Shimoga,
dated the 15th January, 1953, in Shimoga Election Case No. 1 of 1952-53.
The facts material for purposes of this
appeal may be briefly narrated as follows: The appellant and respondent No. 1,
as well as eight other persons, who figured as respondents Nos. 2 to 9 in the
proceeding before the High Court, were duly nominated candidates for election
to the Mysore Legislative Assembly from Tarikere Constituency at the general
election of that State held in January , 1952.
Five of these nominated candidates withdrew
their candidature within the prescribed period and the actual contest at the
election was between the remaining five candidates including the appellant and respondent
No. 1. The polling took place on the 4th January, 1952, and the votes were
counted on the 26th of January following. As a result, of the counting the
respondent No. 1 was found to have secured 8,093 votes which was the largest in
number and the appellant followed him closely having obtained 8,059 votes.
The remaining three candidates, who were
respondents Nos. 2, 3 and 4 before the High Court, got respectively 6,239,
1,644 and 1,142 votes. The Returning Officer declared the respondent No. 1 to
be the successful candidate and this declaration was published in the Mysore
Gazette on the 11th February, 1952. The respondent No. 1. lodged his return of
election expenses with the necessary declaration sometime after that and notice
of this return was published on the 31st March, 1952. The appellant thereafter
filed a petition before the Election Commission, challenging the validity of
the election, inter alia, on the grounds that there was violation of the
election rules in regard, to certain matters and that the respondent No. I by
himself or through his agents were guilty of a number of major corrupt
practices which materially affected the result of the election. The petitioner
prayed for a declaration that the election of respondent No. I was void and
that he himself was duly elected. This petition, which bears date, 10th of
April, 1952, was sent by registered post to the Election Commission and was
-actually received by the latter on the 14th of April,; following. The Election
Commission referred the matter for determination by the Election Tribunal at
253 Shimoga and it came up for hearing before it on the 25th of October, 1952.
On that date the appellant filed an application for amendment of the -petition,
heading it as one under Order VI, rule 17, of the Civil Procedure Code, and the
only amendment sought for was a modification of the prayer clause by adding a
prayer for declaring the entire election to be void. It was stated at the same
time that in case this relief could not be granted, the petitioner would, in
the alternative pray for the relief originally claimed by him, namely, that the
election of respondent No. I should be declared to be void and the petitioner
himself be held to be the elected candidate at the election. Despite the
objection of respondent No. 1, the Tribunal granted this prayer for amendment.
The hearing of the case then proceeded and on the averments made by the
respective parties, as many as 27 issues were framed. Of them, issues Nos. 1,
5, 6, 11, 12 and 14 are material for our present purpose and they stand as
follows :
(1) Has there been infringement of the rules
relating to the time of commencement of poll by reason of the fact that the
polling at Booth No. I for Ajjampur fixed at Ajjampur to take place at 8 A.m.
did not really commence until about half an hour later as alleged in paragraph
4 of the petition ? (5) Did the 1st respondent hire and procure a motor bus
which was a service bus running between Tarikere and Hiriyur, belonging to one
Ahmed Jan, as alleged in paragraph I of the particulars and thereby commit the
corrupt practice referred to in it ? (6) Did the 1st respondent take the
assistance of a number of Government servants to further the prospects of his
election as alleged in paragraph 2 of the list of particulars ? (11) Is the
return of election expenses lodged by the 1st respondent false in material
particulars and has the 1st respondent omitted to include in the return of
election expenses, expenses incurred by him in connection with the election
which would easily exceed the sanctioned limit of, Rs. 5,000 as per particulars
stated in paragraph 7 of the list of particulars 254 (12) Has the election of
the 1st respondent been procured and induced by the said corrupt practices with
the result that the election has been materially affected ? (14) Would the
petitioner have obtained a majority of votes had it not been for the aforesaid
corrupt and illegal practices on the part of the first respondent? The Tribunal
by a majority of 2 to 1 found all these issues in favour of the petitioner and
against the respondent No. 1 and on the strength of their findings on these
issues, declared the election of respondent No. 1 to be void and the petitioner
to have been duly elected. The judgment of the Tribunal is dated the 15th of
January, 1953. On the 5th February, 1953, the respondent No. I presented an
application before the Mysore High Court under article 226 of the Constitution
praying for a writ or direction in the nature of certiorari calling for the
records of the proceeding of the Election Tribunal in Election Petition No. I
of 195253 and quashing the same including the order pro- nounced by the Tribunal
as mentioned above. This application was heard by a Division Bench consisting
of Medappa C.J. and Balakrishnaiya J. and by their judgment dated the. 11th
January, 1954, the learned Judges allowed the petition of respondent No. 1 and
directed the issue of a writ of certiorari as praved for. It is against this
judgment that the appellant has come up to this Court on the strength of a
certificate granted by the High Court under articles 132(1) and 133(1) (c) of
the Constitution.
The substantial contention raised by Mr.
Ayyangar, who appeared in support of the appeal, is, that the learned Judges of
the High Court misdirected themselves both on facts and law, in granting
certiorari in the present case to quash the determination of the Election
Tribunal. It is urged, that the Tribunal in deciding the matter in the way it
did did not act either without jurisdiction or in excess of its authority, nor
was there any error apparent on the face of the proceedings which could justify
the issuing of a writ to quash the same. It is argued by the learned counsel
255 that, what the High Court has chosen to describe as errors of jurisdiction
are really not matters which affect the competency of the Tribunal to enter or
adjudicate upon the, matter in controversy between the parties and the reasons
assigned by the learned Judges in support of their decision proceed upon a
misreading and misconception of the :findings of fact which the Tribunal
arrived at. Two points really arise for our consideration upon the contentions
raised in this appeal. The first is, on what grounds could the High Court, in
exercise of its powers under article 226 of the Constitution, grant a writ of
certiorari to quash the adjudication of the Election Tribunal ? The second is,
whether such grounds did actually exist in the present case and are the High
Court's findings on that point proper findings which should not be disturbed in
appeal ? The principles upon which the superior Courts in England interfere by
issuing writs of certiorari are fairly well known and they have generally
formed the basis of decisions in our Indian Courts. It is true that there is
lack of uniformity even in the pronouncements of English Judges, with regard to
the grounds upon which a writ, or, as it is now said, an order of certiorari,
could issue, but such differences of opinion are unavoidable in judge-made law
which has developed through a long course of years. As is well known, the issue
of the prerogative writs, within which certiorari is included, had their origin
in England in the King's prerogative power of superintendence over the due
observance of law by his officials and Tribunals. The writ of certiorari is so
named because in its original form it required that the King should be "
certified of " the proceedings to be investigated and the object was to
secure by the authority of a superior Court, that the jurisdiction of the
inferior Tribunal should be properly exercised (1).
These principles were transplanted to other
parts of the King's dominions. In India, during the British days' the three
chartered High Courts of Calcutta, Bombay and Madras were alone competent to
issue (1) Vide Ryots of Garbandho v, Zemindar of Parlkime 70 I,A.
129 at page 140 256 writs and that too within
specified limits and the power was not exercisable by the other High Courts at
all. " In that situation " as this Court observed in Election
Commission, India v. Saka Venkata Subba Rao (1), " the makers of the
Constitution having decided to provide for certain basic safeguards for the
people in the new set up, which they called fundamental rights, evidently
thought it necessary to provide also a quick and inexpensive remedy for the
enforcement of such rights and, finding that the prerogative writs, which the
Courts in England had developed and used whenever urgent necessity demanded
immediate and decisive interposition, were peculiarly suited for the purpose,
they conferred, in the States' sphere, new and wide powers on the High Courts
of issuing directions, orders, or writs primarily for the enforcement of
fundamental rights, the power to issue such directions " for any other
purpose " being also included with a view apparently to place all the High
Courts-in this country in somewhat the same position as the Court of King's
Bench in England." The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme Court as well as of all
the High Courts in India extend to issuing of orders, writs or directions
including writs in the nature of habeas corpus, mandamus, quo warranto,
prohibition and certiorari as may be 'considered necessary for enforcement of
the fundamental rights and in the case of the High Courts, for other purposes
as well. 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.
One of the fundamental principles in regard
to the issuing of a writ of certiorari is, that the. writ can be (I [1953]
S.C.R. 1114 at 1150, 257 of judicial acts. The expression " judicial acts
" includes the exercise of quasi-judicial functions by administrative
bodies or other authorities or persons obliged to exercise such functions and
is used in contrast with what are purely ministerial acts. Atkin L. J. thus
summed up the law on this point in Rex v. Electricity Commissioners (1) :
" Whenever anybody or persons having
legal authority to determine questions affecting the rights of subjects and
having the duty to act judicially act in excess of their legal authority they
are subject to the controlling Jurisdiction of the King's Bench Division
exercised in these writs." The second essential feature of a writ of
certiorari is that the control which is exercised through it over judicial or
quasi-judicial Tribunals or bodies is not in an appellate but supervisory
capacity. In granting a writ of certiorari the superior Court does not exercise
the powers 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 views 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 detriment of any person(2).
The supervision of the superior Court
exercised through writs of certiorari goes on two points, as has been expressed
by Lord Sumner in King v. Nat. Bell Liquors Limited (3). One is the area of
inferior jurisdiction and the qualifications and conditions of its exercise ;
the other is the observance of law in the course of its exercise. These two
heads normally cover all the grounds on which a writ of certiorari could be
demanded. In fact there is little difficulty in the enunciation of the
principles;
the difficulty really arises in applying the
principles to the facts of a particular case.
(I) (1924] I K.B. 17I at 205.
(2) Vide Per Lord Cairns in Walshall's
Overseers v. London and North Western Railway Co., 4 A.C. 30, 39.
(3) [1922) 2 A.C. 128, 156, 33 258 Certiorari
may lie and is generally granted when a Court has acted without or in excess of
its jurisdiction. The want of jurisdiction may arise from the nature of the
subject-matter of the proceeding or from the absence of some preliminary
proceeding or the Court itself may not be legally constituted or suffer from
certain disability by reason of extraneous circumstances(1). When the
jurisdiction of the Court depends upon the existence of some collateral fact,
it is well settled that the Court cannot by a wrong decision of the fact give
it jurisdiction which it would not otherwise possess (2).
A Tribunal may be competent to enter upon an
enquiry but in making the enquiry it may act in flagrant disregard of the rules
of procedure or where no particular procedure is prescribed, it may violate the
principles of natural justice. A writ of certiorari may be available in such
cases. An error in the decision or determination itself may also be amenable to
a writ of certiorari but it must be amanifest error apparent on the face of the
proceedings, e.g., when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which can be corrected
by certiorari but not a mere wrong decision. The essential features of the
remedy by way of certiorari have been stated with remarkable brevity and
clearness by Morris L. J. in the recent case of Rex v. Northumberland
Compensation Appellate Tribunal(3). The Lord Justice says:
It is plain that certiorari will not issue as
the cloak of an appeal in disguise. It does not lie in order to bring up an
order or decision for re-hearing of the issue raised in the proceedings. It
exists to correct error of law when revealed on the, face of an order or
decision or irregularity or absence of or excess of jurisdiction when
shown." In dealing with the powers of the High Court under article 226 of
the Constitution this Court has expressed itself in almost similar terms(1) and
said (I) Vide Halsbury, 2nd edition, Vol. IX, page 88o.
(2) Vide Banbury v. Fuller, 9 Exch. III ; R.
v. Income Tax Special Purposes Commissioners, 21 Q,B.D. 313.
(3) [19521 1 K.B. 338 at 357.
(4) Vide Veerappa Pillai v, Ramon & Raman
Ltd., [1952] S.C.R. at 594.
259 "Such writs as are referred to in
article 226 are obviously intended to enable the High Court to issue them in
grave cases where the subordinate Tribunals or bodies or officers act wholly
without jurisdiction, or in excess of it, or in violation of the principles of
natural justice, or refuse to exercise a jurisdiction ,vested in them, or there
is an 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 226 of
the Constitution.
We will now proceed to examine the judgment
of the High Court and see whether the learned Judges were right in holding that
sufficient and proper grounds existed for the issue of certiorari in the
present case.
The grounds upon which the High Court has
granted the writ have been placed in the judgment itself under three heads.
The first head point; out in what matters the
Election Tribunal acted without jurisdiction. It is said, in this connection,
that the Tribunal had no jurisdiction to extend the period of limitation for
the presentation of the election petition and it had no authority also to allow
the petitioner's prayer for amendment and to hear and dispose of the case on the
basis of the amended petition. The second head relaters to acts in excess of
jurisdiction. The Tribunal, it is said' acted in excess of jurisdiction in so
far as it went into and decided questions not definitely pleaded and put in
issue, and not only did it set aside the election of respondent No. 1 but
declared the petitioner to have been duly elected, although there was no
definite finding and no proper materials for arriving at 260 a finding, that
the petitioner could secure more votes than respondent No. 1 but for the
corrupt practices of the latter.
The third head purports to deal with errors
apparent on the face of the record. These apparent errors, according to the
High Court,, vitiated three of the material findings upon which the Tribunal
based its decision. These findings relate to the commencement of polling at one
of the polling booths much later than the scheduled time, the respondent No.
1's obtaining the services of a Government servant to further his prospects of
election and also to his lodging a false return of expenses. We will take up
these points for consideration one after another.
As regards absence of jurisdiction the High
Court is of opinion that the Tribunal acted without jurisdiction, first in
extending the period of limitation in presentation of the election petition and
secondly in allowing the petitioner's prayer for amendment and dealing with the
case on the -basis of the amended petition. The view taken by the High Court
seems to be that under the Representation of the People Act (hereinafter called
"the Act"), -no power is given to the Election Tribunal to condone
the delay, if an election petition is presented after the period prescribed by
the rules, nor is it competent to allow an amendment of the petition after it
is presented, except in the matter of supplying further and better particulars
of the illegal and corrupt practices set out in the list annexed to the
petition, as contemplated by section 83(3) of the Act.
Assuming, though not admitting, that the
propositions of law enunciated by the learned Judges are correct, we do not
think that they at all arise for consideration on the actual facts of the
present case. As regards the first matter, the election petition, as stated
above, was despatched bythe petitioner by registered post to the Election
Commission on the 11th of April, 1952, and it reached the Commission on the
14th of April following. We may take it therefore that 14th of April was the
date when the election petition 261 could be deemed to have been presented to
the Election Commission under section 81(2)(b) of the Act. Under rule 119 of
the Election Rules framed under the Act, an election petition against a
returned candidate is to be presented at any time after the publication of the
name of such candidate under section 67 of the Act, but not later than 14 days
from the date of publication of the notice in the official gazette under rule
113, that the return of election expenses of such candidate and the declaration
made in respect thereof have been lodged with the Returning Officer. It is not
disputed that this notice of the return of election expenses was published in
the Mysore Gazette on the 31st of March, 1952, and the petition therefore was
just in time as it was presented within and not later than 14 days from that
date. The High Court seems to think that in computing the period of 14 days the
date of publication is to be included.
This seems to us to be an unwarrantable view
to take which is opposed to the ordinary canons of construction. Dr. Tek Chand
appearing for the respondent No. 1 plainly confessed his inability to support
this view and we must hold therefore that there is no question of the
Tribunal's entertaining the election petition after the prescribed period in
the present case.
Coming now to the question of amendment, the
High Court, after an elaborate discussion of the various provisions of the Act,
came to the conclusion that the Election Tribunal which is a special Court
endowed with special jurisdiction has no general power of allowing amendment of
the pleadings, and that the express provision of section 83(3) of the Act,
which empowers the Tribunal to allow amendments with respect to certain
specified matters, impliedly excludes the power of allowing general amendment
as is contemplated by Order VI, rule 17, of the Civil Procedure Code. Here
again the discussion embarked upon by the High Court seems to us to be
unnecessary and uncalled for. The only amendment applied for by the petitioner
was a modification in the prayer clause by insertion of an alternative prayer
to the original prayer in the petition. No change whatsoever was sought to 262
be introduced in- the actual averments in the petition and the original prayer
which was kept intact was repeated in the application for amendment. The
alternative prayer introduced by the amendment was not eventually allowed by
the Tribunal which granted the prayer of the petitioner as it originally stood.
In these circumstances the mere fact that the Tribunal granted the petitioner's
application for amendment becomes altogether immaterial and has absolutely no
bearing on the actual decision in the case. We are unable to hold therefore
that the Tribunal acted without jurisdiction in respect to either of these two
matters.
The High Court has held that the Tribunal
acted in excess of its jurisdiction in entering into certain questions which
are not covered by the pleadings of the parties and not specifically put in
issue. The other act in excess of its authority committed by the Tribunal,
according to the High Court, is that it declared the petitioner to be a duly
elected candidate, on a mere speculation although it did not find and had no
materials to find that the petitioner could secure more votes than the
respondent No. 1. On the first point the learned Judges have referred only to
the allegation of corrupt practice made by the appellant, regarding the hiring
and procuring by the respondent No. 1 of a motor bus belonging to Ahmed Jan for
transporting his voters to the polling booths. The issue framed on this point
is issue No. 5 which is worded as follows:
"Did the first respondent hire and
procure a motor bus which was a service bus running between Tarikere and
Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph 1 of the list of
particulars and thereby commit the corrupt practice referred to in it?"
The Tribunal found that the hiring of the bus by respondent No. 1 was not
proved, but it was proved that the first respondent did procure the service bus
of Ahmed Jan, who was acting as his agent, for conveying his voters. The
Tribunal further found that even if Ahmed Jan was not an agent of the first
respondent, as - he was actually carrying the voters of the latter 263 from
Gowrapur to Sollapur in a bus, which bore the first respondent's election
symbol, with his knowledge and connivance, the first respondent must be held
guilty of the corrupt practice in question. The High Court says that as it was
nowhere alleged in the petition that Ahmed Jan was an agent of respondent No. I
or that he was carrving the voters with his connivance, the Tribunal must be
held to have acted 'in excess of its jurisdiction in going into matters which
were not definitely pleaded. We do not think that this view of the High Court
can be supported. In paragraph 8 of the petition the appellant definitely
stated that the first respondent by himself and through his agent committed
major corrupt practices, one of which was the hiring or procuring of Ahmed
Jan's motor bus. The Tribunal found, on a consideration of the evidence adduced
in the case, that the motor bus was procured by the first respondent and his
conduct in this respect, as disclosed by the evidence, showed that his voters
were being carried by Ahmed Jan with his knowledge and connivance. It may be
pointed out that in -paragraph 9 of the petition the petitioner clearly stated
that the corrupt practices were committed by respondent No. 1, or his agents,
or by several persons with his knowledge and connivance. The finding of the
Tribunal arrived at on this point is a finding of fact based on evidence
adduced by the parties and it is not in any way outside the pleadings or
inconsistent therewith.
The other ground put forward by the High
Court that the Tribunal exceeded its jurisdiction in declaring the appellant to
be the duly elected candidate, although it had no materials to come to the
conclusion that he could have secured more votes than respondent No. 1 but for
the corrupt practices committed by the latter, seems to us to be without
substance. It appears that the learned Judges did not properly advert to the
findings arrived at on this point by the Election Tribunal. The petitioner, it
may be noted, got only 34 votes less than the respondent No. 1. The Tribunal
has found that the bus of Ahmed Jan, which was procured by respondent No. 1,
did carry to the polling booths about 60 voters in two trips and in the,
circumstances of the case it could 264 be legitimately presumed that the
majority of them did vote for respondent No. 1. If the votes of at least 40 or
50 of these persons be left out of account as being procured by corrupt
practice of the first respondent, the latter's majority by 34 votes would be
completely wiped out and the petitioner would gain an undisputed majority. In
paragraph 33 of its judgment the Tribunal states as follows:
"Hence on the 14th issue we hold that
the petitioner would have obtained a majority of votes had it not been for the
aforesaid corrupt practices on the part of the first respondent." Thus the
finding is there and there is evidence in support of it. Whether it is right or
wrong is another matter and it may be that the view taken by the dissenting
member of the Tribunal was the more proper; but it cannot be said that the
Tribunal exceeded its jurisdiction in dealing with this matter.
We now come to what the High Court has
described as errors apparent on the face of the record. These errors, according
to the High Court, appear in respect of three of the findings arrived at by the
Tribunal. The first of these findings relates to the time when the polling at
Booth No. I at Ajjampur commenced on the date of election. The Tribunal has
held that the time fixed by notification was 8 A.M. in the morning but the
polling did not commence till 25 minutes after that and the result was that a
number of voters went away. It is said that some of these voters would in all
probability have voted for the appellant and as there was a difference of only
34 votes between him and the respondent No. 1 the results of the election have
been materially affected by this irregularity or violation of the election
rules. There was evidence undoubtedly to show that some of the voters went away
as the polling did not commence at the scheduled time; but the exact number of
these persons is not known and there could not be any positive evidence to show
as to how many of them would have voted for the appellant.
If the Tribunal had on the basis of these
facts alone declared the appellant to be the duly elected candidate holding 265
that he could have secured more votes than respondent No. 1, obviously this
would have been an error apparent on the face of the record, as such conclusion
would rest merely on a surmise and nothing else. The Tribunal however discussed
this matter only in connection with the question as to whether the violation of
any statutory rule or order in the holding of election did materially affect
the result of the election which would entitle the Tribunal to declare the
election of the returned candidate to be void under section 100(2) (c) of the
Act. This, the Tribunal *as competent to do under the provisions of the Act and
in doing so it could take into consideration the circumstances And
probabilities of the case. But as we have stated already, the Tribunal declared
the appellant to be duly elected upon the specific finding that, but for the
corrupt' practice of respondent No. I in the matter of procuring the service
bus of Ahmed Jan, the appellant would have got majority of the votes. We cannot
say that this is an error apparent on the face of the record which would
entitle the High Court to interfere by writ of certiorari.
As regards the other two findings, one
relates to the receiving of assistance from Paramessh warappa, who is a Patel,
by respondent No. 1, in furtherance of his prospects of election. The High
Court does not dispute the facts alleged by the appellant that Paramesshwarappa
accompanied the first respondent and actually canvassed at several places and
that he openly canvassed at one polling booth on the polling day. The ]earned
Judges say that even if these facts are believed, they only establish that
Paramessh warappa canvassed for the petitioner but that would not amount to
respondent No. 1's taking assistance from him.
This does not seem to us to be a proper view
to take. There was allegation by the appellant of the respondent No. 1's taking
assistance from a Government servant within the meaning of section 123(8) of
the Act. In proof of the allegation evidence was given of the facts mentioned
above.
If from these facts, which were found to be
true, the Tribunal drew the conclusion that there )lad been an assistance taken
from a Government 266 servant which would come within the purview of section
123(8) of the Act, it is impossible to say that this is an error apparent on
the face of the record.
The remaining finding relates to the
allegation of the petitioner that the respondent No. 1 in his return of
election expenses omitted to include several items and if they had been taken
into account the election expenses would have exceeded the sanctioned limit.
The Tribunal has held that the respondent No. 1 omitted to include, in his
return of expenses, the petrol charges, the hiring charges in respect of some
cars and vans hired by him and also the dinner expenses incurred in the hotels.
The High Court has observed that as regards the first item the finding of the
Tribunal is based on no evidence and rests on mere speculation. We do not think
that we can accept this view as correct. The first respondent stated that he
had used two cars which were his own and incurred petrol expenses to the extent
of Rs. 1,083-3-0. The Tribunal has found in paragraph 29 of its order on the
basis of both documentary and oral evidence that the respondent No. I had used
six other cars and had purchased petrol for them for the purpose of his
election campaign. The Tribunal held that the first respondent must have spent
not less than the sum of Rs. 1,250 on this account which was not included in
the list of expenses. We are unable to say that this finding rests on no
evidence.
As regards the omission to include hiring
charges the High Court has observed that the Tribunal did not record any
finding that such hiring was proved. The Tribunal has in fact found that as
regards some cars they were hired, while others had been taken on loan, the
money value for their use having been paid by the first respondent which is
tantamount to saying that he had to pay the hiring charges. The matter has been
dealt with in paragraph 29(d) of the Tribunal's order and the entire evidence
has been gone through. We are unable to say that the finding of the Tribunal
that the respondent No. 1 had omitted to include in his return of election
expenses the dinner and hotel charges is a finding unsupported by any evidence.
Reference may be made in this connection to paragraph 29(f) of the 267
Tribunal's order which deals with the matter in detail. On the whole our
opinion is that the so-called apparent errors pointed out by the High Court are
neither errors of law nor do they appear on the face of the record. An
appellate Court might have on a review of this evidence come to a different
conclusion but these are not matters which would justify the issue of a writ of
certiorari. In our opinion the judgment of the High Court cannot be supported and
this appeal must be allowed. The writ issued by the High Court will therefore
be vacated. We make no order as to costs of this appeal.
Appeal allowed.
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