PETITIONER:
HARI VISHNU KAMATH
Vs.
RESPONDENT:
SYED AHMAD ISHAQUE AND OTHERS.
DATE OF JUDGMENT:
09/12/1954
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
1955 AIR 233 1955 SCR (1)1104
ACT:
Constitution of India, Art. 226-Powers of High Court there-
under-Writ of certiorari against Election Tribunals after
they become functus officio-Certiorari against Record-
Distinction 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 record-
Interference by certiorari.
HEADNOTE:
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 Constitu-
tion, to issue writs of certiorari for quashing the
decisions of Election Tribunals, notwithstanding that they
become functus officio after pronouncing the decisions.
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 could operate.
But it is otherwise with a writ of certiorari to quash,
because it is directed against a decision which has been
rendered by a Court or tribunal, and the continued existence
of that court or tribunal is not a condition of its decision
being annulled.
Election Tribunals are subject to the superintendence of the
High Courts 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
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 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 context.
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
certiorari.
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 aside.
N. P. Ponnuswami v. Returning Officer, Namakkal
Constituency and Others ([1952] S.C.R. 218), Durga Shankar
v. Raghuraj Singh ([1955] S.C.R. 267), T. C. Basappa v. T.
Nagappa ([1955] S.C.R. 250), Clifford O’Sullivan ([1921) 2
A.C. 570), Rex v. Electricity Commissioners ([1924] 1 K.B.
171), B. v. Wormwood Scrubbs (Governor) ([1948] 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 ([1952] S.C.R. 519), Veerappa Pillai v.
Raman and Raman Ltd. and Others ([1952] S.C.R. 583), Ibrahim
Aboobaker v. Custodian General ([1952] S.C.R. 696), Rex v.
Northumberland Compensation Appeal Tribunal; Ex parte Show
([1951] 1 K.B. 711; [1952] 1 K.B. 338), Rex v. Nat Bell
Liquors Ltd. ([1922] 2 A.C. 128), Batuk K. Vyas v. Surat
Municipality (A.I.R. 1953 Bom. 133), Julius v. Bishop of
Oxford ([1880] L.R. 5 A.C. 214), Woodward v. Sarsons ([1875)
L.R. 10 C. P. 733), Vashist Narain v Dev Chandra ([1955]
S.C.R. 509) and In Be South Newington Election Petition
([1948] 2 A.E.R. 503), referred to.
1107
JUDGMENT:
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 decide”.
Under this rule, the Election Commission had decided that
the ballot papers for the Parliamentary Consti-
142
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 petition.
The appellant then moved the High Court of Nagpur under
articles 226 and 227 of the Constitution for the issue of a
writ of certiorari or other order or direction for quashing
the decision of the Election Tribunal on the ground that it
was illegal and without jurisdiction. Apart from supporting
the decision on the merits, the first respondent contended
that having regard to article 329(b) the High Court was not
competent to entertain the petition, as in substance it
called in question the validity of an election. The
petition was heard by a Bench consisting of Sinha, C. J.,
Mudholkar and Bhutt, JJ., who differed in their conclusions.
Sinha, C. J., and Bhutt, J., held that no writ could be
issued under article 226, firstly because the effect of
article 329(b) was to take away that power, and secondly,
because the Election Tribunal had become functus officio
after the pronouncement of the decision, and that 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 ac-
cordingly 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 Legislature”.
Now, the question is whether a writ is a proceeding in which
an election can properly be said to be called in question
within the meaning of article 329(b). On a plain reading of
the article, what is prohibited therein is the initiation of
proceedings for setting aside an election otherwise than by
an election petition presented to such authority and in such
manner as provided therein. A suit for setting aside an
election would be barred under this provision. In N. P.
Ponnuswami v. Returning Officer, Namakkal Constituency and
Others(1) it was held by this Court that the word “election”
in article 329(b) was used in a comprehensive sense as
including the entire process of election commencing with the
issue of a notification and terminating with the declaration
of election of a candidate, and that an application under
article 226 challenging the validity of any of the acts
forming 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) [1952] 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 anomalous.
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 exercised”.
By parity of reasoning it must be held that the power of the
High Court under article 226 to issue writ of certiorari
against decisions of Election Tribunals remains equally
unaffected by article 329(b).
It is next contended that even if there is jurisdic-
(1) [1955] 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. Co.(2)”.
In Corpus Juris Secundum, Volume 14 at page 123 the nature
of a writ of certiorari for quashing is thus stated:
“It is not a proceeding against the tribunal or an
individual composing it; it acts on the cause or proceeding
in the lower court, and removes it to the superior court for
reinvestigation”.
The writ for quashing is thus directed against a record, and
as a record can be brought up only
(1) [1955] S C.R. 250.
(2) [1879] 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 effective.
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 exercised.
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 Com-
missioners; London Electricity Joint Committee Co. (1920),
Exparte(2) as establishing that there was no
(1) (1921] 2 A.C. 570.
(2) [1924] 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 annulled.
In this context, the following passage from Juris Corpus
Secundum, Volume 14, page 126 may be usefully quoted:
“Although similar to prohibition in that it will lie for
want or excess of jurisdiction, certiorari is to be
distinguished from prohibition by the fact that it……..
is directed to the cause or proceeding in the lower court
and not to the court itself, while prohibition is a pre-
ventive remedy issuing to restrain future action and is
directed to the court itself”.
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 Morpeth(3)]“.
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) [1921] 2 A. C. 570.
(3) 118481 15 Q. B. 446.
(2) (1833] 5 B. & Ad. 681.
(4) [1948] 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
certiorari.
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 observed:
“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 decisions.
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) [1954] 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 de-
cide wrong as well as right, and when the Legislature does
not choose to confer a right of appeal against that
decision, it would be defeating its purpose and policy, if a
superior Court were to re-hear the case on the evidence, and
substitute its own findings in certiorari. These
propositions -are well settled and are not in dispute.
(4) The further question on which there has been some
controversy is whether a writ can be issued, when 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) [1952] S C.R. 519. (2) [1952] S.C.R. 583.
(3) [1952] S.C.R. 696. (4) (1955] S.C.R. 250.
(5) [1951] 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 follows:
“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
quashing it”.
In Rex v. Nat Bell Liquors Ld. (2) Lord Sumner said:
“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 record”.
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) [1879] 4 A.C. 30.
(3) [1961] 1 K. B. 711.
(2) [1922] 2 A.C. 128.
(4) [1952] 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 wrong
decision”.
It may therefore be taken as settled that a writ of
certiorari could be issued to correct an error of law. But
it is essential that it should be something more than a mere
error; it must be one which must be manifest on the face of
the record. The real difficulty with reference to this
matter, however, is not so much in the statement of the
principle as in its 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) [1952] S.C.R. 583. (2) [1955] 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) [1880] 5 A.C. 214.
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 identified”.
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) [1875] 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 bar.
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 station.
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 re-
1129
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 Courtin 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) [1955] 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 declaration.
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 thereunder”. 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 co-
extensive 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 non-
compliance 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) [1875] 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 parliamentary elections”.
This was merely a decision on the facts that the departure
from the prescribed rules of election at the polling
stations was not so fundamental as to render the election
not one “conducted in accordance with the principles laid
down under the body of this Act”
Reliance was placed on certain observations in Re South
Newington Election Petition(1). In that case, the ballot
paper had been rejected by the 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 mani-
fest on the face of the record, and calls for interference
in certiorari.
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 Commis-
sion will now proceed to hold a fresh election.
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.
Appeal allowed.