TMI Blog1954 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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 respondept 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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, ₹ 5,000 as per particulars stated in paragraph 7 of the list of particulars (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 judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rative 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 ((1924] I K.B. 17I at 205.) : Whenever any body 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 II th of April, 1952, and it reached the Commission on the 14th of April following. We may take it theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 belongi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected 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 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 Tribunalstates 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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